[00:00:01] Speaker ?: Case number 19, national 1101NL, Pacific Maritime Association Petitioner versus National Labor Relations Board. [00:00:09] Speaker ?: Mr. Pennealy, petitioner. [00:00:11] Speaker 02: Mr. Weiss, the respondent. [00:00:54] Speaker 01: Good morning, Your Honors. [00:00:54] Speaker 01: Good morning. [00:00:55] Speaker 01: May it please the Court. [00:00:56] Speaker 01: Michael Keneally on behalf of Petitioners. [00:01:00] Speaker 01: The National Labor Relations Act makes it an unfair labor practice to refuse to bargain collectively over the so-called mandatory subjects of bargaining. [00:01:11] Speaker 01: But a long line of precedent from this Court, as well as the Board, holds there is no continuous duty to bargain over a mandatory subject that the parties have already bargained over. [00:01:23] Speaker 01: And where the parties have memorialized that bargain in a collective bargaining agreement, an unfair labor practice would occur only if the employer departed so far from the terms of the collective bargaining agreement as to effectively terminate or modify it. [00:01:39] Speaker 01: This court has often stressed that the board's authority to find this type of unfair labor practice is constrained by the board's very limited role in the enforcement and interpretation of collective bargaining agreements. [00:01:51] Speaker 01: The board is not allowed to treat the mere breach of a contract as an unfair labor practice because Congress specifically denied the board that power. [00:02:00] Speaker 01: Parties instead are supposed to rely on the contractual grievance and arbitration procedures in their contracts to vindicate their views about what those contracts mean. [00:02:10] Speaker 01: And for this reason, the court does not give any deference to the board's interpretation of a collective bargaining agreement, making this petition for review quite unlike a lot of them. [00:02:21] Speaker 01: The upshot of these principles is that the Board is not permitted to inject itself into a purely contractual dispute, as the Court put it in Honeywell. [00:02:30] Speaker 01: And we believe that is exactly what the Board did here. [00:02:34] Speaker 01: It essentially held that petitioners had not complied with the terms of the Watchman's agreement with Local 26 and their handling of the Marine Clerk's complaint against Mr. Plays. [00:02:46] Speaker 01: Because the Board is not entitled to make such a determination, [00:02:50] Speaker 01: the court should set that order aside. [00:02:52] Speaker 01: And as the court knows, there were two bases for the board's unfair labor practice conclusion here. [00:03:00] Speaker 01: There was the contract modification theory and the unilateral change theory. [00:03:06] Speaker 03: Mr. Kaley, what is the appropriateness of those two theories being presented for the same charge? [00:03:15] Speaker 01: a question that both the board and the courts I think have grappled with over the years. [00:03:19] Speaker 01: We think that [00:03:21] Speaker 01: it's inappropriate for the board to be able to characterize the same conduct as both a breach of a contract and an action that has no connection with the contract. [00:03:34] Speaker 01: We think that the key question under the terms of Section 8A-5 and 8D is whether the parties have fulfilled their obligation to bargain over the mandatory subject of bargaining. [00:03:47] Speaker 01: And here, I think both sides agree that the mandatory subject of bargaining is first and foremost the imposition of contested disciplinary action, or perhaps the standards of conduct with respect to harassment in the workplace. [00:04:00] Speaker 01: But it's clear that the parties bargained over both of those subjects here. [00:04:03] Speaker 01: And so if it's the case, as we contend, [00:04:06] Speaker 01: that the petitioners did not violate the terms of the collective bargaining agreement with respect to those mandatory subjects of bargaining. [00:04:13] Speaker 01: It seems to undermine that very conclusion to turn around and say that they unilaterally imposed new terms and conditions of employment with respect to the same mandatory subjects of bargaining. [00:04:25] Speaker 03: So you do think it's inappropriate to bring both of those for the same underlying conduct? [00:04:30] Speaker 01: Well, we think that if you agree with us, so I'm talking right now about cases in which the employer is relying on a term in the contract as a sort of justification for the actions. [00:04:43] Speaker 01: And in those situations, as opposed to ones where there's nothing in the contract that covers the mandatory term of bargaining, yes, we do think that they're two sides of the same coin. [00:04:53] Speaker 01: And we think that's the view that this court adopted in the Honeywell decision, where [00:05:00] Speaker 01: addressing what was first and foremost in contract modification argument, the court relied on its contract coverage case law, which addresses the unilateral change sort of situation. [00:05:13] Speaker 01: And we think that the first circuit in the Bath Marine Dressmen Association cases came to the same conclusion essentially, which is in both cases if we're talking about [00:05:23] Speaker 01: contract interpretation, well the board has to stay within its very narrow lane because Congress wanted those issues to be aired in grievance and arbitration, which is a much more streamlined process than it's the process that the parties bargain for in many of these contracts. [00:05:39] Speaker 01: I would also point the court on this very question to the metal cramped case, which is a board decision that we cite in our reply brief from 2019. [00:05:50] Speaker 01: And in addition to addressing the standard for sound arguable basis, the board grapples with this question a little bit and seems to come to a similar place at the end of the day that if the employer is raising a contractual defense, [00:06:07] Speaker 01: to a contract modification sort of charge, then the unilateral change theory kind of falls out of the picture. [00:06:17] Speaker 01: And so we think that's the correct view, and we think that's the view that's most consistent not only with the statutory text, which requires bargaining over, as the courts have interpreted it, [00:06:27] Speaker 01: mandatory subjects of bargaining, but also the long line of precedent that talks about the board's limited role in enforcing and interpreting disputed... I guess I didn't read your brief to take on, to contest the idea that there is a sound, arguable basis doctrine that applies. [00:06:45] Speaker 02: I thought what your argument was is that the board was just wrong to think that [00:06:49] Speaker 02: the interpretation of the contract was lacking in a sound arguable basis. [00:06:54] Speaker 01: That's exactly right, Your Honor. [00:06:55] Speaker 01: We think that the sound arguable basis standard is the correct standard, but that it's a pretty, it's not a very demanding standard, and we agree with Your Honor's characterization. [00:07:07] Speaker 02: So if the sound arguable basis standard does apply, then there is such a thing [00:07:11] Speaker 02: as an unlawful, a ULP, is it unlawful? [00:07:15] Speaker 02: I can't even remember what the... Unfair labor practices. [00:07:17] Speaker 02: Unfair, thanks, I knew it was not unlawful, unfair. [00:07:20] Speaker 02: So it's unfair labor practices. [00:07:22] Speaker 02: There is such a thing as that with respect to the interpretation of the contract if there's no sound arguable basis for the interpretation of the contract. [00:07:29] Speaker 02: That's correct, sir. [00:07:30] Speaker 02: And if there's no sound arguable basis for the interpretation of the contract, I know you disagree with that premise, but if there is no sound arguable basis for the interpretation of the contract and the subject matter at issue is [00:07:41] Speaker 02: pertains to mandatory bargaining, then the other doctrine kicks in too. [00:07:46] Speaker 01: Yes, I would say what I was trying to express was that I don't think you'd find a situation very often, maybe ever, where there is a sound arguable basis for the employer's position in the contract, but also the contract does not cover that mandatory subject of bargaining so that you could then be exposed to an unfair labor practice under the alternative. [00:08:08] Speaker 01: unilateral change theory. [00:08:10] Speaker 01: But I do agree that if you lack a sound arguable basis then there's an unfair labor practice maybe under both theories as well. [00:08:17] Speaker 01: I was just trying to resist the pulling apart of those two theories as I think the board attempts to do sometimes where there may be a sound arguable basis but then it might still be a unilateral change that's not covered by the contract. [00:08:29] Speaker 01: But under the sound arguable basis standard, as Your Honor was alluding, we do think that the petitioners satisfied that here. [00:08:37] Speaker 01: And the starting point for that test, I would submit, is the Board's decision in Bath Iron Works, which says the first thing that the Board has to prove is that there was a specific term in the collective bargaining agreement [00:08:51] Speaker 01: that petitioners modified. [00:08:53] Speaker 01: And here, the Board's decision only points to two items in the Collective Bargaining Agreement and the Watchman's Agreement. [00:08:59] Speaker 01: That would be the procedures for handling employer complaints and the Article 18H, which talks about how the grievance machinery shall be the exclusive remedy with respect to any dispute arising under the Collective Bargaining Agreement. [00:09:16] Speaker 01: And under both of those provisions, we submit, the petitioners had a sound arguable basis for thinking that their conduct was consistent with those terms. [00:09:26] Speaker 01: And first, on the procedures for employer complaints, what's undisputed here was no employer complaint. [00:09:32] Speaker 01: Long Beach considered filing one and thought it lacked sufficient evidence to pursue it, and so declined to do so. [00:09:40] Speaker 01: The complaint here was filed by the marine clerk under a totally separate bargaining agreement, the PCLNCA, and it was processed as such, but neither Long Beach nor Pacific Maritime [00:09:56] Speaker 01: encouraged the Marine clerk to file that or advocated for a finding of liability against Mr. Plays. [00:10:02] Speaker 01: That was a process driven solely by the Marine clerk and his union, Local 63, and so cannot be construed, even if you set aside the deferential sound arguable basis standard. [00:10:15] Speaker 01: as the filing of an employer complaint here. [00:10:19] Speaker 01: And so we would submit that when you also look at it through the sound article basis standard, then it follows even more forcefully that the petitioners did not modify the terms of the agreement. [00:10:31] Speaker 01: And with respect to the exclusive remedy clause, we've argued that if you read the clause as a whole, it shows that the exclusive remedy provision is talking about remedies used by the union, the employer, or a covered employee. [00:10:46] Speaker 01: As I just said, the employee here is not covered by the watchman's agreement. [00:10:50] Speaker 01: He's the marine clerk covered by the PCL and CA. [00:10:52] Speaker 01: And we don't even think that this is a dispute arising under the Watchman's agreement because it really arose and proceeded under the PCL and CA. [00:11:04] Speaker 01: And so if you look at the sound article basis standard that the board has, [00:11:09] Speaker 01: expressed in the Bath Iron Works case and then again in the Metal Craft case which I just mentioned, it's clear that the petitioners had reasonable interpretations of the agreement and maybe not the strongest, maybe they are, maybe they're not, but that's not the board's role to figure out which interpretation is the better view of the contract. [00:11:30] Speaker 02: Why would it make sense to read the agreement in the way that you're suggesting given that [00:11:36] Speaker 02: We know that for the employer to impose discipline, when the employer initiates a complaint, they need to go through the article against the watchman, where the watchman is the alleged perpetrator, that the Article 18 complex is what kicks in. [00:11:51] Speaker 01: Well, it's not clear that the employer always has to file an employer complaint in order to impose discipline. [00:11:57] Speaker 01: There are certainly categories of conduct for which they do not have to do so. [00:12:01] Speaker 02: You mean that proviso that deals with the four categories [00:12:05] Speaker 01: Right, there's a proviso that says that the Labor Relations Committee cannot impose rules that restrict the employer's ability to take unilateral discipline in those categories. [00:12:17] Speaker 01: The agreement does not say very clearly one way or the other whether in all other cases an employer complaint must be filed. [00:12:25] Speaker 01: It has been that often employers will file such complaints, but it's not clear from the record and I don't think the board found that there is a [00:12:34] Speaker 01: clear unbroken practice of employer complaints in position of discipline. [00:12:45] Speaker 01: Why would the parties have wanted the imposition of discipline to occur through other mechanisms? [00:12:52] Speaker 01: Outside the auspices of this. [00:12:53] Speaker 01: In any situation. [00:12:55] Speaker 01: And I think that the multi-bargaining unit context here is very important because the [00:13:05] Speaker 01: Workplace harassment allegations in particular, and the reason why Section 13.2 exists for the PCL and CA, are things that the employer is not in a position to observe often. [00:13:17] Speaker 01: Certainly Pacific Maritime is not on the work site in many of these cases. [00:13:21] Speaker 01: And so it's not positioned to assess whether the conduct occurs and is not positioned to [00:13:29] Speaker 01: pursue those claims on its own based on an allegation that it believes that the harassment occurred. [00:13:36] Speaker 01: And so in the PCLNCA, it was important to allow the employees to file complaints on their own. [00:13:47] Speaker 01: The Watchmen's agreement simply doesn't address [00:13:50] Speaker 01: that kind of scenario because the only covered employees, it's undisputed, had no right to pursue those kinds of complaints under the agreement. [00:14:03] Speaker 01: If we were dealing with that sort of situation where a watchman was trying to complain of workplace harassment, I think that Your Honor's sort of purposes of the contract point would have some force. [00:14:18] Speaker 01: But the ability of [00:14:20] Speaker 01: the Local 26 to constrain the ability of uncovered employees like the Marine Clerk here is something that Pacific Maritime at least would not have agreed to because it knew it was bound by the PCL and CA [00:14:36] Speaker 01: as well. [00:14:37] Speaker 01: And so as the court's decision in local union 1395 case points out, where you don't have a meeting of the minds between the parties, you don't have an enforceable contract provision. [00:14:49] Speaker 01: And here, there's really no evidence to suggest that Pacific Maritime or Long Beach was open to limiting the ability of marine clerks to pursue discipline. [00:14:59] Speaker 01: And under the terms of the PCL and CA, [00:15:02] Speaker 01: the employer has no ability to resist or no discretion with respect to a decision under Section 13.2. [00:15:10] Speaker 01: That was the testimony at the ALJ hearing. [00:15:13] Speaker 03: So if the watchman's agreement is silent as to what happens in this type of situation, then [00:15:23] Speaker 03: Then why isn't it a unilateral change when the employer, when PMA imposes this type of discipline on the watchman? [00:15:35] Speaker 03: Because that would be a mandatory subject of bargaining. [00:15:38] Speaker 03: And so if the contract is silent, [00:15:41] Speaker 01: Yes, I understand the question, Your Honor. [00:15:44] Speaker 01: The contract is silent with respect to the specific fact pattern that we're dealing with here. [00:15:49] Speaker 01: That's true, the inter-union sort of complaint of misconduct. [00:15:55] Speaker 01: But the court's contract coverage cases are very clear that in order for an agreement to cover a mandatory term of bargaining so as to prevent a determination of a unilateral change, [00:16:10] Speaker 01: the contract does not need to address the specific mention, the specific factual pattern. [00:16:17] Speaker 01: And I would point the court to the United States Department of Justice versus FLRA case from 2017 that we cite. [00:16:25] Speaker 01: And in that case, the court dealt with this exact concern and said that the parties had negotiated over a set of procedures to deal with the mandatory term of bargaining. [00:16:37] Speaker 01: And here, likewise, the parties clearly have a set of procedures in place for dealing with disputed imposition of discipline. [00:16:48] Speaker 01: In fact, as my friend on the other side notes on page 32 of the board's brief, if the language in the Watchman's agreement does not encompass contested disciplinary actions against bargaining unit employees, it is difficult to conceive what language would. [00:17:01] Speaker 01: Well, that much we agree with. [00:17:04] Speaker 01: The mandatory subject [00:17:06] Speaker 01: bargaining that is contested disciplinary actions is clearly addressed in Article 18C of the Watchman's Agreement, which gives the union and the worker who believes that discipline has been improper the right to grieve and arbitrate that. [00:17:24] Speaker 01: And if the union can instead go to the National Labor Relations Board and short-circuit that process, [00:17:33] Speaker 01: I say short circuit, but that's in some ways inaccurate because the National Labor Relations Board proceedings take years, as this case shows, whereas the grievance and arbitration proceedings is supposed to be a speedy and less formal way of addressing these kinds of disputes. [00:17:46] Speaker 01: But if they can short circuit that by going to the board instead, well, the very repose and stability that the collective bargaining relationship is supposed to include will be [00:17:59] Speaker 01: will be significantly undermined. [00:18:01] Speaker 01: And so we think that the mandatory term of bargaining for purposes of the contract coverage issue is the imposition of contested discipline. [00:18:12] Speaker 01: The parties had a set of rules in place to deal with that issue. [00:18:15] Speaker 01: The union chose not to avail itself of those rules here, and we think it should have had to do so. [00:18:23] Speaker 01: I see I'm running over my time. [00:18:26] Speaker 01: The other point that's sort of independent of the points we've talked about already is the question that's in some ways antecedent to the contract coverage question, which is whether there was an established practice shown by the board's general counsel that the parties departed from. [00:18:43] Speaker 01: We think that the general counsel bears the burden of showing that because it is an element of a unilateral change. [00:18:49] Speaker 01: case and we think that the board failed to do so here and instead it's trying to require the petitioners to show that there was an established practice to justify what took place here. [00:19:06] Speaker 01: But if that were the case, the board would be able to avoid showing the [00:19:14] Speaker 01: the most essential requirement of its unilateral change case and shift the burden of proof onto petitioners. [00:19:22] Speaker 01: I think it's undisputed here that the parties had not confronted this fact pattern before, but the terms of the PCL and CA and the letters of understanding were, especially since 2014, completely clear that this sort of complaint could proceed against a watchman under the Section 13.2 procedures. [00:19:43] Speaker 01: And the union was on notice of that. [00:19:47] Speaker 01: Its president testified, Local 26's president testified that she was familiar with the 13.2 procedures, and that's why she didn't want to include them for Watchman in their contract. [00:20:01] Speaker 01: And if that's the case, then any [00:20:04] Speaker 01: argument that the mere agreement to allow such procedures should have been brought up as an unfair labor practice within six months of when that policy was adopted. [00:20:15] Speaker 01: So no later than 2014 and probably even earlier than that. [00:20:21] Speaker 01: And because the board has not shown a departure from an established practice on any of the three points that we addressed in our brief, we think that that is an independent reason for rejecting liability under the unilateral change theory. [00:20:47] Speaker 00: Morning, may it please the court? [00:20:49] Speaker 00: Eric Weiss on behalf of NLRB. [00:20:51] Speaker 00: This case involves the fundamental purpose of the National Labor Relations Act, which is the protection of the collective bargaining process and the results that that process produces. [00:21:02] Speaker 00: If I can take a step back and begin at the level of the legal violations here and to answer your initial question, Judge Rao, the board found in this case both a midterm modification violation [00:21:16] Speaker 00: and a unilateral change violation, which are distinct violations in terms of the theory of what's at issue, the standard of reviewing it, and the actual remedy. [00:21:28] Speaker 03: So are they different violations or are they different theories of the same violation? [00:21:34] Speaker 03: Because the board's decision talks about it in a number of places as a theory of violation. [00:21:40] Speaker 00: Well, they're both theories of a violation of Section 8A5 of the Act, which prohibits the refusal to bargain. [00:21:46] Speaker 00: but they're ultimately distinct actual unfair labor practices. [00:21:50] Speaker 00: So for example, in this case, the board's remedy includes distinct remedial components to both. [00:21:57] Speaker 00: In this case, either one would be sufficient for most of the remedy, which is making whole the individual who was unlawfully suspended. [00:22:05] Speaker 00: But for the midterm modification, there is a remedial provision that the employer needs to abide by the terms of the contract. [00:22:12] Speaker 00: In contrast, with the unilateral change violation, [00:22:14] Speaker 00: The remedy is a requirement that the employer has to notify the union and bargain to good faith impasse before taking a unilateral change. [00:22:23] Speaker 00: So the midterm modification is actually a broader or more comprehensive remedy because it prevents an employer from taking this change during the life of a contract. [00:22:34] Speaker 00: Whereas with a unilateral change, even if the board finds an unfair labor practice and unlawful unilateral change, [00:22:41] Speaker 00: and there's an active collective bargaining agreement, the employer can still say, well, we think this change is important and we need to make it anyway. [00:22:49] Speaker 00: And so we're going to bargain with the union. [00:22:51] Speaker 00: And if we get to good faith impasse, we can then implement it unilaterally. [00:22:55] Speaker 00: So the board did find two distinct violations here. [00:22:59] Speaker 00: And I'd also note that the employer did not challenge the fact that the board found both in its opening brief or before the board. [00:23:07] Speaker 00: And in addition, this court, in the Dodge of Naperville case, which we cite in our brief, has previously enforced a board decision finding both violations. [00:23:18] Speaker 00: And to clarify what's at issue, which I think is helpful in the Bath Iron Horse case, the way that the board frames it there, [00:23:24] Speaker 00: The midterm application issue is whether there's something in the contract that forbids what the employer did, whereas the unilateral change question is whether there's anything in the contract that affirmatively privileges their right to act unilaterally under this court's contract coverage standard. [00:23:43] Speaker 02: Can I ask this to, so I think you answered it based on what you already said, but the board starts out its decision by saying we affirm its findings, the ALJ's findings, [00:23:55] Speaker 02: that respondents violate 85 and 1 under either of the general counsel's alternative theories. [00:24:00] Speaker 02: But then to grant your cross application for enforcement, it wouldn't be enough just to sustain one of the theories, right? [00:24:08] Speaker 02: Because the order has provisions that pertain uniquely to both. [00:24:14] Speaker 00: That's correct. [00:24:15] Speaker 00: To enforce the full order, the court would need to affirm both violations. [00:24:20] Speaker 00: As I was mentioning earlier, if the court were to affirm one or the other, that would substantially, either one would be sufficient for most of the board's order, including the make-hole relief, but the board is seeking enforcement both. [00:24:34] Speaker 00: So they are, you know, they're substantially overlapping theories. [00:24:37] Speaker 00: And they could be pled in the alternative, but in this particular case the board found two distinct violations which have different standards. [00:24:45] Speaker 00: The one being the sound arguable basis standard, because the remedy is more aggressive it's a more difficult standard. [00:24:53] Speaker 00: And then their contract coverage standard for the unilateral change violation. [00:25:00] Speaker 00: To move on to the midterm obligation violation, I just point out to the court as we explained in our brief, there's basically three levels of the board's finding of a violation here. [00:25:10] Speaker 00: First of all, there's the clear language of the watchman's agreement, which the board found, I think, reasonably prohibits the type of discipline of a local 26 watchman that occurred here, because if you read section or article 18 in whole, [00:25:30] Speaker 00: it's clear that the parties contracted to a procedure where any form of discipline, such as suspension of a local 26 watchman, had to go through this contractual procedure. [00:25:42] Speaker 00: And to just briefly summarize what that procedure is, there's an initial step [00:25:46] Speaker 00: which is sort of an informal resolution, which if the court looks in particular at Article 18D2, which specifically references cases of discipline or discharge, it requires the employers at the ports to consult with a representative, Local 26, and to attempt to resolve the issue informally, which it appears from the record is how [00:26:11] Speaker 00: perhaps a majority or a vast majority of these cases are resolved. [00:26:15] Speaker 00: But if you have a situation where the employer wants to discipline a local 26 watchman and it cannot be resolved, where the union does not agree at this initial stage, the contract requires the employer to file an employer complaint with the Joint Labor Relations Committee, which then considers the issue and hears evidence. [00:26:33] Speaker 00: And if they cannot resolve it, it goes through a contractual arbitration mechanism. [00:26:40] Speaker 02: article apply in a case in which the claim, the complaint is brought by another employee covered by a different agreement? [00:26:51] Speaker 00: Well, Your Honor, if you read Article 18, there's simply no exception to this contractual procedure. [00:26:57] Speaker 00: In fact, Article 18-H makes clear that this is [00:27:01] Speaker 00: by the terms of the contract, the exclusive procedure for dealing with alleged Watchman misconduct. [00:27:08] Speaker 00: And there's no carve out to that suggesting that there's any different process if it's a non-unit employee making the allegation or limiting the contract to allegations of harassment, for example, made by [00:27:20] Speaker 00: bargaining union employees. [00:27:22] Speaker 00: And in addition to Article 18, Article 16 of the contract specifically prohibits discrimination by watchmen against any person, to quote the contract. [00:27:33] Speaker 00: It's not limited to watchmen on watchmen harassment. [00:27:38] Speaker 00: And in addition, empirically, the parties have historically resolved allegations of harassment or misconduct using the Article 18 procedure inciting Article 16 and Article 18. [00:27:51] Speaker 00: In fact, in this exact case, the general manager for Long Beach Container Terminal wrote a letter to the union [00:27:58] Speaker 00: warning, a non-disciplinary letter warning them that if there were future instances of misconduct, it would be, it would result in an employer complaint being filed with the Joint Liberation. [00:28:09] Speaker 02: But the marine clerk, is the board of you that the marine clerk can't invoke the 13.2 procedure? [00:28:15] Speaker 00: Well, Your Honor, the Board made clear that the issue is not the Marine Clerk's rights to have a contractual procedure under his contract negotiated by his exclusive representative to protect him from harassment and to allow him to make these claims. [00:28:30] Speaker 00: The issue in this case is whether the Marine Clerk and his union have the right to basically dictate the disciplinary procedures for an employee who's in a separate bargaining unit [00:28:42] Speaker 00: So how does it work out in practice? [00:28:44] Speaker 02: So if we are in a situation in which the marine clerk does have the ability to proceed under 13.2 of his agreement, then how does Article 18 then kick in? [00:28:56] Speaker 02: Because I take your point that, well, but then there's this other agreement that says where the watchman is the person who's going to be the subject of discipline, this agreement can be read to say the employer, in order to impose the discipline, has to proceed by the Article 18 route. [00:29:10] Speaker 02: But then there's a separate agreement that says when a non-watchman or a marine clerk is the one who wants to bring the complaint, they can go via 13.2. [00:29:19] Speaker 02: So then what happens? [00:29:19] Speaker 02: How do these things? [00:29:21] Speaker 00: Well, what happens, Your Honor, is, as the Board noted in a footnote, the two contracts are not on equal footing insofar as they both purport to dictate how a Local 26 Watchman can be disciplined. [00:29:34] Speaker 00: So, I mean, the practical result would be that the Marine Clerk could file the Section 13.2 grievance and that would not be a concern in itself, but at the point where the employers apply that procedure to a Local 26 Watchman and then actually discipline him, [00:29:51] Speaker 00: That's a violation of the act because it both modifies the agreement they entered into with the local 26 employees representative and it's also a unilateral change. [00:30:00] Speaker 00: So it's not that the board invalidated the 13.2 watchman or the 13.2 agreement, but the board found that for the employers to then basically choose which contract they prefer and apply that [00:30:15] Speaker 00: to an employee in a different bargaining unit, that is a violation of the act. [00:30:21] Speaker 00: So in that sense, the marine clerk does not have a statutory or legal or contractual right to require this employee to be disciplined. [00:30:31] Speaker 00: But I just want to stress that the board was not invalidating section 13.2 where there's different contract. [00:30:38] Speaker 02: So it's from the board's perspective, basically, what the board says is, look, yeah, there's a separate contract that has a 13.2 procedure in it. [00:30:44] Speaker 02: The employer just got itself into a situation in which it has these two contracts. [00:30:49] Speaker 02: That's not for us to work out. [00:30:52] Speaker 02: It's just that we know that for the purposes of a watchman, who's going to be the subject of discipline, his union negotiated the Article 18 procedure, and that just has to be followed. [00:31:05] Speaker 02: We're not sitting in review of what's going to happen with respect to the 13.2 procedure. [00:31:09] Speaker 02: It does look like there's a contract that gives the marine clerk the ability to invoke that, but that's on the employer. [00:31:13] Speaker 00: That's exactly right, Your Honor, and I'd also point out that the Section 13.2 is a fairly expansive procedure, and what we're talking about here is really just a single parenthetical in the 2014 letter of understanding. [00:31:26] Speaker 00: So even the scope of what we're referring to is a very small part of Section 13.2, but to expand on your point, Your Honor, first of all, I just want to stress the board found here is statutory violation, and so there's the statutory element of [00:31:41] Speaker 00: you know, the watchmen have a statutory right to have their own exclusive borrowing representative who's the only union or representative who bargains with the employer over their terms of employment. [00:31:54] Speaker 00: But even if this were a breach of contract case, which is not, it's a well-known [00:32:02] Speaker 00: element of contract law that it's not a defense to an alleged breach to say, well, we deliberately entered into two conflicting contracts. [00:32:10] Speaker 00: Typically under contract law, the defendant would be liable to both entities for a potential breach of contract. [00:32:17] Speaker 00: But again, here it's a much more narrow issue that's actually on review before the court, which is whether the board was justified in finding a violation of the NLRA in section 85 of that statute. [00:32:30] Speaker 00: So returning just briefly to the miniature modification violation and the employer's argument to the court, I'd just like to emphasize what we say in our brief that the fact that the employers did not file an employer complaint in this case is essentially itself a violation because the contract raised this procedure where if the employers want to discipline an employee over the objections or without the [00:32:56] Speaker 00: the consent of the union, they need to file a complaint with this contractual joint labor relations committee. [00:33:02] Speaker 00: So it's not a sound, arguable basis of the contract to simply say, well, we deliberately went outside of what the contract requires, and so therefore we're not within the parameters of the contract. [00:33:15] Speaker 00: In addition, I would dispute what the employers argued in their opening argument that the board did not find that there was an unbroken practice of filing employer complaints. [00:33:25] Speaker 00: That's true in the sense that a lot of discipline does not require an employer complaint because it's resolved at this informal stage. [00:33:32] Speaker 00: But the Board did find, as a factual matter, and in fact the record shows, has no evidence of any contrary discipline, that all discipline against Local 26 Watchman went through this Article 18 procedure. [00:33:46] Speaker 00: So as we note in our brief, it's curious that the employers are now proposing an interpretation of the contract where they have essentially an unfettered right to unilaterally issue discipline [00:33:58] Speaker 00: without going through this procedure because there's no evidence they haven't produced a single example of any employee ever being disciplined without going through that procedure. [00:34:07] Speaker 00: And so even if the courts not agree with the board that the language of the Washman's agreement is clear, as we point out in our brief and the board points out in its decision, the uniform past practice of the parties confirms the board's reading of the contract. [00:34:22] Speaker 00: And in addition, something very significant in this case is that for a section [00:34:27] Speaker 00: 13.2 in particular, the parties have actually bargained over this in successive rounds of collective bargaining. [00:34:34] Speaker 00: And Local 26 has historically made it very clear that they do not want this procedure where Local 26 watchmen can be disciplined based on individual employee complaints without the involvement of the union and without the involvement of the Joint Labor Relations Committee. [00:34:48] Speaker 00: So it's not for the board or this court to determine, you know, whether there's merit to that position. [00:34:53] Speaker 00: But the fact is, as the board found and substantial evidence supports, that the parties specifically discussed this at bargaining and the union convinced the employers to withdraw their proposals to incorporate Section 13.2 or similar procedures into the Watchman's agreement. [00:35:09] Speaker 02: When you say that the language of the agreement is dispositive in response to the point that there was no employer complaint filed in this case, [00:35:17] Speaker 02: your view of the agreement has to be that, yeah, there's some provisions that deal with the employer filing a complaint, but the agreement also has to cover the situation in which an employer doesn't file a complaint, right? [00:35:34] Speaker 00: 18D2, if it's an instance of discipline or discharge, the employer needs to attempt to resolve the matter with Local 26 involved at this initial informal stage. [00:35:48] Speaker 00: And it appears that's how most discipline is handled. [00:35:52] Speaker 00: But if Local 26 objects to discipline and the employer still wants to discipline or suspend an employee to do so, they need to file a complaint with the Joint Labor Relations Committee. [00:36:01] Speaker 00: And also, if I can just [00:36:02] Speaker 00: point out some context in case that procedure seems counterintuitive or very beneficial to the union. [00:36:08] Speaker 00: It's important to remember this isn't a traditional employer relationship like, you know, a factory worker. [00:36:14] Speaker 00: This is an employer relationship which is handled through a dispatch hall. [00:36:18] Speaker 00: So there are steady watchmen who work for the same employer, but many of the watchmen, including Mr. Pleas in this case, are dispatched out on a short-term basis. [00:36:28] Speaker 00: perhaps for a day at a time. [00:36:30] Speaker 00: And that's why the parties contracted your procedure where if an employer wants to suspend or affect the dispatch rights of a watchman, they need to go through this more formalized process and to file a complaint. [00:36:44] Speaker 00: And I see that I'm over time. [00:36:45] Speaker 00: If the court wouldn't mind, I would just [00:36:49] Speaker 00: say very briefly on the unilateral change violation, I just wanted to clarify two legal elements that the employer has repeated in their argument. [00:36:59] Speaker 00: First of all, in terms of the general counsel and the board's burden to prove a violation, the board's burden is only to show that there was a new policy implemented, which it is undisputed happened in this case. [00:37:13] Speaker 00: It's not the board's burden to show that there was a binding established past practice preventing [00:37:19] Speaker 00: unilateral action by the employer because the fundamental unilateral change doctrine is that employers have an affirmative bargaining obligation before unilaterally making changes to employees' terms and conditions of employment. [00:37:34] Speaker 00: Secondly, very quickly on the contract coverage standard, as we point out in our brief, this court's well-established contract coverage standard is that an issue is covered if the employers have already reached agreement to that issue [00:37:48] Speaker 00: and if there is a term in the contract which grants the employers the right to act unilaterally. [00:37:54] Speaker 00: And so it's not sufficient to just say that the parties generally negotiated over a subject such as discipline. [00:38:00] Speaker 00: And to the extent that the employers are arguing that in this case the union should have [00:38:04] Speaker 00: file a grievance under the watchman's agreement. [00:38:09] Speaker 00: That's a separate argument. [00:38:10] Speaker 00: That would be an argument that the board should have deferred this case to arbitration. [00:38:15] Speaker 00: The employers have essentially waived that argument on appeal. [00:38:19] Speaker 00: In addition, the board specifically addressed that at [00:38:23] Speaker 00: during Appendix Page 35 and explained why deferral was not appropriate in this case. [00:38:28] Speaker 00: The main reason being that there's no evidence that the employers would have allowed Local 26 to grieve this through Article 18 because the employer's position at the time was that this was all handled by Section 13.2 and that's why the union attempted to file an appeal under Section 13.2 which wasn't successful and did not file agreements under Article 18. [00:38:51] Speaker 00: And so that's not dispositive, and that does not go to the contract coverage issue, which requires the employer to show that there is some provision in the contract that affirmably grants them the right to act unilaterally, and the employers have simply failed to do that in this case. [00:39:06] Speaker 00: So the board would request enforcement in full, and if the court doesn't have any further questions, thank you. [00:39:17] Speaker 01: Thank you. [00:39:17] Speaker 01: Just a few points, Your Honors. [00:39:21] Speaker 01: The petitioner's position is that there's an unfettered right to discipline under the Watchman's agreement is just not accurate. [00:39:29] Speaker 01: We do raise the grievance and appeal process mentioned in 18C because it shows that there are limits to the [00:39:40] Speaker 01: petitioner's authority. [00:39:42] Speaker 01: And it's not a deferral argument to say that the board should have deferred. [00:39:46] Speaker 01: We did make that argument below and did not re-raise that argument here. [00:39:49] Speaker 01: It's a point about the contract coverage standard that this court has formulated, which depends on whether the employer and union have bargained about a subject and memorialized that bargain, creating a set of rules governing their future relations. [00:40:04] Speaker 01: That's how the court has traditionally formulated the contract coverage [00:40:07] Speaker 01: doctrine going back to the United States Postal Service, and that's the version of the doctrine that should apply here. [00:40:14] Speaker 01: I just wanted to clarify one thing I said in response to Judge Srinivasan's question. [00:40:22] Speaker 01: The language that the contract uses in 18C about the employer's existing right to discipline is language that often gets litigated in grievances about imposition of discipline. [00:40:34] Speaker 01: And it would have been in question for the arbitrator to decide whether the existing right to discipline and allowed discipline in this particular case, but of course we didn't have a grievance about what that language meant in this case. [00:40:49] Speaker 01: Secondly, the Long Beach Container Terminal didn't seek out discipline and in fact the board ignored that the [00:40:59] Speaker 01: that the watchman here, Mr. Place, had stopped working at Long Beach voluntarily at his union president's suggestion. [00:41:10] Speaker 01: he had previously been working at Long Beach as a study, contrary to what my friend on the other side said about how he would just go to Long Beach intermittently, but he stopped doing that before the hearing took place here, and we think that's another reason why Long Beach should not be held responsible. [00:41:27] Speaker 01: And then finally, just to get back to the notion that the board can [00:41:33] Speaker 01: say that the Watchman's agreement and the PCLNCA are not on equal footing. [00:41:39] Speaker 01: The board's view, inevitably, is that PMA and Long Beach were not permitted to do what the PCLNCA requires here, which is automatically comply without a discretionary step of filing a further complaint, which the parties to the PCLNCA did not want to happen because [00:41:58] Speaker 01: Such procedures are usually not confidential, the employee no longer has the power to control them, and it would undermine and eviscerate the 13.2 procedure if the marine clerk's complaint had to be re-litigated under the watchman's agreement. [00:42:13] Speaker 01: And the board says that it's not merely trying to interpret a contract or resolve a contract breach here, but it is impossible to read the decision here as doing anything other than limiting the terms to which Pacific Maritime and Long Beach agreed under the PCL and CA. [00:42:34] Speaker 01: And under a long line of cases, the courts have said that federal [00:42:37] Speaker 01: law is not supposed to regulate the substance of collective bargaining agreements. [00:42:41] Speaker 01: It's merely to provide for the procedures for reaching and enforcing them. [00:42:46] Speaker 01: And the board should not be enforcing those agreements, particularly in circumstances here where there are multiple agreements at issue. [00:42:54] Speaker 01: And finding an unfair labor practice inevitably involves finding that one of those contracts cannot be complied with fully. [00:43:04] Speaker 01: So we would ask that the court vacate the board's order and thank you.