[00:00:00] Speaker 01:
Case number 20-1044, Communications Workers of America AFL-CIO Petitioner versus National Labor Relations Board.

[00:00:09] Speaker 01:
Ms.

[00:00:09] Speaker 01:
Pittman for the petitioner, Ms.

[00:00:11] Speaker 01:
Delauro for the respondents.

[00:00:13] Speaker 03:
Good morning, counsel.

[00:00:14] Speaker 05:
Good morning.

[00:00:16] Speaker 05:
Good morning, your honor.

[00:00:19] Speaker 05:
You may proceed.

[00:00:21] Speaker 05:
Thank you so much.

[00:00:22] Speaker 05:
May it please the court.

[00:00:24] Speaker 05:
The main issue in this case is whether T-Voice is a labor organization within the meaning of Section 2.5 of the National Labor Relations Act.

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If so, then because of T-Mobile's admitted domination of T-Voice, it is an unlawful Section 882 company union that Congress prohibited so that employees could effectuate their statutory right to freely choose an independent representative.

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An organization of any type is a labor organization if employees participate in it.

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Its purpose in part is to deal with the employer and those dealings concern working conditions.

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The only question we have here is whether T-Voice dealt with T-Mobile, which is the second criterion.

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T-Voice is an organization with its own charter.

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designed by T-Mobile sometime before January 2015 as a vehicle for communications between employees and management.

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It's comprised of management and of employee representatives whom T-Mobile trains and appoints for lengthy terms.

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T-Mobile assigns the employee representatives the tasks of first soliciting and gathering coworkers complaints about working conditions in person

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and in writing.

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Second, representing coworkers in leadership meetings while presenting to and discussing those complaints with management with the aim of improving employee working conditions.

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And three, after management's consideration, reporting management's decisions about the complaints as well as proposals back to their coworkers.

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My understanding is that most of what

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is happening in these in this arrangement has to do with not with wages hours and benefits.

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It has to do with the customer relations aspects of the job and employees who are in that field are voicing their concerns about what's going on.

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Two or 3% may go to benefits, but not the thing you typically have in collective bargaining.

[00:02:46] Speaker 05:
Well,

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As a matter of the record, the facts in the record, the employee concerns that were presented were very significant to the employees, concern compensation, paid time off, various leave issues.

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But in addition to that, the board itself- No, no, no, I think you're missing the thrust of my question.

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Thrust of my question is, as I understand the record,

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by a wide margin, most of what was being discussed did not concern wages and hours, conditions of employment.

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They concerned the work aspect, the customer relations work aspect of the job.

[00:03:32] Speaker 05:
It is the case that T-Boys dealt with customer issues, but it also dealt with employees.

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No, no.

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Am I wrong in understanding that that was the wide, by a wide,

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percentage.

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That's most of what was being discussed.

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The union believes that that is not accurate.

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There were hundreds of, literally hundreds of complaints about working conditions that were presented through T-Voice.

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So it is the case that there were a larger number.

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But more importantly, the issue of whether these were employee or non-employee matters is not really before the court.

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The board passed on that in footnote 21.

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The board said that it was not going to decide whether the organization dealt with working conditions.

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It simply assumed that it did.

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So if the issue,

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that you think it needs to be decided is whether it was working conditions, then it needs to go back to the board because the board did not decide that.

[00:04:47] Speaker 03:
If I might ask you, don't you, I think in your brief, you make the statutory argument as well, don't you?

[00:04:54] Speaker 05:
Yes, the statutory argument is that an organization does not need to wholly deal with employee matters.

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It simply needs to be part of the organization.

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So if Judge Edwards' assumption about the record were correct, that only a minuscule number of issues with which T-Voice dealt

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involved wages and working conditions.

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Would that make a difference to your argument?

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And if not, then what is your best precedent for that?

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I don't believe that it would make a difference.

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And I would say that the best precedent, well, there's quite a number of cases, in fact.

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I would say Dillon, UPMC, Reno, Yukon Manufacturing, all of those concerned situations in which there were issues other than employee issues.

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And also, I'm sorry.

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No, proceed.

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Well, and also concerned individual employees presenting problems through a construct of an organization on behalf of their coworkers.

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Well, what I'm trying to understand in this case is,

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After Congress passed the statute and we can look to the legislative history in terms of what type of activity by the employer it was, Congress was concerned with at that time.

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Is this the type of

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activity, assuming Judge Edwards is correct on the record, that Congress intended to capture.

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In other words, as I see the board precedent, it acknowledges that the suggestion box certainly is permissible.

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And even a sophisticated suggestion box procedure is permissible.

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And I gather what the union is arguing and what the board's precedent has suggested is that in passing the statute, Congress contemplated that certain types of activities were

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precisely the type of activities that would interfere with organization rights.

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That is the employee's right to have an independent representative.

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Can you flesh that out a little bit?

[00:08:30] Speaker 05:
Well, yes.

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The legislative record as described in Cabot-Carbon and in Electromation is that collective bargaining was not the definition for what dealing is.

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Dealing with is as simple as employees in some kind of organization making proposals,

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management considering them and those concerning those proposals or grievances concerning working conditions.

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And the organization only has to be partly doing that.

[00:09:12] Speaker 00:
I'm sorry.

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I didn't mean to interrupt you.

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One of the board cases with that.

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In fact, all the board cases seem to talk about circumstances where management members of the committee discuss proposals with employee members.

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and have the power to reject any proposal.

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That's what dealing is.

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That's not the situation here.

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You have individual employees submitting their concerns about, we won't debate what the concerns are over.

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And the representatives simply pass this on.

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There's no dealing between, and the employees are not working as a group.

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They're submitting whatever they have to submit.

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And then,

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those matters and then passed on to management.

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No judgment being made as a union representative might make, they're simply passed on.

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Am I wrong?

[00:10:02] Speaker 05:
I do believe that the record indicates otherwise, Your Honor.

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T-Voice as a whole was not a suggestion box.

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These T-Voice representatives, they were called representatives, and they were not automatons.

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They were meeting with employees in person to gather those employee suggestions and complaints.

[00:10:26] Speaker 00:
But there was no group consensus reached in those meetings, right?

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And it is not necessary.

[00:10:34] Speaker 00:
We don't know that I'm just trying to understand because it's certainly far removed from what you'd normally expect in dealing with or in collective bargaining or where you have union representatives.

[00:10:45] Speaker 00:
That's not normally how it operates.

[00:10:47] Speaker 00:
It sounds more like a suggestion, but where

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the representatives are representatives, but they simply receive information coming from employees and they pass it on.

[00:10:59] Speaker 05:
They set meetings.

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I'm so sorry.

[00:11:02] Speaker 00:
No, no, go ahead.

[00:11:03] Speaker 00:
I'm sorry.

[00:11:03] Speaker 00:
Go ahead.

[00:11:04] Speaker 05:
They sat in multiple meetings every month with management and discussed the pain points that employees presented.

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And these included issues related to employee compensation, scheduling, leaves, the tools that they used.

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These were actively discussed.

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They met at the national level.

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the regional level and the local level.

[00:11:30] Speaker 00:
Those representatives had no authority to cut a deal with whomever they're meeting with, right?

[00:11:36] Speaker 05:
Cutting a deal is not required for dealing with.

[00:11:38] Speaker 00:
I'm just asking for an understanding, asking to understand the record.

[00:11:42] Speaker 00:
They had no authority to cut a deal, right?

[00:11:48] Speaker 05:
The record is silent on that issue.

[00:11:52] Speaker 00:
The record does not, let me put it this way, because I don't want to waste time on stuff that's pretty clear.

[00:11:58] Speaker 00:
There's nothing to indicate that the management, the folks who collected the information had the authority to cut a deal on behalf of the company.

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They simply collected information and passed it on to management representatives.

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The employees thereafter did not in any way deal with, bargain with, discuss with those who could make the final decision on what was coming to them, right?

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In other words, there were representatives who collected information and then passed it on to management people who would then go through and decide what to do with it.

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Isn't that what was going on?

[00:12:33] Speaker 05:
In part.

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But if you look at the notes of some of the meetings after they occurred, you will see that in those meetings, the managing representatives agreed to

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suggestions that were being presented by the T-Voice representatives.

[00:12:52] Speaker 00:
What do you mean agreed to?

[00:12:54] Speaker 05:
Well, for example, in one national meeting, there was on the table a discussion about whether or not employee training on a particular issue was adequate.

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The T-Voice representative said, no, this employee training is not adequate.

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The language needs to be changed here and there.

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And management said, OK.

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we will change this language.

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That is simply one example.

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Now it is the case that in many instances, the management people sitting in the meetings did go back and consult with other management people before responding, but that too constitutes dealing because all you really need is management consideration.

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of an employee suggestion or grievance?

[00:13:53] Speaker 00:
No, I agree.

[00:13:54] Speaker 00:
If you had a situation where the arrangement was that groups of managers and groups of employees would routinely get together and employees would make proposals and the manager sitting there had the authority to cut deals, yeah, then you're talking about what the act intends to cover.

[00:14:13] Speaker 00:
That isn't my understanding of what was going on.

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And the other thing I wanted to ask you about, the board has owed a lot of deference here.

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They're reading the record and making a determination.

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Where did they go wrong?

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It isn't whether we might reach a different judgment, is where did they go wrong and what precedent are they flying against?

[00:14:34] Speaker 05:
Well, they went wrong in a number of ways, but a very major one is this notion that there has to be group action on the part of the employee

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members of the organization.

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There is no such requirement.

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In fact, as recently as 2018 in UPMC, the board found dealing with where individual employees made proposals on behalf of their coworkers through the organization construct, which management considered.

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and the board found dealing with.

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So there is no requirement.

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Let me make sure I understand.

[00:15:17] Speaker 00:
They made proposals.

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So they came to an understanding as an employee group as to what to submit to the company.

[00:15:26] Speaker 00:
And then those employees who represented the rest of the employees advance those proposals to the company, right?

[00:15:33] Speaker 00:
That's what you're saying.

[00:15:34] Speaker 05:
I'm not saying that.

[00:15:35] Speaker 00:
Oh, I thought you said that was I thought you said that was the case you were just referring to, which I agree.

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is a much more suspect case, but that's not what's going on here.

[00:15:46] Speaker 05:
Well, the thing that I disagree with is the notion that employee members of the organization have to confer with each other and greet.

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You know, a union steward doesn't do that when they go to a manager and say, look, this employee is having

[00:16:01] Speaker 05:
this problem in this complaint.

[00:16:04] Speaker 05:
There is no requirement.

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The board does not discuss, it does not get into in nearly all of the cases that the union relies on what communication is going on between the employee members.

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The focus instead is on what is the communication between employees and management.

[00:16:22] Speaker 00:
Okay.

[00:16:28] Speaker 05:
If I might well actually I'm out of time.

[00:16:32] Speaker 03:
Well, let me just ask one other question to clarify, trying to draw the line and if the line is not clear then why wouldn't we defer to the board.

[00:16:43] Speaker 03:
And why wouldn't we be obligated to defer to the board and I saw.

[00:16:47] Speaker 03:
Your argument in part was that the board's precedent basically rebutted each of the board's reasons for the conclusions it reached.

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And you cite a couple of cases and

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The cases you cite that I've read are cases where they don't go quite as deep as Judge Edward's questions suggest.

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And that's why I'm trying to draw, understand the line that you're drawing as to how a conscientious employer

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gets information about what his employees or her employees are concerned about and has a chance to respond to them.

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And if the employees don't like the response or there is no response, then the employees can certainly decide that they want an independent representative.

[00:18:14] Speaker 03:
And a lot of your arguments seem to be that even this sort of glorified suggestion box comes too close where the employee raises a complaint about working conditions, leave those types of things, training.

[00:18:42] Speaker 05:
Well, it's,

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I'm sorry, Your Honor, were you finished?

[00:18:49] Speaker 03:
Yes.

[00:18:50] Speaker 05:
I'm so sorry.

[00:18:54] Speaker 05:
T-Voice was a whole organization.

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There was this suggestion box concept in that employees submitted suggestions to T-Voice representatives by email or otherwise.

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Cardboard boxes don't meet face to face with other cardboard boxes and say, tell me what your problems are.

[00:19:21] Speaker 05:
And these T-Voice representatives were doing that.

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They were then going into meetings with management where some of the complaints and suggestions that their coworkers had brought to them were the topic of discussion with management.

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And management responded.

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sometimes accepting and sometimes rejecting the suggestions or the complaints.

[00:19:47] Speaker 03:
So as I understand it, the T voice had the authority to weed out complaints.

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So they weren't multiple complaints on the same subject, or they weren't frivolous, that type of thing.

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But it couldn't make any decision

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until after management reviewed the proposal and decided how it wanted to respond.

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And I think you'll agree with all that.

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And the record shows that.

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And so the board comes along and says, look, the AOJ posed the wrong question.

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Here's how we have to look at this.

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And it responds to suggestions about parts of the record it allegedly overlooked or shouldn't have relied on.

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And in reply, you basically repeat what you said in your opening brief.

[00:21:02] Speaker 03:
And it's a little like two ships passing in the night in that regard.

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So you're not seeking a remand except on the theory that the board A, either didn't conform to its precedent or didn't explain why it wasn't and misrepresented

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or misconstrue the record.

[00:21:40] Speaker 03:
Is that correct?

[00:21:42] Speaker 05:
That's correct.

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We think that the court should reverse.

[00:21:48] Speaker 05:
The important thing from the union's point of view to remember here is that

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The board, in addition to erecting this false notion that there has to be group interaction between employees, cleaved T-Voice into two sections.

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And it was not a bifurcated organization.

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It was a whole organization with the same T-Voice representatives.

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interacting with their coworkers to collect ideas and pain points, and then going into meetings with management to talk about them.

[00:22:32] Speaker 03:
So in one of the cases on which you rely heavily is Dylan Storrs.

[00:22:36] Speaker 03:
Yes.

[00:22:40] Speaker 03:
At the end, or on page 14 of the Westlaw copy, and I think it's page 11 of the

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NLRB decision, there's this very quick paragraph saying, in summary, most, if not all, of the employee representative proposals and grievances concerning the employee's terms and conditions of employment.

[00:23:06] Speaker 03:
And it goes on to say those proposals and grievances had been advanced collectively on a representational basis

[00:23:23] Speaker 03:
Why is what the board said here not consistent with that precedent?

[00:23:32] Speaker 05:
The board here treated the representatives as individual employees.

[00:23:38] Speaker 05:
Um, and in Dylan, uh, the board, those employees were individual, but just like the T voice representatives here, they were acting in a representative capacity.

[00:23:50] Speaker 05:
And they were presenting issues that were of collective importance to the employees.

[00:23:55] Speaker 05:
That is exactly what the T-Voice representatives here were doing.

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They were called representatives for a reason.

[00:24:02] Speaker 05:
They represented collective concerns.

[00:24:08] Speaker 05:
And in that sense, they were acting collectively exactly like in Dillon.

[00:24:14] Speaker 03:
Any further questions from my colleagues?

[00:24:18] Speaker 03:
No.

[00:24:18] Speaker 03:
All right.

[00:24:19] Speaker 03:
Let us hear from.

[00:24:21] Speaker 03:
Council for respondent, give you a couple of minutes on rebuttal.

[00:24:26] Speaker 02:
Thank you, Your Honors.

[00:24:27] Speaker 02:
Greg Lauro for the National Labor Relations Board.

[00:24:29] Speaker 02:
One question Your Honors asked this morning is where is the error the board made?

[00:24:37] Speaker 02:
The issue here is dealing and the board made very detailed actual findings on all aspects of the T-Voice program and came to the conclusion

[00:24:47] Speaker 02:
It wasn't dealing, but within the safe havens and the question is, well, my opponent has a different view.

[00:24:56] Speaker 04:
That means I read the unions brief.

[00:25:00] Speaker 04:
I think her answer to your question about what is the error.

[00:25:05] Speaker 04:
at least on dealing with, is that the board's decision here did not account for earlier board decisions that seem inconsistent with this approach.

[00:25:17] Speaker 04:
That's what she says the error is.

[00:25:18] Speaker 04:
I'll give you just two examples under dealing with.

[00:25:23] Speaker 04:
So in Reno, Hilton, the employee committees there made proposals to the employer.

[00:25:31] Speaker 04:
And the board said that satisfied the dealing with requirement.

[00:25:35] Speaker 04:
And there wasn't any suggestion at all that the employees had deliberated among themselves.

[00:25:41] Speaker 04:
And there was no, I didn't see that the board distinguished Reno in its decision.

[00:25:48] Speaker 04:
Second example of the same thing is Dylan Storrs, where, you know, the suggestions that the employees made here were very similar to the ones in Dylan Storrs,

[00:26:04] Speaker 04:
and the board found dealing with, but again, there was no evidence of any deliberation and the ALJ relied on it, yet the board doesn't discuss either one of these cases.

[00:26:14] Speaker 04:
That's her point.

[00:26:15] Speaker 04:
She said, that's the legal error.

[00:26:17] Speaker 04:
And, you know, our case law says that agencies have to, they can depart from earlier cases.

[00:26:23] Speaker 04:
They just have to acknowledge it and explain it.

[00:26:26] Speaker 04:
And her argument is that didn't happen to her.

[00:26:30] Speaker 02:
No, but I understand your honor, if I may.

[00:26:32] Speaker 02:
Yeah, sure.

[00:26:33] Speaker 02:
But in Dillon, as was discussed this morning, those- Well, wait, before you explain Dillon to me.

[00:26:40] Speaker 02:
Yes, sir.

[00:26:41] Speaker 04:
You agree the board didn't discuss Dillon, right?

[00:26:44] Speaker 02:
I don't recall the board discussing those cases in particular.

[00:26:48] Speaker 02:
What the board did, sir, consistent with precedent, is lay out the standard for dealing.

[00:26:55] Speaker 02:
Less than collective bargaining to have a collective bargaining agreement, but allowing room for some cooperation

[00:27:03] Speaker 02:
and there being certain attributes, like advancing collective proposals.

[00:27:07] Speaker 02:
There's other cases, my opponent says, that are different because proposals really- Hold on a second.

[00:27:12] Speaker 02:
Yes.

[00:27:13] Speaker 04:
Let's just focus in on this thing.

[00:27:14] Speaker 04:
I'm sorry, I hear your point, but the board said there was no deal in here because the employees had not deliberated, right?

[00:27:22] Speaker 02:
That's one of the board's factual findings.

[00:27:25] Speaker 04:
But her point is that the deliberation requirement, that's inconsistent with other board decisions.

[00:27:33] Speaker 02:
I don't think it's inconsistent, Your Honor.

[00:27:36] Speaker 02:
I think the requirement, and both Dylan and Reno, are consistent with requiring group proposals.

[00:27:45] Speaker 04:
There was no deliberation in either of those cases.

[00:27:48] Speaker 04:
Sure, they were collective proposals.

[00:27:50] Speaker 04:
They were concerns raised by all the employees.

[00:27:54] Speaker 04:
They were concerns that were collective.

[00:27:56] Speaker 04:
But there's no evidence that there was any deliberation among the employees before they submitted their concerns.

[00:28:03] Speaker 04:
And the board here said, that's why the absence of that is why there's no deal.

[00:28:10] Speaker 02:
Well, sir, in my view, the board gave a lot of reasons why there was no dealing.

[00:28:14] Speaker 02:
I think in explaining that there was no deliberation, I think the board was explaining on the suggestion box part of it, which I think we all agree is there.

[00:28:24] Speaker 02:
The representatives didn't have a right

[00:28:26] Speaker 02:
to modify or choose which to submit ministerially to management through the SharePoint program.

[00:28:33] Speaker 02:
But the board also said correctly and consistent with precedent like Dylan and Reno and with other precedent the board cited that typically bilateral dealing and we have to have a pattern or practice of it not isolated instances does involve the advancement of group proposals.

[00:28:49] Speaker 02:
Now it may be you have times where there's not a

[00:28:54] Speaker 02:
pre-deliberation to make it a group proposal, but an employee committee could still choose to advance a group proposal.

[00:29:02] Speaker 02:
And it may count, but that's not what happened here.

[00:29:04] Speaker 02:
When you look at the board's factual findings, it looked at both the pain point aspect, as we call it, which is a unilateral process by which the employee committee members have little discretion but to pass on the suggestions they get to management.

[00:29:20] Speaker 02:
That's one way.

[00:29:21] Speaker 02:
And then if management comes up with a solution, they pass it back.

[00:29:24] Speaker 02:
and looked at the meeting the representatives attend, which is consistent with brainstorming and information gathering.

[00:29:32] Speaker 02:
But to answer your question, I don't think what the board did is inconsistent with precedent like Dillon and Reno.

[00:29:39] Speaker 04:
Those cases do involve group proposals and the board in- No, but there's a difference between, yes, of course they involve

[00:29:48] Speaker 04:
They involve proposals of common interest to the employees, but you keep saying that.

[00:29:54] Speaker 04:
But the board here said there was no dealing with because there wasn't deliberation.

[00:29:59] Speaker 04:
That's different.

[00:30:01] Speaker 04:
Let me just give you one other example.

[00:30:03] Speaker 04:
Because our time is limited here.

[00:30:05] Speaker 04:
You mentioned the board said this is a suggestion box.

[00:30:10] Speaker 04:
The union points out that, again, relying on Dylan's stores here,

[00:30:16] Speaker 04:
that if there are functions other than a suggestion box, it could still qualify as dealing with.

[00:30:25] Speaker 04:
That's what Dylan says.

[00:30:28] Speaker 04:
And here, that's what the record shows.

[00:30:31] Speaker 04:
True, they related complaints, which if that's all they had done, it would have been a suggestion box.

[00:30:37] Speaker 04:
But it also proposed solutions for the complaints they identified.

[00:30:43] Speaker 04:
And so again, you have a situation, this is what the union argues, where the board has not engaged one of its own precedent, namely Dylan Storgan.

[00:30:54] Speaker 04:
It seems contrary to the decision.

[00:30:59] Speaker 02:
Your honor, I don't think it's contrary because the board addressed both aspects and explained why the pain point process was permitted suggestion box and that other aspects like the meetings

[00:31:12] Speaker 02:
were permitted brainstorming or information gathering.

[00:31:15] Speaker 02:
And one reason for that is that where employees at times did present their individual views, like there was a meeting where they discussed a new insurance product and they gave their views on training for that, but it didn't rise to the level of making collective proposals or the other kinds of back and forth that the board has found demonstrated a pattern in practice.

[00:31:41] Speaker 02:
of dealing, not just isolated instances.

[00:31:45] Speaker 02:
And so in short, there's more than one safe harbor, and an employer can participate in more than one.

[00:31:51] Speaker 02:
There's nothing barring it from having a suggestion box and some brainstorming as it did here.

[00:31:56] Speaker 03:
So I guess one of the questions here then is, did the record not show pattern and practice?

[00:32:05] Speaker 03:
It's not a question of an isolated incident.

[00:32:09] Speaker 02:
That's right.

[00:32:10] Speaker 03:
Sorry.

[00:32:11] Speaker 03:
to understand here.

[00:32:13] Speaker 03:
And our court has been very strict about requiring the agency to explain why precedent cited to it is not either controlling relevant or that the board no longer finds it persuasive, something.

[00:32:40] Speaker 03:
but the board can't ignore the cases that have been cited to it.

[00:32:48] Speaker 03:
Davidson Hotel is our most recent, so far as I know, case to that effect.

[00:32:57] Speaker 03:
And in that case, the argument was made, well, the board's decision

[00:33:04] Speaker 03:
the way it framed it, you could see it wasn't inconsistent with its prior precedent.

[00:33:09] Speaker 03:
And we said, no, the board has to explain.

[00:33:11] Speaker 03:
The party argued these other cases that the board had decided, and the board at best mentioned them inferentially.

[00:33:23] Speaker 03:
And we said, that's not good enough.

[00:33:26] Speaker 03:
And so why doesn't that approach, and I think Judge Tatel may have asked that question earlier, why doesn't that approach

[00:33:35] Speaker 03:
and principle apply here, even if you're ultimately correct that the board's decision is consistent.

[00:33:48] Speaker 03:
Doesn't the board have to tell us that when the union has raised plausible questions based on this record?

[00:33:56] Speaker 02:
No, I understand, Your Honor.

[00:33:58] Speaker 02:
My understanding of Davidson, I know, and I know you'll correct me if I'm wrong, is that it's not a blanket rule that an agency must separately distinguish every single case cited to them, no matter how many, but it must address cases that are inconsistent.

[00:34:14] Speaker 02:
And here, Dylan and Reno are not inconsistent, rather they're consistent with the principles the board did lay out in distinguishing the union's cases and explaining why this isn't dealing.

[00:34:25] Speaker 02:
And that includes

[00:34:26] Speaker 02:
Cases where it's clear, the record shows and the board found the employee committee group emphasized collective proposals.

[00:34:36] Speaker 02:
That's dealing.

[00:34:37] Speaker 02:
We don't have that here.

[00:34:38] Speaker 02:
That's one distinction.

[00:34:40] Speaker 02:
And I think overall, the board's decision is supported by record evidence and consistent with precedent.

[00:34:46] Speaker 02:
It went through each aspect of the TVA's program and explained why it was either permitted suggestion box or

[00:34:53] Speaker 02:
permissible brainstorming and information gathering, the presentation of employees' individual views, and that there's no evidence or case law saying that you have to say in the cumulative two safe harbors amount to a violation.

[00:35:07] Speaker 02:
So at the end of the day, my opponent has some probative evidence, but it's not dispositive.

[00:35:13] Speaker 02:
It doesn't bar the board's finding or compel a finding of dealing based on subtle precedent in the facts here.

[00:35:20] Speaker 02:
And so unless your honors have further questions, I see.

[00:35:22] Speaker 03:
Well, let me ask you then, is your understanding of what we meant in Davidson Hotel, if the court can read the precedent that a party has argued is inconsistent with the board's view, the court simply ought to go ahead and affirm.

[00:35:46] Speaker 03:
And I thought Davidson Hotel took a different

[00:35:51] Speaker 03:
position on that.

[00:35:53] Speaker 03:
In other words, the board has to say it, not the court.

[00:35:58] Speaker 02:
Part of my understanding is that where the agency's position on precedent is discernible and expressed, that is the board saying cases involving group proposals don't compel a finding and dealing here where we lack that according to the record evidence, or at least the board reasonably so found.

[00:36:16] Speaker 02:
I do think that's reasonable analysis by the board and it shows

[00:36:20] Speaker 02:
its findings are consistent with precedent and supported by substantial evidence.

[00:36:25] Speaker 03:
And I think that- So if the court reads the cases on which the petitioner is relying and argued to the board and there's no reference in the board's decision to group proposals or pre-submission discussion by employees,

[00:36:48] Speaker 03:
then isn't that a case for remand for the board to provide further explanation?

[00:36:55] Speaker 02:
I would acknowledge if, for example, the board said dealing generally involves proposals advanced collectively, and we don't have that here.

[00:37:04] Speaker 02:
And there are cases specifically saying no, no, no.

[00:37:08] Speaker 02:
It's enough that employees advance an individual proposal and the employer responds, then there may be an issue for the board to remand that.

[00:37:16] Speaker 02:
But I don't think that's the situation here.

[00:37:19] Speaker 02:
I think the case is cited by the board and my opponent, both support that dealing tends to involve collective proposal or something else that's a bilateral mechanism more than what was shown here.

[00:37:31] Speaker 02:
So I think at the end of the day, there isn't a basis for remanding or rejecting the board's decision, your honor.

[00:37:40] Speaker 03:
Thank you.

[00:37:41] Speaker 03:
Are there any other questions?

[00:37:43] Speaker 06:
No.

[00:37:44] Speaker 03:
All right.

[00:37:45] Speaker 03:
So council for petitioner, give you a couple of minutes.

[00:37:49] Speaker 05:
Thank you.

[00:37:49] Speaker 05:
The notion that there has to be group proposals in the sense that employees have to discuss among themselves before presenting them is simply nowhere established in any board precedent.

[00:38:08] Speaker 05:
The board has never said that it has to be group.

[00:38:13] Speaker 05:
Instead, what you see in the board cases

[00:38:19] Speaker 05:
In some situations, there is that sort of deliberation among employees.

[00:38:24] Speaker 05:
But in others, there is not.

[00:38:27] Speaker 05:
Both models exist side by side.

[00:38:29] Speaker 05:
One is not to the exclusion of the other.

[00:38:34] Speaker 05:
Secondly, the notion that there has to be back and forth between the employee group and management is also not a requirement.

[00:38:47] Speaker 05:
That would be bargaining.

[00:38:48] Speaker 05:
It is enough if management considers, either really considers or apparently considers the proposals.

[00:39:00] Speaker 05:
And we think that this arrangement, this T-Voice arrangement, ticks all of the dealing with boxes.

[00:39:13] Speaker 05:
the employee, the T-Voyce representatives in a representative capacity gathered their coworkers' thoughts and ideas, presented them to management in multiple different forums and management considered and responded.

[00:39:30] Speaker 05:
That's dealing with.

[00:39:33] Speaker 00:
You know, I hear you, I understand what you're saying, but you pretty much

[00:39:39] Speaker 00:
your view, in my view, pretty much eliminates the notion of brainstorming and suggestion box, which I think would make no sense given the way companies operate.

[00:39:52] Speaker 00:
It makes perfectly good sense for companies want to understand how employers are reacting to some of their work circumstances.

[00:39:58] Speaker 00:
In DuPont, you say there's nothing in the board case law that supports what they're saying here.

[00:40:05] Speaker 00:
I mean, DuPont's one of the cases you're talking about.

[00:40:07] Speaker 00:
They said each employee

[00:40:09] Speaker 00:
has management representatives who are full participating members.

[00:40:13] Speaker 00:
These representatives interact with employee committee members under the rules of consensus decision making.

[00:40:21] Speaker 00:
Under this style of operation, the management members of the committee discuss proposal with unit employee members and have the power to reject any proposals.

[00:40:32] Speaker 00:
In circumstances where management members of the committee discuss proposals with employee members and have the power to reject any proposal, there is dealing.

[00:40:41] Speaker 00:
That's not what's going on here.

[00:40:44] Speaker 00:
And that's the overarching principle in all of the board's cases.

[00:40:49] Speaker 00:
It is true that maybe our rule is the board has to go through every single case that they've decided and square it.

[00:40:57] Speaker 00:
That's not my understanding of deference here, especially when you have this overarching principle which says you have to have a situation in which employee representatives are presenting what the employees are proposing and they are dealing with managers who can address what they are proposing.

[00:41:21] Speaker 00:
Here we had a situation where the members were simply collecting information

[00:41:28] Speaker 00:
Screen it for grammar, that's all, and passing it on to management.

[00:41:31] Speaker 00:
They had no authority.

[00:41:33] Speaker 00:
You can cite an example or two where it said, well, in one situation, a manager heard a complaint about X and fixed it.

[00:41:40] Speaker 00:
I think the board can say, that's minuscule.

[00:41:44] Speaker 00:
That's not the point.

[00:41:45] Speaker 00:
The overall program was not designed to do that.

[00:41:48] Speaker 00:
The overall program was designed to collect, express concern by individual employees, not the group, and pass them on to management.

[00:41:58] Speaker 00:
That's not what these cases are saying.

[00:42:01] Speaker 00:
What's your best case?

[00:42:02] Speaker 00:
Let me ask you that.

[00:42:03] Speaker 00:
What do you think is your best case?

[00:42:05] Speaker 05:
I think there are two best cases.

[00:42:07] Speaker 05:
One is Dylan and one is UPMC.

[00:42:11] Speaker 05:
I would like to respond to a couple of points that you made, if I might.

[00:42:14] Speaker 06:
Sure.

[00:42:16] Speaker 05:
To the point about the union's argument would eliminate brainstorming and suggestion box.

[00:42:22] Speaker 05:
I disagree with that.

[00:42:25] Speaker 05:
These were not brainstorming sessions that these T voice representatives were going to.

[00:42:32] Speaker 05:
They were asked in advance of the meetings to gather their employee, their coworkers thoughts on specific topics and come ready to talk about solutions.

[00:42:45] Speaker 05:
It was not a situation where you have a bunch of people get together and in the meeting, try to generate ideas.

[00:42:52] Speaker 00:
The idea is those representatives could not address whatever concerns were expressed.

[00:42:59] Speaker 00:
They simply passed on.

[00:43:01] Speaker 05:
That is not having management with the authority in the meeting to respond right then and there is not.

[00:43:10] Speaker 00:
Not then and there, counselor.

[00:43:12] Speaker 00:
I'm saying at any point, they're simply collecting information and passing it on.

[00:43:17] Speaker 00:
It's like a suggestion bar collects information and it's passed on.

[00:43:23] Speaker 00:
I hear you.

[00:43:25] Speaker 05:
The element of consideration can be met by a manager receiving the complaint or the proposal and conferring with another manager.

[00:43:37] Speaker 05:
That's consideration.

[00:43:41] Speaker 04:
Okay.

[00:43:41] Speaker 04:
Could you just, Judge Jed was asked you to identify two cases and you mentioned Dylan and one other.

[00:43:48] Speaker 04:
Could you just go ahead and explain why you think those cases are responsive to his question?

[00:43:54] Speaker 05:
Yes, first let me talk about Dylan.

[00:43:58] Speaker 05:
In Dylan, each grocery store had its own associates committee and the members of that associates committee were asked to get the input of their coworkers and even when not asked, their coworkers would come to them with complaints and suggestions.

[00:44:20] Speaker 05:
They would then voice these at the meeting

[00:44:24] Speaker 05:
management would take them under consideration, in fact.

[00:44:31] Speaker 04:
And is this what happened here?

[00:44:32] Speaker 04:
Is that what happened here also?

[00:44:34] Speaker 05:
Yes, that is what happened here.

[00:44:39] Speaker 05:
I'm sorry, go ahead.

[00:44:40] Speaker 04:
No, go ahead.

[00:44:41] Speaker 04:
I didn't need to interrupt you.

[00:44:42] Speaker 05:
Go ahead.

[00:44:43] Speaker 05:
That is what happened here many times.

[00:44:45] Speaker 04:
And it wasn't just a few unusual situations where that happened.

[00:44:52] Speaker 04:
Where is the evidence that it was actually beyond being miniscule, that it happened regularly?

[00:44:59] Speaker 05:
Well, in every national meeting, the national meetings were held monthly.

[00:45:03] Speaker 05:
In every national meeting, there were discussions

[00:45:08] Speaker 05:
there were focus groups in which the objective was to flesh out solutions to employee problems that happened monthly.

[00:45:16] Speaker 05:
There were substantive discussions at the regional levels that happened twice a month, and at the local levels that happened once a month.

[00:45:24] Speaker 05:
I mean, once a week.

[00:45:25] Speaker 04:
And what about the other case?

[00:45:26] Speaker 05:
And there were the summits.

[00:45:28] Speaker 04:
Yeah, the summits, the national summits.

[00:45:31] Speaker 04:
That's right.

[00:45:32] Speaker 04:
Yeah, and so what about the other case?

[00:45:34] Speaker 05:
Uh, UPMC, I think is, uh, it is a 2018 case that, that I think is, um, also instructive, uh, in, in that case, uh, it was, uh, acute care hospital, very large one.

[00:45:52] Speaker 05:
And the, uh, housekeeping department had an employee council and, uh, employing members of that council made proposals, um,

[00:46:05] Speaker 05:
and presented grievances and individually did so in the meetings and management responded and took some of them under consideration.

[00:46:16] Speaker 05:
So taking it under consideration, according to Dylan and Electrolation is sufficient to show brain

[00:46:28] Speaker 04:
And just remind me, did the board, you say the board did not address either of these in its decision, correct?

[00:46:38] Speaker 05:
That's correct.

[00:46:39] Speaker 05:
It did not.

[00:46:41] Speaker 00:
Thank you.

[00:46:42] Speaker 00:
And my, I just, you may disagree.

[00:46:45] Speaker 00:
I'm curious now.

[00:46:46] Speaker 00:
My recollection is that in Dillon, the board focused on the collective aspects of the process, which is not here.

[00:46:53] Speaker 05:
The board did not focus on it.

[00:46:55] Speaker 00:
That's just our different reading of the cases.

[00:46:59] Speaker 00:
Okay.

[00:47:00] Speaker 04:
Can we talk about what collective means for a minute?

[00:47:04] Speaker 04:
I know they use the word collective.

[00:47:05] Speaker 04:
What I thought, and maybe, maybe I don't understand it, but I thought there was a difference between

[00:47:13] Speaker 04:
a requirement that they deliberate, actually sit down and discuss it, and a collective proposal.

[00:47:19] Speaker 04:
I thought collective meant that it was a concern that many employees shared.

[00:47:25] Speaker 05:
That is the union's view.

[00:47:27] Speaker 04:
Is there a case that says that?

[00:47:30] Speaker 05:
I'm so sorry.

[00:47:31] Speaker 05:
I am so sorry.

[00:47:34] Speaker 05:
I do not have the ability to.

[00:47:37] Speaker 05:
I'm so sorry.

[00:47:37] Speaker 05:
I had an interruption there.

[00:47:39] Speaker 04:
Happens to all of us.

[00:47:41] Speaker 05:
And I don't have the technique.

[00:47:44] Speaker 05:
There isn't a button for me to turn it off.

[00:47:47] Speaker 04:
But can you point to a case that, because Judge Edwards is right, these opinions that you're relying on talk about collective proposals.

[00:48:03] Speaker 04:
And what I'm hoping you can help me understand is, is that different from deliberation?

[00:48:12] Speaker 00:
Because that's your point, right?

[00:48:13] Speaker 00:
And Dylan, to quote them, in their conclusion, the board focused on whether the proposals were advanced collectively on a representational basis.

[00:48:26] Speaker 03:
That's what I quoted from earlier when I was questioning counsel for petitioner.

[00:48:32] Speaker 03:
And I should clarify that in Davidson, we didn't say you have to distinguish every case that you ever decided, but you do have to respond to the cases that are cited to you by here, the petitioner.

[00:48:53] Speaker 03:
And that's what I was exploring with council for the board.

[00:49:00] Speaker 03:
So they didn't cite obviously the UPMC, but they did cite Dylan and Reno.

[00:49:13] Speaker 03:
And the board didn't say anything about those cases.

[00:49:16] Speaker 03:
And while it may well be true that this collective aspect

[00:49:22] Speaker 03:
is critical, at least in Dylan, the court doesn't, I mean the board doesn't mention that as part of its consideration or its rationale for finding that

[00:49:40] Speaker 03:
these entities at the stores were labor organizations under the statute.

[00:49:45] Speaker 03:
That's all we're trying to understand here.

[00:49:47] Speaker 03:
So do you have an answer to Judge Tatel's question, your best case on what collective means?

[00:49:55] Speaker 05:
I believe that Dylan is a perfect expression of it.

[00:49:59] Speaker 05:
The reason that it was those interests by the employees were regarded as collectively presented is because it was representatives

[00:50:10] Speaker 05:
presenting those grievances and proposals.

[00:50:14] Speaker 05:
on behalf of their absent coworkers.

[00:50:16] Speaker 05:
That is exactly what we had here.

[00:50:18] Speaker 00:
And what the board says here, counselor, when you have a situation in which the person who's the quote unquote alleged representative is merely collecting and only eliminating things that are redundant and correcting grammar and then simply passes it on, that doesn't fit what they're talking about when they're talking about representational.

[00:50:40] Speaker 00:
and the board I don't know how the board doesn't get deference on that call the board was factually wrong that is these employees oh okay well then our standard is different so you're saying the board that's that's exactly what I've been trying to get to you disagree with the board's factual finding absolutely okay that's a whole different you're in a really tough stand at a review there

[00:51:04] Speaker 05:
Well, we we complain about two things, their application of the law and their.

[00:51:10] Speaker 00:
But I think I think what we're really talking about is you disagree with their findings, because I think these cases are squared up with prior cases.

[00:51:18] Speaker 00:
And that's what I've been trying to understand.

[00:51:19] Speaker 00:
I think you disagree with their findings of fact.

[00:51:23] Speaker 05:
We do.

[00:51:23] Speaker 00:
And our briefing on a substantial evidence course.

[00:51:27] Speaker 00:
And, you know, that's the question.

[00:51:30] Speaker 05:
And they were legally incorrect.

[00:51:34] Speaker 04:
Wait, but to pursue that, I just want to pursue what Judge Edwards asked you.

[00:51:40] Speaker 04:
Let me just see if I can.

[00:51:42] Speaker 04:
Is your argument that the board failed to consider St.

[00:51:47] Speaker 04:
Dylan dependent on your argument that the board's findings are wrong?

[00:51:52] Speaker 04:
In other words, do you understand my question?

[00:51:56] Speaker 04:
In other words, let me put it this way.

[00:51:59] Speaker 04:
Suppose we decided that the board's findings about what happened were acceptable.

[00:52:06] Speaker 04:
That is, they didn't meet our standard for reversing the board fact finding.

[00:52:11] Speaker 04:
Would you then agree that there's no problem in the board not distinguishing its prior cases because those cases are by definition different?

[00:52:20] Speaker 05:
Do you know what I mean?

[00:52:23] Speaker 05:
I do.

[00:52:23] Speaker 05:
You're asking if we accept the board's fact findings.

[00:52:27] Speaker 04:
Yes.

[00:52:27] Speaker 05:
the union does not, would the court be right?

[00:52:31] Speaker 05:
No, it would not.

[00:52:34] Speaker 05:
Then tell me why.

[00:52:34] Speaker 05:
Because these particular T-voice representatives were doing it all.

[00:52:41] Speaker 05:
They collected, they presented, and then they discussed.

[00:52:46] Speaker 04:
And the board- Wait, wait.

[00:52:47] Speaker 04:
Ms.

[00:52:48] Speaker 04:
Smith, you're resisting my question.

[00:52:50] Speaker 04:
I'm sorry?

[00:52:51] Speaker 04:
You're fighting my question, I think.

[00:52:54] Speaker 04:
I'm sorry.

[00:52:55] Speaker 04:
The board, am I right?

[00:52:56] Speaker 04:
The board found that they were just collecting concerns and submitting them, right?

[00:53:04] Speaker 04:
That's what the board found.

[00:53:06] Speaker 04:
Is that true?

[00:53:07] Speaker 05:
That is what the board said.

[00:53:09] Speaker 04:
Okay.

[00:53:09] Speaker 04:
Now, if that's true, if that's all they did, then wouldn't you agree that that's okay, that that meets the standard for, what do you call it, question box or something?

[00:53:25] Speaker 05:
If you're not looking at the T-Voice organization as a whole, and if all these people were doing

[00:53:32] Speaker 05:
is just collecting and passing along, then that would fit the employee screening committee in.

[00:53:42] Speaker 04:
But that's in fact, isn't that in fact what the board found?

[00:53:45] Speaker 05:
No, the board also discussed the meetings that these people were in and said that they were brainstorming meetings and they were not.

[00:53:54] Speaker 05:
And there's no precedent where you've got all of those things going on.

[00:54:00] Speaker 05:
and the board found that there was no dealing.

[00:54:03] Speaker 04:
So then your point is that taking the board's findings as they are without regard to whether the support, in other words, just accepting the findings as they are, this case is inconsistent with Dylan, Reno, and these other cases.

[00:54:19] Speaker 04:
That's your point, right?

[00:54:21] Speaker 04:
Yes.

[00:54:23] Speaker 04:
Okay.

[00:54:26] Speaker 03:
All right.

[00:54:27] Speaker 00:
Okay.

[00:54:27] Speaker 00:
I have no other questions.

[00:54:28] Speaker 00:
No other questions.

[00:54:30] Speaker 03:
Thank you.

[00:54:30] Speaker 03:
Thank you, council.

[00:54:32] Speaker 03:
We'll take the case under advisement.