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Case number 19-1263 et al, Wyman Gordon Pennsylvania LLC Petitioner versus National Labor Relations Board.

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Mr. Grimaldi for the petitioner, Ms.

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Sheehy for the respondent, Mr. Kilbert for the intervener.

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Mr. Grimaldi, good morning.

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Good morning.

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You may proceed.

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Thank you.

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May it please the court, I'm Roger Grimaldi for the petitioner.

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Your honors, petitioners position is that there are four basic reasons why the responding National Labor Relations Board decision should be reversed and starting with the premise and this has been consistent from the very beginning that the employees

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should have the ability to have free choice to determine whether or not they want to be recognized, or excuse me, represented by the United Steelworkers.

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Number two, the board's finding was unsupported by the substantial evidence in the record taken as a whole.

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And three, this court's own precedent

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And then number four, the board's remedy doesn't effectuate the policy of the Act, which really circles us right back to the first point I made, which is allowing the employees to have free choice.

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And it starts from our perspective with the petition to withdraw.

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The petitioner

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had objective evidence at the time of the withdrawal that the union had, in fact, lost majority support, consistent with Levitz.

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Unlike Levitz, though, there was no evidence provided by the union at the time of the petition that was contrary to the wishes of the employees and the respondent.

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And the union had not suggested that any such evidence existed.

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And the respondent argues that the petition was flawed

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consistent with Levitz, and we believe that that's not correct.

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First of all, Levitz, from our perspective, doesn't require that evidence be unambiguous, and that's the board's own decision in Diversicare Leasing Corp.

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And only that the employer shows a loss of majority supported by the preponderance of the evidence, as noted in Pacific Coast Supply.

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And here- But doesn't there have to, in fact,

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be a loss of support?

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ALJ went carefully through sort of name by name by name on there and said it just wasn't able to, it wasn't in fact reliable evidence that this document was such a kind of hodgepodge of collections and only two of the pages sort of said here's what you're signing on for when you sign it.

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To the extent those are sort of factual determinations, we owe them extraordinary.

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Definitely.

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Well, Your Honor, unlike, for example, in the Liberty Bakery Kitchen case where all the pages were blank and then were sort of filled in with some general information post-fact when they handed them the petition, this petition, the record shows, was presented to the employees in a packet.

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And yes, the first and last page

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had language, very clear, unambiguous language, and the middle page did not.

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The record shows that everyone that signed it, those that testified, and particularly those that testified that signed the page that was blank, recognized what they were signing.

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Again, the record shows that it was presented in a packet.

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That same packet.

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That's not what the ALJ found, because in fact, according to the ALJ, they were

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two different people collecting signatures, it looked like on even the same days, maybe it was October 19th, if I've got my dates right, so that it couldn't possibly have been presented as a packet.

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Somebody was just presenting those middle sheets.

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No, actually, Your Honor, with all due respect to the ALJ, that was incorrect because what had happened- The ALJ's fact-finding was incorrect?

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Is that what you're saying?

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Yes, in this case.

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Okay.

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You know what your standard of review is for us to disagree with a fact finding that the board did not disagree with?

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We do, and we understand that it's heavy, Your Honor.

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What had happened was the original petitioner, the original employee, unfortunately had cancer.

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He handed the packet to another individual to complete

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the signatures, but it was handed in a packet and then given to the employer by the employees council, not even a group of employees, but the employees had separate council.

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He presented the packet along with a letter demanding withdrawal.

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And that is the basis for the employers reasoning that it in fact, that the union had lost majority support.

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Exactly Mr. Grimaldi, but that's, I think that's the difficulty that the board found.

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The board didn't go into the chapter and verse that the ALJ did because the board, as you just acknowledged, the board said what the employer had before it when it made the decertification decision was or the non-recognition decision was the petition.

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And if it had also had before it information from the employees who circulated it saying, you know, we always showed them the front page and we always talk to them, you know, that would present a different case.

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But the board has held that the kind of after the fact evidence that wasn't before the employer at the time it made the decision is not something the board will consider.

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And I understand that from the perspective of the testimony, Your Honor.

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The employer had what was presented to it, as I said, the packet, which was clear, and accepted it as a packet because it came from counsel, as I said, with a letter.

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I think the other important fact to note here, and this actually goes to the remedy,

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that even if this court finds that the employer didn't have evidence that, in fact, the union had lost the majority support, the petition itself and the fact that it was provided by counsel along with a letter provided enough evidence that the petitioner had at least a good faith reasonable uncertainty that the union had lost majority support.

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And so this goes to the remedy that- Why didn't the employer then ask for an election?

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You want to do it backwards through the remedy, but the proper step for the employer at that point would have been for Wyman Gordon itself to call for an election.

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And now you want to say that something in the law requires the board to make up for that.

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Your Honor, the employer made the decision, again, frankly, based on the demand by the Employees Council that it withdraw recognition or face a ULP at the time.

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And so it made its decision based on the petition and that information in the letter, which is why it didn't ask at that point for a petition for a very big sophisticated company with very good attorneys.

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And so I don't think it's going to fold as soon as someone says you better do this or that you'll have an unfair labor practice records pretty clear that they know how to stand up for what they believe is their rights in the process.

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And so

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I'm just not sure why if they thought, well, this petition is a little bit of a mess.

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It's not repeated, the language about what they're signing isn't on every page and names are all over the place.

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Why wouldn't the company have just asked for the election?

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Well, again, I believe the company's position was that really the names weren't all over the place.

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I mean, they were in order.

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It's just that there was a page that had a significant number of names on it that at the top of the page did not have the information in the packet that was on the first and last page.

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And the company at that time made a decision based on the information that it had in front of it.

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The only thing I might add before I withhold the rest of my time for rebuttal is with regard to the remedy and the good faith, we don't believe that there was a hallmark violation of the act because there was a reasonable belief.

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The board's remedy here is more punitive than remedial and would be an extreme remedy in this case.

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Giving the employees an opportunity for choice is the fair remedy.

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And I'll withhold the rest of my time now from you.

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I'd like, I'm sure, I hope Judge Henderson will give you some additional time because I had a few more questions.

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One is just what is the status?

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What has been happening since the employer withdrew recognition and the current time?

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A lot of time has elapsed.

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continue to represent the individuals?

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Have you continued to work with them or has it been completely cut off?

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Has the employer perpetuated the, continued, not perpetuated, continued in the non-recognition in the interim?

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The employer has continued in the non-recognition in the interim, depending the outcome of the case.

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And the employer and the employees have moved along fine in the interim.

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Okay.

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And then,

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You haven't talked about it here this morning, but in your brief about this August 1 wage increase issue and the fact that Wyman Gordon did it retroactive.

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I think was it from December to August 1st?

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Did that include interest?

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I don't believe so, Your Honor.

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I don't know for sure, but I would hazard a guess if I don't like guessing, but I would say it probably did not.

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Okay.

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Would the board's remedy require interest to make them whole or is that just something that doesn't get addressed in this context?

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I don't believe it was addressed.

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And I would add that the parties were negotiating wages as early as May.

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Okay.

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Thank you.

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Thank you.

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All right.

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Thank you, Ms.

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Sheehy.

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Good morning, Your Honors.

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Barb Shehe for the National Labor Relations Board.

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I don't have a lot to add beyond what's in our brief, but I'll just highlight a couple of points that I want to emphasize.

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The first one is Judge Pilar recognized there was a lot of discussion about this different employees who testified and the two signature collectors.

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But the board, while the ALJ is heavy on that analysis and his decision, the board doesn't rely on that for the very simple matter or simple principle, rather.

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that after acquired evidence doesn't matter.

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What matters for purposes of rupturing the bargaining relationship, what matters is what did the employer have before it at the time that it was due recognition.

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So what did it have?

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It had a petition with the intent on the top of two pages and then three pages that just had lines and signatures.

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So what the collectors said later, the signature collectors, or what the employees said later about what was in their packet is irrelevant for purposes of the board's decision here.

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They specifically say the after-required evidence induced at hearing is not relevant to the finding of the unlawful withdrawal of recognition.

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I just wanted to point that out.

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Secondly, Judge Millett, I think you were getting at this, and this is the one point I wanted to make about the election on the remedy issue.

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We are four years now after the fact of the unlawful withdrawal of recognition.

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So for four years, they have continued to refuse to recognize the union.

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So at this point,

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that the board traditionally is not going to say that that is actually going to be representative of employee choice at the time that there was actually a relationship.

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We are four years after the fact where the union hasn't been able to realize the will of the employees when they voted the union in in 2014.

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And the only other thing I wanted to, oh, I think I can answer about the interest.

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I don't think the record, this is about the back pay related to the August 1 wage increase.

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I don't think the record does reflect.

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I think opposing counsel, Attorney Grimaldi is correct.

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I don't think the record shows that they pay the interest.

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And I believe that's something that will be worked out in compliance, whether a violation like that

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requires the payment of interest.

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But I don't think the record does reflect that.

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And that's certainly something that the regional office would sort out in that.

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If Wyman Gordon on that August 1st, was it 2016?

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Do I have my ears right?

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2016 had paid, say, the same wage increase it had done the year before, or had stayed within that average range of increases.

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Would that have been okay, even if it hadn't negotiated, if it just, we're in the middle of bargaining here and I'm just going to maintain the status quo.

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Would that have been okay?

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We have it.

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It's an unusual violation, I'll admit, stone container and TXU electric.

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I'm sorry, did you just say yes, that would have been okay, there would have been no violation?

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There would not have been a violation under stone container and TXU electric.

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What the violation is, so what we had here was a- There would have been a violation under something else or would that have been okay, permissible?

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No, I think it would have been OK because of the unique circumstances of what was happening.

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Stone Peter carves out this exception that says if it's a discrete occurring event and you're in the context of first bargaining, there are certain privileges as the employer that you have.

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And one of those is you have to notice an offer to bargain, but you don't have to bargain to impasse.

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So I think, yes, so long as Wyman Gordon had done something by August 1, there would not be a violation.

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Well, something would have had to be at least arguably maintaining the status quo.

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Or offered a bargain, noticed the union that it intended to do something.

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And so that's the key.

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That's what did not happen here.

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Well, if I understand their argument, and I'm sure Mr. Grimaldi will correct me if I don't, their argument is, look, we did it.

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No one's disputed it.

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We did it retroactive to August 1.

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And so for all practical intents and purposes,

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We paid on October 1st.

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We paid on August 1st with this retroactive payment.

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So it's as if we had just maintained the status quo.

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So at least that's how I understand it.

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It seems like some of the arguments in the briefs are going past each other on this issue.

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That's how I think they understand

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what happened, and then your argument is, well, you needed to bargain beforehand, but they say, look, for all intents and purposes, we paid August 1, and you just said, it's fine.

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As long as they paid August 1, we wouldn't be here.

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So how do I reconcile that?

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So here's the problem.

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They bypassed the union, even if, at the end of the day, they had involved the union.

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The union couldn't have taken the issue to impasse.

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And the employer, at the end of the day, would have been entitled to impose, in this one instance, like I said, the discreet, occurring event, to impose the pay increase that it saw fit.

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I thought you said that even if they hadn't notified or bargained, if they just paid,

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maintain the status quo, they wouldn't have had to also bargain in advance.

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So did I misunderstand?

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That was my first question.

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Did I misunderstand your answer?

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I think they have to notify the union of what they intend to do.

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So they have to notify saying, I'm sorry if I misspoke there.

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Issue here that the employer neither notified we're going to do the same, you know, we're going to do X increase.

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At notify as of August 1 instead they went along the employees with the new union.

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got no increase, whereas they had been getting increases before.

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And only after the employer denies recognition, then it says, oh, and now we're going to give you an increase retroactive to August 1.

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So from the perspective of employees looking at what has my union done for me,

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they painted a picture that is very harmful of the union's ability.

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So all I'm saying is, isn't that why it matters that whether the employer committed as of August 1 rather than just actually did something retroactive?

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Or am I?

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I don't think that's an unfair reading of the fact.

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I mean, that's certainly the timeline that played out, right?

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But fundamentally, yes, they excluded the union from the picture.

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But even if they hadn't withdrawn recognition, it still would be the violation.

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Certainly, that makes it look worse that the increase came after the union was no longer being recognized.

[00:17:15] Speaker 05:
Well, I think that's one thing that was curious to me, because that's almost what I would have expected to see in either the board or the ALJ decision was this

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was the very image you and Judge Pillard were just talking about that now that we've withdrawn, see what happens when the unions, I would have expected that front.

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It's like, look at that.

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A union comes in, you don't get your regular August 1 increase, and as soon as they're gone, you get it.

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But I didn't actually find that in the board decision.

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Did I miss it?

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Or in the ALJ decision?

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Well, it's not the ALJ decision.

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And that could be how the general counsel ended up litigating the case and whether they

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decided to make that argument, I'm not sure.

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But certainly, there's nothing in the ALJ decision.

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But there's an explanation for why it's not in the board decision.

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The board finds that the employer, in this case, doesn't challenge this violation.

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So the board isn't going to say anything about it.

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If you don't tell the board, we have a problem with your finding, you're not going to see the board say anything other than, we're going to enforce that decision.

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So that's why.

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That's why I was talking about, I think, at least as I read their exception too,

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They're raising the same argument.

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It's just that they have a different conceptualization of it than perhaps you and the board or the general counsel did.

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They've got this sort of retroactive, so nothing happened to maintain the status quo view.

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And so it seemed to me that they had raised it.

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Now, you've given an answer to me, but it's not the answer.

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They had to negotiate in advance.

[00:18:47] Speaker 05:
That's the answer.

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That's very different from the, this was all meant to, this was all a game to undermine the union by union come in, no increase, and then union goes away, increase happens retroactively.

[00:18:59] Speaker 05:
We just can't, that's not in the record here.

[00:19:01] Speaker 05:
That's not, no one's found that.

[00:19:03] Speaker 04:
No, no one has found that, but that's not a necessary finding to what the alleged violation, what the found violation is.

[00:19:09] Speaker 04:
The found violation isn't some sort of

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sort of that that strikes the way that we're describing this strikes more as like a coercive or a threat or implied threat.

[00:19:18] Speaker 04:
That's not that's not what this whether that could Just, just backing up.

[00:19:23] Speaker 03:
I mean, when I look at this on the briefing, I think a this objection to the

[00:19:34] Speaker 03:
the board's finding of a failure to grant the annually recurring wage increase by August 1st, A, it was forfeit, and B, the employer acknowledged that it didn't start negotiating until August 12th and thereafter.

[00:19:51] Speaker 03:
So do we need to go any further than either it just wasn't preserved, it was forfeit, or even on the merits reaching the question

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the employer has acknowledged no notice until August 12th, done.

[00:20:07] Speaker 04:
I absolutely agree with you.

[00:20:08] Speaker 04:
And I think that's how we try to present it in the brief.

[00:20:10] Speaker 04:
And the one thing I will add, though, that I don't think I've touched on is that, yes, we have the employer saying we paid retroactive January 1.

[00:20:20] Speaker 04:
Part of the issue, though, is for purposes of compliance and the back pay award, part of this, is to ensure that, in fact, all the employees did receive it.

[00:20:28] Speaker 04:
And if you, for instance, left roles or left the employee between, say, August 1 and the January 1 retroactive, you would still be entitled to that.

[00:20:37] Speaker 04:
I think to work out in the compliance proceeding.

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So I think it's unfair to say there was no harm, no foul.

[00:20:45] Speaker 04:
I think it's up to the board first to make sure, OK, there was no harm, no foul in terms of the money.

[00:20:50] Speaker 04:
But let's make sure the interest was paid if that's appropriate.

[00:20:54] Speaker 04:
And on top of that, all of this also ignores the very fact that the board, even under voluntary compliance cases, the board is still entitled to judicial enforcement of its decision.

[00:21:04] Speaker 04:
And at the very least, there should be the posting that if there is full compliance otherwise, the employer would still be obligated to post a notice to let the employees know we broke the law and we won't do it again.

[00:21:15] Speaker 04:
So I think that that's getting lost in the shuffle here, that there is still a component of the remedy that is tied to this violation, even if there's no more money on the table for any of the employees.

[00:21:25] Speaker 05:
Can I ask you one more question?

[00:21:27] Speaker 05:
And that is on the affirmative bargaining order.

[00:21:30] Speaker 05:
My understanding is that it just says that there can be no decertification process

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for a reasonable period of time.

[00:21:39] Speaker 05:
Based on board case law, what is the general range for that reasonable period of time, and how does an employer know when it's up?

[00:21:50] Speaker 04:
So your honor is correct.

[00:21:52] Speaker 04:
The order for the affirmative bargaining order says that it's in place for a reasonable period of time.

[00:21:57] Speaker 04:
And I don't know that the board has any sort of bright line

[00:22:01] Speaker 04:
date certain.

[00:22:03] Speaker 04:
I think it's all very fact specific, just like the bargaining order itself is very fact specific.

[00:22:08] Speaker 04:
It depends very much on the specific parties and the specific violations in the case.

[00:22:14] Speaker 04:
So it's going to be up to the board to determine if there is, for instance, another if the employees present a petition or if the employer, if the board, I'm sorry, if the court enforces the judgment and the parties return to the bargaining table, it would be if

[00:22:28] Speaker 04:
Let's not assume that anything could go wrong.

[00:22:30] Speaker 04:
Maybe things will go great, and there won't be any more decertification.

[00:22:32] Speaker 04:
We'll get a first contract.

[00:22:33] Speaker 04:
But if that's not the way things play out, then I'm sorry.

[00:22:36] Speaker 04:
I don't think I have a more specific answer on the time frame.

[00:22:39] Speaker 05:
Well, imagine that the order's enforced, and they go back.

[00:22:51] Speaker 05:
A year goes by and then a new petition shows up and it's got the words on every single page and it has the requisite number of signatures.

[00:23:03] Speaker 05:
How does the employer know if they can either withdraw at that point and say it's a year and a day.

[00:23:12] Speaker 05:
or ask for an election.

[00:23:15] Speaker 05:
Can they do it?

[00:23:16] Speaker 05:
Or will the board then say you've committed a violation by asking a year and a day because we don't think that's a reasonable period of time, even though we never told you what the reasonable period of time is.

[00:23:27] Speaker 04:
How does that work out?

[00:23:30] Speaker 04:
So it definitely has to be the board to determine whether this was reasonable.

[00:23:34] Speaker 04:
And I would say the case law would, I hate, I can't speak for the board.

[00:23:37] Speaker 04:
Toronto knows that I can't sort of find how the board would find in the future.

[00:23:42] Speaker 04:
Given that a certification bar for a brand new union is only a year, I would say that the employer could look to those lines of cases to determine whether, in this instance, if it continues to recognize the union and bargaining faith towards a first contract for the same amount of time that generally is permissible under a certification, a run of the mill certification, that the employer could certainly look to that

[00:24:12] Speaker 04:
to determine whether its actions were reasonable.

[00:24:14] Speaker 05:
Now, an unfair labor practice, let's say they do it at the 11th month.

[00:24:19] Speaker 05:
So I saw some cases that treated this reasonable period of time as six months.

[00:24:22] Speaker 05:
And that's why it was confusing to me.

[00:24:23] Speaker 05:
So say it's the 11th month, so they can't rely on the one year, the original rule for a union.

[00:24:33] Speaker 05:
All I want to know is if they came with this, and who knows if they would even get one, but if they had this perfectly package,

[00:24:41] Speaker 05:
model petition for decertification at the 11th month.

[00:24:48] Speaker 05:
And they go, now I've got no choice.

[00:24:50] Speaker 05:
I have to withdraw.

[00:24:51] Speaker 05:
And let's assume there's no question about that evidence.

[00:24:55] Speaker 05:
Would it still be an unfair labor practice to do that because the board could later say that wasn't a reasonable period of time?

[00:25:05] Speaker 05:
Or would the board just go, no, sorry.

[00:25:09] Speaker 05:
How would that work?

[00:25:10] Speaker 05:
Because the reasonable period of time is so vague for the employer.

[00:25:14] Speaker 04:
I know.

[00:25:14] Speaker 04:
And unfortunately, I don't think I can say that no matter what happens, any period of time, because if the board wanted to give a specific period of time, 11 months, six months, it would have done so.

[00:25:25] Speaker 04:
So even if, for instance, the employer, as Your Honor paints, comes forward with this picture perfect petition, has signatures and intent on all the pages, couldn't be clearer, there would still be a question.

[00:25:35] Speaker 04:
about was there any activity that happened?

[00:25:39] Speaker 04:
Were there any additional unfair labor practices?

[00:25:41] Speaker 04:
Did the employer engage in bad trade bargaining?

[00:25:44] Speaker 04:
Did the employer do other things that affected the relationship so that that petition is either tainted or?

[00:25:51] Speaker 05:
I get there could be lots of arguments about that.

[00:25:53] Speaker 05:
I'm just trying to ask you how the employer is supposed to navigate this.

[00:25:55] Speaker 05:
That's all I really want to know.

[00:25:57] Speaker 05:
I know.

[00:25:57] Speaker 05:
And the best I can- If you're advising an employer, and let's assume this has been the ideal employer so that you don't have any of those externalities,

[00:26:05] Speaker 05:
and you've got the perfect petition and it's month 11.

[00:26:09] Speaker 05:
What would you, or can the employer ask the board?

[00:26:12] Speaker 05:
What are they supposed to do?

[00:26:14] Speaker 05:
What would you tell the employer to do?

[00:26:16] Speaker 04:
I know, and I feel like I understand that I'm getting a very unsatisfactory answer, but I think the best that I can say is that I would advise the employer, listen, the board had before to finding from the administrative law judge of a state certain, it said six months, the board changed that and said a reasonable period of time.

[00:26:34] Speaker 04:
So I think I would have to advise, if they were my client, I'd have to advise the employer, listen, we don't have a time certain.

[00:26:41] Speaker 04:
The board has decided that the best thing here is to let the parties bargain for a reasonable period of time.

[00:26:48] Speaker 04:
We know that they didn't put a time on it.

[00:26:50] Speaker 04:
So I advise you to bargain in good faith, the best you can, try to reach an agreement.

[00:26:56] Speaker 04:
And if that fails after a certain period of time, let's talk about what happened.

[00:27:01] Speaker 04:
Let's talk about whether the passage of time has been reasonable.

[00:27:04] Speaker 04:
And then let's see whether it makes sense to act on a petition or to ask for an election.

[00:27:11] Speaker 04:
I get that I'm not being, I can't give you a more satisfactory answer.

[00:27:15] Speaker 04:
I apologize.

[00:27:16] Speaker 05:
Thanks.

[00:27:16] Speaker 05:
I appreciate the effort.

[00:27:18] Speaker 04:
All right.

[00:27:19] Speaker 02:
Thank you, Mr. Kilbert.

[00:27:24] Speaker 00:
Your honor, I'm Nathan Kilbert on behalf of Intervenery United Steelworkers Union.

[00:27:30] Speaker 00:
If I might, I'd like to take a crack at a rather unorthodox role for me in giving advice to an ideal employer faced with a situation like the one your honor described.

[00:27:46] Speaker 00:
It's, in my understanding, it's never an unfair labor practice for an employer to file an RM petition.

[00:27:53] Speaker 00:
So an employer

[00:27:54] Speaker 00:
faced with this situation would not withdraw recognition at its peril, as this court has observed in Flying Food Group, but instead go to the region within our impetition.

[00:28:09] Speaker 05:
Is that true that if you have an order that says

[00:28:14] Speaker 05:
This surprises me.

[00:28:15] Speaker 05:
If you have an order that says no decertification efforts for a reasonable period of time, it would not be an unfair labor practice for this hypothetical company at month two?

[00:28:28] Speaker 00:
I think at month two,

[00:28:32] Speaker 00:
Look, I've never seen a case in which a mere filing of an RM petition is a ULP.

[00:28:38] Speaker 00:
I am not sure that the order.

[00:28:43] Speaker 05:
You haven't seen one where they've done one when they're under a reasonable period of time obligation.

[00:28:48] Speaker 05:
That's why I was surprised at your statement that would never be an unfair labor practice.

[00:28:53] Speaker 00:
I've never seen a case in which there is an unfair labor practice finding for filing an RM petition and doing nothing else.

[00:29:01] Speaker 00:
And I think that the order here does not say no.

[00:29:04] Speaker 05:
Are you telling me the union would not consider it an unfair labor practice if they did it in month two?

[00:29:09] Speaker 00:
If they filed an RM petition, I'm not going to bind my client to some hypothetical situation, but I

[00:29:16] Speaker 00:
Would not advise my client that that would necessarily be a slam dunk ULP.

[00:29:21] Speaker 05:
Okay, so then you just don't.

[00:29:24] Speaker 05:
So your, your statement to me that it would never be an unfair labor practices just not accurate.

[00:29:28] Speaker 05:
You're saying now I've never seen one and you know Your honor, I apologize for being overly categorical.

[00:29:36] Speaker 00:
Um, but I think that the the best advice to an ideal employer here would be to file an RM petition if

[00:29:45] Speaker 00:
And I do think that it's worth clarifying that during an RN petition, recognition continues.

[00:29:53] Speaker 00:
So the employer would not withdraw recognition during the pendency of an RN petition.

[00:29:57] Speaker 00:
And so they would not be in violation of the order here, which I think just requires them to continue to recognize and on request bargain with the union.

[00:30:06] Speaker 00:
So they would still be in compliance with that order.

[00:30:10] Speaker 05:
The possible violation of an unfair labor practice from employees?

[00:30:16] Speaker 05:
or not?

[00:30:17] Speaker 05:
I'm trying to figure out.

[00:30:20] Speaker 00:
I think that the board in Levitz and more recently in Johnson Controls has continued to say that it's not an 8A2 for unlawful support for a non-majority union for an employer to seek RM, a clarification election here when there is

[00:30:45] Speaker 00:
a petition that shows that there is not what might appear to be majority support for a union.

[00:30:54] Speaker 00:
So the idea that they are compelled to withdraw recognition when faced with a petition, a perfect petition, I don't think is necessarily accurate.

[00:31:07] Speaker 00:
You can always file for an RFP.

[00:31:11] Speaker 00:
And I see that I'm out of time, so if your honors have

[00:31:14] Speaker 00:
No further questions.

[00:31:15] Speaker 02:
Any more questions?

[00:31:17] Speaker 02:
No.

[00:31:18] Speaker 02:
All right.

[00:31:19] Speaker 02:
Judge Pillard?

[00:31:22] Speaker 02:
OK.

[00:31:23] Speaker 02:
All right.

[00:31:23] Speaker 02:
Then Mr. Grimaldi, why don't you take two minutes?

[00:31:37] Speaker 05:
He's not unmuted.

[00:31:43] Speaker 02:
Anne, can you do something?

[00:31:45] Speaker 02:
Can I unmute him?

[00:31:46] Speaker 01:
Judge, I have just sent Mr. Grimaldi a request to unmute.

[00:31:58] Speaker 06:
I'm sorry, I was unable to unmute.

[00:32:00] Speaker 06:
There you are.

[00:32:01] Speaker 06:
There you are.

[00:32:02] Speaker 06:
Finally, I pressed Alt-A and here we are.

[00:32:05] Speaker 06:
Go ahead.

[00:32:06] Speaker 06:
I'll just address a couple of quick points.

[00:32:09] Speaker 06:
The previous discussion, in my opinion,

[00:32:12] Speaker 06:
is all the more reason why, from a remedial standpoint, we need a SCOMUS remedy here.

[00:32:17] Speaker 06:
The GC is unable to determine what's a reasonable time.

[00:32:21] Speaker 06:
There's discussion back and forth about whether an RM petition or a unilateral withdrawal after a, quote, reasonable time is the right approach.

[00:32:30] Speaker 06:
And so I believe that that's all the more reason why a SCOMUS remedy is appropriate in this case.

[00:32:36] Speaker 06:
Over the past number of years, there's been turnover.

[00:32:39] Speaker 06:
It's time to give these employees a fair chance at this point to make a decision.

[00:32:44] Speaker 06:
That's with regard to the remedy.

[00:32:46] Speaker 06:
Just one quick, brief point about the wage increase.

[00:32:51] Speaker 05:
The problem, I mean, the problem with your scum that's around A1 is you're nothing, you're not similarly situated to the employer in the scum's case at all, where, in fact, the union unbeknownst to the employer had sort of

[00:33:06] Speaker 05:
re-obtained majority status.

[00:33:09] Speaker 05:
And so that poor employer had no idea at all.

[00:33:12] Speaker 05:
And before that, the union had been completely inactive for quite some time.

[00:33:17] Speaker 05:
So there's nothing like what's going on here.

[00:33:19] Speaker 05:
And so it's not a question of whether you're not entitled on the terms of SCOMAS to not have an affirmative bargaining order.

[00:33:31] Speaker 05:
The question was, if you wanted to do an election, you could have done that.

[00:33:36] Speaker 05:
when you got that first petition, assuming if you'd had some basis.

[00:33:40] Speaker 05:
Well, assuming if you'd have to figure out if you thought you had basis for 30%, you'd have to probably have done some more inquiry.

[00:33:45] Speaker 05:
I'm not sure you could have even done that on that petition.

[00:33:48] Speaker 05:
So the question is, if the employees want something, they know how to do it.

[00:33:54] Speaker 05:
But I don't know why the employer gets rewarded for not having done what it should have done in the first place.

[00:34:02] Speaker 06:
We don't look at it as rewarding the employer, but giving the employees a choice.

[00:34:06] Speaker 05:
The employees made a choice, though.

[00:34:07] Speaker 05:
And the point here is that the company didn't respect that choice.

[00:34:11] Speaker 06:
Well, it did.

[00:34:12] Speaker 06:
And it certainly did from the very beginning.

[00:34:15] Speaker 06:
And actually, even with regard to the wage increase, I want to make sure we're clear.

[00:34:19] Speaker 06:
This wasn't a situation where the union got certified when companies stopped giving wage increases.

[00:34:23] Speaker 06:
They had given a wage increase the year before, after the union was certified.

[00:34:27] Speaker 06:
I just wanted to make sure we were clear on that.

[00:34:30] Speaker 06:
But they did respect the choice and then bargained.

[00:34:34] Speaker 05:
And eventually, as we've already discussed, received the petition, which was- You hadn't started bargaining at the time of that first, after post certification, that first wage increase, you hadn't started bargaining yet with the union, correct?

[00:34:51] Speaker 06:
That's correct.

[00:34:52] Speaker 05:
What date was the union certified?

[00:34:56] Speaker 06:
It would have been April, I believe, of either

[00:35:00] Speaker 06:
14 or 15 okay i believe 14 but that there were wage increases that were given after they were certified so it wasn't a situation where they were but not after negotiations mind the union in any way shape or form right but you hadn't started negotiating with the union that's correct that's correct all right um your case is submitted