[00:00:00] Speaker 00: Case number 20-1090 Ed Al, RAV Truck and Trailer Repairs, Inc., and Concrete Express of New York, LLC, Petitioners, versus National Labor Relations Board. [00:00:11] Speaker 00: Mr. Tulencik for the petitioner, Mr. Soder for the respondent. [00:00:15] Speaker 03: Mr. Tulencik, good morning, and you may proceed. [00:00:19] Speaker 01: Good morning, Your Honors. [00:00:21] Speaker 01: May it please the Court. [00:00:22] Speaker 01: The Board's remedial order in this case should not be enforced because compliance with the order would cause my client substantial economic harm. [00:00:31] Speaker 01: My client closed his business because he lost his lease and because he was operating at a substantial loss. [00:00:38] Speaker 01: He had lost $270,000 in 2017. [00:00:43] Speaker 01: He was losing some $44,000, I believe, up through May of 2018. [00:00:50] Speaker 01: My client operated a registered motor vehicle repair shop in New York. [00:00:56] Speaker 01: What that means is he can perform repairs on third party vehicles for compensation. [00:01:06] Speaker 01: The building itself is what is registered, not the business. [00:01:09] Speaker 01: So when my client lost his lease, he also lost his registration. [00:01:16] Speaker 01: He moved to a different location for a period of three months. [00:01:22] Speaker 01: The lease specifically stated it was to finish the repairs from the old location, the lease terminated at the end of May, 2018, and he shut down the business. [00:01:39] Speaker 01: According to board case law, even if the closing is found to be discriminatory, the restoration order should not be enforced because as written, it requires my client to violate New York law. [00:01:54] Speaker 01: And it also causes my client to restore an unprofitable business, which board case law clearly states they will not and cannot do. [00:02:08] Speaker 01: So in this matter, the board is arbitrarily applying case law to force my company to reopen. [00:02:18] Speaker 05: Also, my company under Darlington- Did you put in any decent evidence before the board on your client's economic situation? [00:02:27] Speaker 05: Can you hear me okay? [00:02:30] Speaker 01: Yes, your honor. [00:02:31] Speaker 05: Okay. [00:02:33] Speaker 01: We did. [00:02:34] Speaker 05: We filed a we just put in a tax return belatedly. [00:02:38] Speaker 01: There was we put in a tax return that we that we submitted a trial was not signed right that that tax return was filed in September electronically. [00:02:52] Speaker 01: That is why it was not signed. [00:02:56] Speaker 01: The judge asked for a signed copy. [00:02:59] Speaker 01: My client signed it. [00:03:01] Speaker 01: We submitted it five months before he issued his decision, but it was filed in September. [00:03:06] Speaker 05: Did you try this before the board? [00:03:09] Speaker 01: I did, your honor. [00:03:11] Speaker 05: When you reflect back on it, if you're trying to prove economic incapacity, is that really the way you'd make your case? [00:03:22] Speaker 05: I'm not getting it. [00:03:24] Speaker 05: I mean, there's no brain surgery required here. [00:03:26] Speaker 05: If you're trying to show, I lost the lease, and here are my financials, you stick in a tax return and that's it? [00:03:37] Speaker 05: I'm sorry if it sounds a little bit callous, but I don't get it. [00:03:43] Speaker 01: I understand what you're saying. [00:03:45] Speaker 01: I presented the evidence. [00:03:46] Speaker 05: What evidence? [00:03:47] Speaker 01: That was given to me. [00:03:49] Speaker 05: Oh, okay. [00:03:50] Speaker 01: The evidence. [00:03:52] Speaker 05: So wait, so I need to understand this because I'm being totally honest with you, we're all smart people sitting on this screen. [00:03:59] Speaker 05: That isn't the way you'd prove economic incapacity. [00:04:03] Speaker 05: It's really not a hard thing to do to show that I have a client. [00:04:07] Speaker 05: Our claim is that in this business that we're fighting over, [00:04:13] Speaker 05: There were continuous losses and there's no prospect of it getting better. [00:04:17] Speaker 05: And we've lost the lease, et cetera, et cetera. [00:04:20] Speaker 05: It's an easy way to prove those things. [00:04:21] Speaker 05: Now, are you telling us now that you simply, because of the situation you were in, you couldn't get more than you put in? [00:04:31] Speaker 05: Because what you put in was silly. [00:04:35] Speaker 01: Your honor, that's your opinion, I disagree. [00:04:37] Speaker 05: No, no, counsel, you just said there are better ways to do it, to show economic incapacity. [00:04:43] Speaker 05: First, an unsigned tax return, and the return doesn't tell you anything other than it's a snapshot, but it doesn't tell you what's going on with a business. [00:04:55] Speaker 05: And that's all you put in, was an economic return, I mean, a tax return? [00:05:00] Speaker 01: that showed my client lost $272,000, yes. [00:05:04] Speaker 05: But that doesn't tell you about ongoing capacity. [00:05:08] Speaker 05: All right, you're answering my question. [00:05:10] Speaker 05: That's all you put in. [00:05:12] Speaker 05: I thought you were indicating to us that that's all you were given. [00:05:17] Speaker 05: And so that's why that's all you put in. [00:05:20] Speaker 01: Correct. [00:05:21] Speaker 01: That's correct, Your Honor. [00:05:23] Speaker 05: That gives me some explanation because I still want you to know as a lawyer like you, [00:05:29] Speaker 05: If that's the best you can do, improving economic incapacity, you really ought to rethink it. [00:05:35] Speaker 05: That's not the way you do it. [00:05:38] Speaker 01: I'm sorry you think that, Your Honor. [00:05:40] Speaker 05: I mean, and it's an important point, as it turns out, under the case law. [00:05:44] Speaker 05: That's why I'm all over you on this. [00:05:47] Speaker 05: It's a very important point. [00:05:50] Speaker 05: You're making our work a whole lot harder. [00:05:53] Speaker 01: I don't disagree with that, but the case law is clear. [00:05:57] Speaker 01: He lost his lease. [00:05:59] Speaker 01: He didn't close because of the union. [00:06:02] Speaker 01: Excuse me. [00:06:04] Speaker 05: No, go ahead. [00:06:05] Speaker 05: I'm sorry. [00:06:05] Speaker 01: No, I didn't hear. [00:06:06] Speaker 01: I didn't know if you were speaking a question. [00:06:08] Speaker 01: I'm sorry. [00:06:09] Speaker 05: No, the case law. [00:06:11] Speaker 05: I didn't know what you said. [00:06:12] Speaker 05: The case law is clear. [00:06:13] Speaker 05: And then you said he lost his lease. [00:06:15] Speaker 01: I mean, there's a case that I cited that is the same exact [00:06:24] Speaker 01: issue. [00:06:25] Speaker 05: Did you put the lease in? [00:06:26] Speaker 01: Yes, both leases are in. [00:06:29] Speaker 05: Okay. [00:06:30] Speaker 01: Both leases are in. [00:06:31] Speaker 01: He lost his lease, so therefore he lost his operation of being a quote unquote registered repair shop. [00:06:40] Speaker 01: Right. [00:06:40] Speaker 01: He simply leased 600 square feet in another location that wasn't registered to finish the repairs and then he was done. [00:06:50] Speaker 01: shut the business down. [00:06:51] Speaker 01: In Chariot Marine Fabricators Industry Corp. [00:06:55] Speaker 01: 335 NLRB 339-2001, there was no restoration order where a single employer closed its unprofitable operation but continued its profitable operation even though the closing violated Section 8A3 of the Act. [00:07:13] Speaker 01: The board said the restoration would be unduly burdensome because the employer lost its lease, would be forced to lease a new premise, and would require reopening two years after closure, and would therefore threaten the viability of the profitable operation. [00:07:35] Speaker 01: There's three options on the table for him under the board's order right now. [00:07:41] Speaker 01: He can violate New York law and be fined $1,000 each time he gets caught. [00:07:50] Speaker 05: That's all in the record. [00:07:52] Speaker 01: That's in the record. [00:07:54] Speaker 01: He can find a new location to either lease or buy and have it retrofitted to [00:08:05] Speaker 01: become a registered motor vehicle repair shop, all which requires automatic sprinklers, fire alarms, standpipes, oil and water separators, mechanical ventilation, or he can try to find a new lease of a building that's already registered. [00:08:21] Speaker 05: Was the case that you just cited, uh, uh, Charlotte chariot Marine. [00:08:25] Speaker 05: Yes. [00:08:26] Speaker 05: Yeah. [00:08:26] Speaker 05: And that's where the company's controller testified to the company's monthly financials, right? [00:08:32] Speaker 01: I believe so. [00:08:33] Speaker 05: Yeah. [00:08:33] Speaker 05: Is that what happened here? [00:08:35] Speaker 05: It is not, Your Honor. [00:08:36] Speaker 05: Yeah, right. [00:08:36] Speaker 05: That's what I'm asking. [00:08:37] Speaker 05: That's my concern. [00:08:39] Speaker 05: You're making it so much harder for us than it otherwise needs to be. [00:08:42] Speaker 05: How long did they continue finishing up, as you put it? [00:08:47] Speaker 01: He signed the lease in April. [00:08:49] Speaker 01: No. [00:08:50] Speaker 01: Yes, he signed the lease in April. [00:08:51] Speaker 01: He wasn't allowed to begin repairs until mid to late April. [00:08:57] Speaker 01: He closed the business [00:09:00] Speaker 01: He was done with the pairs mid-May, closed the business in mid-May. [00:09:04] Speaker 01: So he operated for a month. [00:09:07] Speaker 05: And there's evidence in the record to indicate that that second lease no longer exists? [00:09:14] Speaker 01: Correct. [00:09:14] Speaker 01: That lease had an expiration date of 5-31-2018. [00:09:19] Speaker 05: All right. [00:09:20] Speaker 05: And what's the what's the evidence indicating that he no longer does repair work? [00:09:24] Speaker 05: What's the other business doing? [00:09:26] Speaker 01: That's the truck is he it's a concrete. [00:09:29] Speaker 01: It's a concrete business. [00:09:30] Speaker 01: So cement trucks, they mix on site, they deliver concrete. [00:09:35] Speaker 05: And that's still operating. [00:09:37] Speaker 01: That is still operating. [00:09:38] Speaker 01: They are operating at current time, two to three trucks. [00:09:42] Speaker 05: And how many employees there? [00:09:45] Speaker 01: I believe it is two drivers, a dual employee yard man mechanic and the owner. [00:09:53] Speaker 05: And what do I do as a judge with the undisputed evidence that in this case, everyone agrees that this is one operation. [00:10:04] Speaker 01: Great. [00:10:05] Speaker 01: Just like it was in chariot Marine fabricators. [00:10:07] Speaker 05: My chair at Marine Fabricators has some evidence in it, but in any event, I'm still, what does that mean? [00:10:13] Speaker 01: It's one operation. [00:10:15] Speaker 01: If he's one operation, one operation was a motor vehicle repair shop. [00:10:19] Speaker 01: They performed repairs on third party trucks. [00:10:23] Speaker 01: Right. [00:10:25] Speaker 01: We've admitted that they also performed some repairs on his concrete trucks. [00:10:30] Speaker 01: The two mechanics that operated at Rav. [00:10:33] Speaker 01: One said he spent two to three days a week on the trucks. [00:10:36] Speaker 01: The other said he spent two to three hours a day on the trucks. [00:10:40] Speaker 05: So the record indicates that it's one operation undisputed and there's crossover work. [00:10:47] Speaker 01: There is some crossover work, but the other case, there is another case out there, and the judge did find that Concrete Express does have a mechanic that performs work only on the Concrete Express trucks. [00:11:02] Speaker 05: Which means what? [00:11:03] Speaker 05: If there's also, if, wait a minute, I'm trying to get you to understand what I'm understanding about the record. [00:11:08] Speaker 05: The record is it's only one operation. [00:11:11] Speaker 05: One owner, one op, that's conceded. [00:11:14] Speaker 05: It's one operation. [00:11:15] Speaker 01: Correct. [00:11:15] Speaker 01: Two separate businesses, one operation. [00:11:18] Speaker 05: And well, there are lots of businesses that do more than one thing. [00:11:22] Speaker 05: So that's not really interesting. [00:11:24] Speaker 05: There are lots of businesses that exist that way. [00:11:26] Speaker 05: And you've kind of constructed a picture here, a legal picture of one operation that does a couple of things. [00:11:32] Speaker 05: And apparently there's crossover work. [00:11:34] Speaker 05: If I'm working in one side, I can also work in the other side. [00:11:37] Speaker 05: Yes. [00:11:37] Speaker 01: No, no, no, that is not, that is not what happens. [00:11:40] Speaker 05: Never happens. [00:11:41] Speaker 01: No, I thought you just told me it does happen. [00:11:44] Speaker 05: I thought you told me. [00:11:45] Speaker 01: I understand what you're saying. [00:11:46] Speaker 01: There are two separate locations, right? [00:11:48] Speaker 01: I understand concrete trucks, which at concrete express, and they have their own mechanic. [00:11:55] Speaker 01: There was Rav Truck and Trailer Repair that had their own mechanics that worked on third party trucks. [00:12:03] Speaker 01: That was their business model. [00:12:04] Speaker 05: Did Rav ever work on the cement side? [00:12:07] Speaker 01: They worked on some of the cement trucks, yes. [00:12:09] Speaker 05: All right, so that in this record, in a single operation, the record indicates that it not only was possible, it had been done, that people in Rav could work on the cement side. [00:12:23] Speaker 05: That was nothing unusual about that. [00:12:26] Speaker 05: The frequency is not the question I'm raising. [00:12:28] Speaker 05: It was done. [00:12:30] Speaker 01: You're correct. [00:12:30] Speaker 05: Yes. [00:12:31] Speaker 05: So and I'm trying to give this some context because you're fighting about the restoration order. [00:12:36] Speaker 05: And I understand that. [00:12:38] Speaker 05: But you see, when you think about it and it's one employer and one operation for this legal record, a remedy could be constructed where, to the extent that there was work available, the employees in Rov [00:12:53] Speaker 05: allegedly have no more work to do in the RAV operation, could do it in the cement operation, that would remain to be seen in compliance. [00:13:03] Speaker 01: They can work, yes, there's two trucks where now three mechanics would be working on two trucks and they would no longer be receiving a profit from working on those trucks. [00:13:14] Speaker 05: You're not listening to my question, you're fighting about something I'm not raising. [00:13:22] Speaker 05: The economic [00:13:23] Speaker 05: Inability is one issue. [00:13:26] Speaker 05: I'm respectful of that. [00:13:27] Speaker 05: I'm not fighting that. [00:13:28] Speaker 05: That remains to be seen, in part because you didn't prove it very well. [00:13:34] Speaker 05: The question I'm raising is the possibility of RAV, people who mostly worked in RAV, being able to work in cement in what is a single operation. [00:13:45] Speaker 05: And you're conceding, yes, that possibility exists. [00:13:48] Speaker 05: You're saying, but there may be a problem because they may not make any money if they do it that way. [00:13:51] Speaker 01: The problem is, [00:13:54] Speaker 01: There is little to no work to do. [00:13:58] Speaker 01: You're asking the mechanics to work on the two trucks. [00:14:00] Speaker 05: You're trying to make the argument about economic incapacity. [00:14:06] Speaker 05: Leave it aside. [00:14:08] Speaker 05: I'm not doubting the importance of that. [00:14:10] Speaker 05: I want to make sure I have this structure straight in my head. [00:14:13] Speaker 05: You're not doubting there's a single operation in which employees on either side can work on the other side. [00:14:22] Speaker 01: They could go to Concrete Express and sit there and not do anything. [00:14:27] Speaker 05: No, no, no. [00:14:27] Speaker 05: You're being sarcastic and I'm not. [00:14:29] Speaker 01: Your Honor, I'm not. [00:14:30] Speaker 05: Well, then let's let's do it this way. [00:14:32] Speaker 05: Let's assume cement has more work than they know what to do with. [00:14:36] Speaker 05: OK. [00:14:37] Speaker 05: Is it very likely that people and Rob could be put over there? [00:14:40] Speaker 01: If they have more work than they know what to do, please don't quibble with it. [00:14:45] Speaker 05: They have more work than they know what to do with. [00:14:48] Speaker 05: Stay with my question, please. [00:14:50] Speaker 05: Yes. [00:14:50] Speaker 05: Really frustrating. [00:14:52] Speaker 05: Stay with my question. [00:14:53] Speaker 05: Yes. [00:14:53] Speaker 05: Trying to understand this case. [00:14:55] Speaker 05: They have more than they know what to do with in the structure that you have. [00:15:00] Speaker 05: I thought conceited exists as I'm describing it. [00:15:03] Speaker 05: There's one operation. [00:15:04] Speaker 05: And so if the work goes down in Rav, in this one operation, people in Rav can go over to the cement side and do the work there. [00:15:13] Speaker 05: And that would not be a surprise if the work was there, right? [00:15:16] Speaker 05: Yes or no? [00:15:18] Speaker 01: Well, no, because Concrete Express has its own mechanic. [00:15:22] Speaker 01: Concrete Express has its own mechanic. [00:15:23] Speaker 05: If there's more work than Concrete Express knows what to do with. [00:15:30] Speaker 04: If there's more work than they've ever seen. [00:15:34] Speaker 05: and the Rav people are now out of work. [00:15:37] Speaker 05: Would it be a surprise to anyone that this owner would say, well, I want some of the Rav people to go over the cement and work there. [00:15:44] Speaker 01: There's more work than they know what to do with it. [00:15:46] Speaker 05: I've said that 12 times now your honor I know you're really really annoying what you're doing. [00:15:51] Speaker 05: Stop playing with me answer my question if there is I'm gonna say one more time because it's really important I've really tried to understand that case and I'm not unsympathetic to the claim you're making but you're making this really hard I'm trying to figure out what the the corporate structure is here. [00:16:08] Speaker 05: There is an operation [00:16:12] Speaker 05: on one side and when operation on the other side, you're telling me they're connected. [00:16:17] Speaker 05: You agree with that and you're quibbling over whether or not they could afford to move people over. [00:16:22] Speaker 05: I'm giving you a hypothetical and I'm entitled to do that as a judge. [00:16:25] Speaker 05: I'm giving you a hypothetical that the cement side now has tons of work. [00:16:31] Speaker 05: Would it be a surprise to you or would I be wrong in saying would not be a surprise at all that the rough people would be moved over to the cement side and do that work? [00:16:42] Speaker 01: if there was work available, they could go over and do that work. [00:16:45] Speaker 05: Thank you. [00:16:45] Speaker 05: It's taken us 12 minutes to get there. [00:16:50] Speaker 05: All I want to know. [00:16:53] Speaker 03: Judge Tatel, do you have any questions? [00:16:55] Speaker 04: I just have one very quick question, which is that you and Judge Edwards have been talking about the remedy. [00:17:01] Speaker 04: I just have one question about the underlying [00:17:05] Speaker 04: the underlying violation. [00:17:08] Speaker 04: And it's this. [00:17:10] Speaker 04: And it's about Trittini's testimony. [00:17:14] Speaker 04: It was critical to a whole series of issues here, to Valencia's termination, to Gonzalez's layoff, to the partial closure, to RIV's economic state. [00:17:23] Speaker 04: It's critical to all of those issues. [00:17:26] Speaker 04: The board discredited, the board and the ALJ discredited his testimony on all of those issues. [00:17:32] Speaker 04: And you don't challenge that, correct? [00:17:35] Speaker 01: Your honor, do you know why I didn't challenge that? [00:17:38] Speaker 04: Just answer my question. [00:17:40] Speaker 04: No, I did not. [00:17:45] Speaker 04: Let me finish my question. [00:17:48] Speaker 04: My question is that since that's unchallenged, since his testimony is discredited, [00:17:57] Speaker 04: When I looked at your briefs and I read them carefully, I couldn't find, I found almost nothing that could be used to counter the board's evidence in support of all this. [00:18:09] Speaker 01: Can I speak, your honor? [00:18:11] Speaker 04: Yes. [00:18:12] Speaker 04: Now you can answer my question. [00:18:13] Speaker 04: Am I right about that? [00:18:13] Speaker 04: What evidence is there in the record that you would point to other than Trentini that would sustain your burden on any of these issues? [00:18:25] Speaker 01: The fact that the mechanics own testimony says that they spend limited amounts of time working on the concrete express trucks. [00:18:38] Speaker 01: Their own testimony from Valencia said, I spend two to three hours a day on concrete express trucks. [00:18:46] Speaker 01: That's 15 hours a week. [00:18:48] Speaker 04: That's when they- I'm not talking about the remedy. [00:18:52] Speaker 04: I'm talking about the underlying violation. [00:18:55] Speaker 04: I'm talking about the underlying violation that they were terminated because of their union activities. [00:19:01] Speaker 04: That's what I'm talking about. [00:19:03] Speaker 04: And the evidence that you rely on is Trottini, but he was discredited. [00:19:07] Speaker 04: So I don't see your case anymore. [00:19:10] Speaker 04: Which is exactly why I thought you stood up talking about the remedy. [00:19:14] Speaker 04: I said, oh, he's onto something. [00:19:17] Speaker 04: He's going to skip his weak case, that is the merits, and talk about the remedy. [00:19:20] Speaker 04: Am I right about that? [00:19:21] Speaker 01: Yes, your honor. [00:19:22] Speaker 01: And can I tell you why I skipped the credibility? [00:19:26] Speaker 01: The last time I was before this court, I had three pages of a brief where a witness lied, an admitted lying under oath. [00:19:37] Speaker 01: And I argued credibility and I was told that I was barking up the wrong tree. [00:19:42] Speaker 04: Well, this is a totally different case. [00:19:44] Speaker 04: We have lots of cases. [00:19:45] Speaker 04: It can't be a serious argument. [00:19:48] Speaker 04: I'm sorry, Harry, go ahead. [00:19:49] Speaker 05: No, I'm sorry, I'm sorry. [00:19:51] Speaker 04: I mean, we have lots of cases. [00:19:53] Speaker 04: We have lots of lawyers for companies who, not lots, but we do have lawyers who stand up here and actually make an effective argument about an NLRB credibility finding. [00:20:06] Speaker 04: In fact, our case law permits that. [00:20:10] Speaker 04: So it's stunning to me that you would say, well, since you lost in one case, you didn't make the argument here. [00:20:16] Speaker 04: I just don't understand that. [00:20:19] Speaker 01: Your honor, it wasn't that I lost. [00:20:20] Speaker 01: It was that I was told you're barking up the wrong tree. [00:20:23] Speaker 01: We don't overturn credibility. [00:20:25] Speaker 04: There's lots of trees in the forest. [00:20:27] Speaker 04: I understand that. [00:20:28] Speaker 01: I understand that. [00:20:30] Speaker 04: OK, well, do you have anything more to say? [00:20:32] Speaker 04: But can you do anything in terms of your client's case to reassure me that other than Trintini, I'm now talking about the underlying violation, the discharge of Gonzalez and Valenci. [00:20:48] Speaker 04: In fact, let me just put it to you this way. [00:20:50] Speaker 04: Other than Trincini, what's the single best piece of evidence you would point to that supports your argument that the board's finding that those were motivated by anti-union animus is not supported by substantial evidence? [00:21:02] Speaker 04: What would you point to? [00:21:03] Speaker 04: Give me one thing. [00:21:05] Speaker 01: That he lost his lease and that he was already going to close the business. [00:21:09] Speaker 04: It's got nothing to do with the underlying violation of terminating Gonzalez. [00:21:15] Speaker 04: So, okay. [00:21:16] Speaker 04: I have no further questions, Judge Anderson. [00:21:18] Speaker 03: All right. [00:21:19] Speaker 03: Thank you. [00:21:20] Speaker 03: We'll give you a couple of minutes in reply. [00:21:22] Speaker 03: Mr. Sauter. [00:21:27] Speaker 02: Good morning, Your Honors. [00:21:28] Speaker 02: May it please this honorable court, Greg Sauter for the National Labor Relations Board. [00:21:33] Speaker 02: The board's finding of facts [00:21:35] Speaker 02: demonstrate that the company was virulently opposed to its employees joining the union. [00:21:39] Speaker 02: Just the week before the events of this case, they threatened to fire three separate employees at Concrete Express and close that business altogether if they voted for the union. [00:21:51] Speaker 02: Significantly, when those events went to a hearing and the judge issued a decision finding those facts, the company did not challenge a single one of them. [00:22:03] Speaker 02: and that court has, that case has been enforced by the board. [00:22:06] Speaker 05: All right, Ken, let's move to, if I may, my colleagues will take you back. [00:22:14] Speaker 05: Let's assume that the record is, as Judge Tatel and your opposing counsel seem to be suggesting, there isn't a lot here to support the company's challenges to the, the findings of the underlying violations. [00:22:28] Speaker 05: Let's assume that's all correct, okay? [00:22:31] Speaker 05: The difficulty on your side, and that's why I was trying to get answers from the other side, so we could sort this case out. [00:22:38] Speaker 05: Difficulty for your side is you have a gistle bargaining order, you know, and giving you the benefit of the doubt seems like it's a plausible response to what the board was facing. [00:22:55] Speaker 05: That is, you now have a duty to bargain with the unit given these circumstances. [00:23:00] Speaker 05: and you have a restoration and you have some underlying questions about economic, whether or not the employer has a feasible operation. [00:23:13] Speaker 05: I honestly can't square the Gissell bargaining order with the restoration order in my mind. [00:23:22] Speaker 05: I don't get what the board is trying to do. [00:23:28] Speaker 05: In your mind, do you think the board is suggesting that there is a duty to bargain with respect to the effects of the closing of the operation? [00:23:38] Speaker 05: The board's not doubting that the operation was closed, right? [00:23:42] Speaker 05: No. [00:23:42] Speaker 05: Okay, and the board's not doubting that there is case law that says employers can close operations as they see fit, right? [00:23:49] Speaker 05: Of course. [00:23:49] Speaker 05: Okay, so then am I right in assuming that the most the board ought to be able to compel here is [00:23:58] Speaker 05: bargaining over the effects of the closing? [00:24:03] Speaker 02: I respectfully disagree, Your Honor. [00:24:05] Speaker 02: In this case, the board found that the closing of RAV was a violation under Darlington intended, was an act intended to chill the union activities that were ongoing at Concrete Express. [00:24:21] Speaker 02: And in those partial closing cases, the board's standard remedy is restoration. [00:24:27] Speaker 05: So that is separate from- Those cases routinely say so long as we have some assurance that the employer is in a position economically. [00:24:38] Speaker 05: Of course, of course, of course. [00:24:39] Speaker 05: So there's no finding there. [00:24:41] Speaker 05: And is that your claim is that, well, the burden's on them and they didn't make the showing? [00:24:46] Speaker 02: That's absolutely it. [00:24:48] Speaker 05: And not only that, Your Honor- Does the record show that the lease had run out? [00:24:53] Speaker 02: No, Your Honor, as we've shown in our brief, this was a month-to-month lease. [00:24:57] Speaker 02: And under New York law, a landlord cannot cancel a month-to-month lease without at least a 30-day notice. [00:25:05] Speaker 02: And there's no evidence of any 30-day notice in this case. [00:25:08] Speaker 02: In fact, I would point out, Your Honor, that as of the hearing in this case, Concrete Express had leased on the entire space of 3771 and 3773 Merit. [00:25:23] Speaker 02: We don't know how that lease transferred from REV to Concrete Express, but I have reasons to doubt that this was ever an issue. [00:25:32] Speaker 02: But certainly there was never any, there's no proof that notice was ever given. [00:25:38] Speaker 02: Whereas when they lost their lease at Edison, Trentini testified that he had been given oral notice that the landlord was terminating that lease. [00:25:47] Speaker 05: All right, so let me ask you this, let's assume [00:25:52] Speaker 05: I'm trying to figure out what does this restoration order mean? [00:25:56] Speaker 05: Let's assume that in the cases you're pointing to, I think pose different factual scenarios. [00:26:01] Speaker 05: Let's assume there's a restoration order and it's viable and the employer is told you have to open up again and you have to bargain. [00:26:13] Speaker 05: The employer's obligation as I understand it in the law is to say, can say under the law to the union [00:26:22] Speaker 05: I have to bargain with you. [00:26:23] Speaker 05: I'm bargaining. [00:26:24] Speaker 05: I want to let you know that I'm closing my business. [00:26:26] Speaker 05: I'm closing part of the business. [00:26:30] Speaker 05: And I'm happy to bargain over the effects. [00:26:33] Speaker 05: Isn't that, isn't that perfectly lawful? [00:26:36] Speaker 05: Let's assume all of what the board is. [00:26:38] Speaker 05: I don't know what the restoration mean. [00:26:40] Speaker 05: If they're in fact really closing down, you say the record doesn't really show it. [00:26:46] Speaker 05: There's certainly enough to suggest there's not much there. [00:26:49] Speaker 05: There wasn't much there to begin with in terms of employees. [00:26:52] Speaker 02: And that means that there isn't much to rebuild either, Your Honor. [00:27:00] Speaker 02: This is not a business where they have to... No, no, no. [00:27:03] Speaker 05: But the law doesn't work that way. [00:27:06] Speaker 05: Employers aren't, at least I don't think it does, employers aren't an obligation to stay in business. [00:27:12] Speaker 05: They don't want to stay in just because it would be easy to stay in. [00:27:16] Speaker 05: That's not the law. [00:27:17] Speaker 02: No, that's not the law, but they also can't close a business out of sheer. [00:27:22] Speaker 05: All right. [00:27:23] Speaker 05: All right. [00:27:23] Speaker 05: I gave you my hypothetical, so you should have had enough time by now to think about what your answer to it. [00:27:29] Speaker 05: The question I'm raising is, let's assume this restoration thing means something along with Gissell and the employer says, OK, come on and let's bargain. [00:27:37] Speaker 05: Let me tell you something. [00:27:38] Speaker 05: I'm closing the operation now. [00:27:40] Speaker 05: Why? [00:27:40] Speaker 05: Because I don't have any money. [00:27:42] Speaker 05: I'm not making any money here and I don't want to do it anymore. [00:27:46] Speaker 05: And I will. [00:27:47] Speaker 05: I will. [00:27:48] Speaker 05: My lawyer told me I have to bargain over the effects of this. [00:27:51] Speaker 05: I'm happy to bargain over the effects and say the union says we want to put them in cement. [00:27:58] Speaker 05: You say if there's any work there, I'm happy to consider them. [00:28:01] Speaker 05: I can tell you right now there's not much. [00:28:03] Speaker 05: Anything else you want to know on effects, I'm done. [00:28:06] Speaker 05: Isn't that lawful? [00:28:08] Speaker 05: I don't think so, Your Honor, because... Tell me what more the employer has to do. [00:28:12] Speaker 02: Well, if I'm assuming that under your hypothetical, this court has enforced the board's order. [00:28:17] Speaker 02: And in that case, the board's order requires the employer to reopen Concrete Express before it can decide to close it down. [00:28:25] Speaker 05: No, no, no. [00:28:27] Speaker 05: He's well-advised. [00:28:28] Speaker 05: Council says reopen it. [00:28:30] Speaker 05: It's not worth it. [00:28:30] Speaker 05: You don't want to spend more lawyers' fees with this. [00:28:32] Speaker 05: Just tell them it's reopened because the board told you to. [00:28:36] Speaker 05: Tell the union to come in. [00:28:38] Speaker 05: Let's bargain. [00:28:39] Speaker 05: They come in and say, [00:28:40] Speaker 05: We're reopened now. [00:28:41] Speaker 05: We're going to close. [00:28:43] Speaker 05: We have a right to close. [00:28:44] Speaker 05: We're going to close. [00:28:45] Speaker 05: However, my lawyer told me I have to bargain over the effects of the closing. [00:28:49] Speaker 05: I'm happy to bargain with you over it. [00:28:51] Speaker 05: What questions do you have? [00:28:52] Speaker 05: We're closing this place down. [00:28:55] Speaker 05: And I'm not saying it by virtue of having previously announced it. [00:28:59] Speaker 05: We're closing it down beginning tomorrow because I don't want to be in the business anymore. [00:29:05] Speaker 05: And I'm not making any money. [00:29:07] Speaker 05: And so there, what questions you have. [00:29:09] Speaker 05: And the question is, well, what about cement? [00:29:11] Speaker 05: Well, look and see if there's any work there. [00:29:13] Speaker 05: I'll certainly consider your people. [00:29:14] Speaker 05: But we're closed. [00:29:16] Speaker 05: Anything else you want to know on effects, that's all the employer has to do. [00:29:21] Speaker 02: Right? [00:29:23] Speaker 02: your employer your your honor may well be right i don't know no no i will no no finish it up just like no no i'm not trying to equivocate i'm just saying i don't know if there would be some kind of charge that the union could file at that point or if there is they could argue that the employer did not make [00:29:39] Speaker 05: you know, a no, no, no, no, just like I was trying to do with the other side. [00:29:43] Speaker 05: I mean, I had lots of hypotheticals on this. [00:29:45] Speaker 02: No, no, no, no. [00:29:45] Speaker 02: I understand. [00:29:46] Speaker 02: I understand. [00:29:47] Speaker 05: In that case, in that case, as I under the council sat him down. [00:29:52] Speaker 05: Right. [00:29:53] Speaker 05: Don't fool around. [00:29:54] Speaker 05: You have to be pleasant. [00:29:55] Speaker 05: You have to be respectful. [00:29:57] Speaker 05: You have to say, I have a duty to bargain and I am here to bargain. [00:30:01] Speaker 05: But you know what? [00:30:02] Speaker 05: That duty only involves effects of closing because I am closing. [00:30:07] Speaker 02: I think in that case, your honor is correct. [00:30:10] Speaker 02: They don't have to do anything more than that. [00:30:12] Speaker 02: However, I would point out, your honor, that they say that they were losing money. [00:30:17] Speaker 02: But as you've mentioned, that's absolutely not substantiated by the record. [00:30:23] Speaker 05: I also point out- You're going off track. [00:30:26] Speaker 05: Wait, no, no. [00:30:27] Speaker 05: I want to get you on this track to make sure you're not disagreeing with what I'm seeing in this case. [00:30:32] Speaker 05: It's a weird situation. [00:30:35] Speaker 05: It doesn't matter losing money or not, in my scenario. [00:30:41] Speaker 02: No, in your scenario it doesn't. [00:30:43] Speaker 05: Because they could come back in and say, a union can say, you claiming you losing money? [00:30:47] Speaker 05: No, I don't want to do this anymore. [00:30:50] Speaker 02: But your honor. [00:30:50] Speaker 02: I hate the business. [00:30:52] Speaker 02: But your honor, your scenario would apply, I think, in any restoration case of the board. [00:31:00] Speaker 05: Yeah, may. [00:31:01] Speaker 02: And so I'm not sure why. [00:31:03] Speaker 02: But that doesn't make it wrong. [00:31:03] Speaker 02: I'm not sure why. [00:31:05] Speaker 05: That's what I'm trying to understand. [00:31:06] Speaker 05: What does this restoration thing mean? [00:31:08] Speaker 05: The employer is forced to come back into business in this situation. [00:31:13] Speaker 05: Now, make it for your purposes, the worst situation. [00:31:16] Speaker 05: No, I'm not losing any money. [00:31:18] Speaker 05: I could make a ton of money, but you know what? [00:31:20] Speaker 05: I don't want to. [00:31:21] Speaker 05: Sure. [00:31:22] Speaker 05: I want to be in cement and I'm happy to bargain with you over the effects. [00:31:28] Speaker 05: then I'm done. [00:31:29] Speaker 05: And I'm going to do it honestly. [00:31:30] Speaker 05: I'm going to bargain any effects you raise with me, I'm going to discuss with you. [00:31:34] Speaker 05: But I'm going out of business. [00:31:37] Speaker 02: I understand, Your Honor. [00:31:38] Speaker 02: And I think I will assume that you are right that the employer could do this. [00:31:48] Speaker 02: I don't have a quarrel with that. [00:31:50] Speaker 02: But I think that your quarrel [00:31:53] Speaker 05: Wait a minute, let me finish it. [00:31:55] Speaker 02: I'm sorry. [00:31:55] Speaker 05: Easier case, right, if the employer really is strapped economically, right? [00:32:00] Speaker 02: Sure. [00:32:01] Speaker 05: It's an even easier case. [00:32:03] Speaker 02: Right, except that we have not only did they not show good evidence regarding our AV, we have absolutely zero evidence regarding [00:32:12] Speaker 02: the company's overall finances, Concrete Express, it's possible Concrete Express is making money hand over fist, and they could easily reopen RAV. [00:32:19] Speaker 02: We don't know. [00:32:20] Speaker 02: We have zero information about companies. [00:32:23] Speaker 05: When you say easily open RAV, you're talking about a different employer. [00:32:29] Speaker 05: I'm really trying to pin you down. [00:32:31] Speaker 05: Do you really mean to say that an employer can be told, even though you don't want to do it, you have to open RAV? [00:32:40] Speaker 05: Or is the restoration order nothing more than, no, you can't close it the way you did it. [00:32:45] Speaker 05: The way you did it was unseemly. [00:32:47] Speaker 05: So you have to open it again and maybe we'll be lucky and maybe you'll change your mind. [00:32:54] Speaker 05: So you have to go through the pretense of opening it again. [00:32:57] Speaker 05: But the employer can still say, but I'm closing it now. [00:33:00] Speaker 05: I'm going to bargain honestly with you over effect, but I'm done. [00:33:04] Speaker 02: Perhaps I missed the point of your question earlier. [00:33:07] Speaker 02: But there is no question that the board cannot force an employer to stay in business at Eternum just because they closed for unlawful purposes. [00:33:17] Speaker 02: No, I'm sorry if you ever. [00:33:22] Speaker 05: What difference does it make that the record shows that Samantha's making money hand over foot in my scenario? [00:33:30] Speaker 02: In your scenario, if they just want to get out, it makes no difference. [00:33:35] Speaker 02: Right, exactly. [00:33:36] Speaker 02: They can still do that. [00:33:37] Speaker 02: But I would suggest your honor that your call is with the board's restoration order with with the idea of the restoration remedy. [00:33:45] Speaker 02: And this court and others have held that that's a perfectly legitimate remedy. [00:33:50] Speaker 05: I think you're going to probably find and I wouldn't swear to it. [00:33:56] Speaker 05: But I suspect you'll find in those cases, it probably was a business that was maintainable and someone willing to maintain it. [00:34:04] Speaker 05: That just begs the question I'm trying to raise. [00:34:06] Speaker 05: In this situation where the employer is saying, probably with some force, I'm not making anything. [00:34:13] Speaker 05: It's small, it's insignificant, and I'm done. [00:34:16] Speaker 05: Whereas in some of these other cases, that was not really what was going on. [00:34:20] Speaker 05: But in any event, it doesn't matter. [00:34:23] Speaker 05: Even in the cases you're pointing me to, [00:34:26] Speaker 05: they didn't address the question I'm raising. [00:34:29] Speaker 05: And I want to make sure I understand what's here, because those cases could end the same way. [00:34:34] Speaker 05: Those employers could also say, okay, let's bargain effects and we're done. [00:34:38] Speaker 05: Sure. [00:34:38] Speaker 02: Yes, absolutely. [00:34:40] Speaker 02: But I would also add, Your Honor, that's the reason we have a compliance proceeding. [00:34:46] Speaker 02: At that compliance proceeding, the employer can show really, it has basically gets a second bite at the apple to show that financially it's an undue burden to reopen our AV. [00:34:57] Speaker 05: Yeah, but there's an easier way to do it. [00:34:58] Speaker 05: Don't go to compliance. [00:35:00] Speaker 05: It's more lawyers fees. [00:35:01] Speaker 05: Just say, come on, my lawyer told me, come on, let's bargain. [00:35:04] Speaker 05: Incidentally, here's our proposal. [00:35:06] Speaker 05: We're going out of business. [00:35:08] Speaker 05: Why? [00:35:08] Speaker 05: Because we don't want to be in business anymore. [00:35:10] Speaker 05: We don't need to go to compliance. [00:35:11] Speaker 05: We're not even going to argue about economics. [00:35:13] Speaker 05: We're done. [00:35:14] Speaker 02: If the company wants to go through the hoops of resetting up REV and then saying, we don't want to do it. [00:35:20] Speaker 05: No, no, no, no, no, no, no. [00:35:21] Speaker 05: What do you mean resetting up? [00:35:23] Speaker 05: Well, that's part of the board's order, right? [00:35:26] Speaker 05: What does that mean, to bring in desks and lights? [00:35:28] Speaker 02: No, there were no desks and lights. [00:35:30] Speaker 05: There was just a room. [00:35:31] Speaker 05: But I don't know. [00:35:32] Speaker 05: See, this is exactly what's driving me crazy about this. [00:35:34] Speaker 05: What do you mean, reset up? [00:35:37] Speaker 02: Lease the space. [00:35:38] Speaker 05: Lease the space. [00:35:40] Speaker 05: No, no. [00:35:41] Speaker 05: The board order means they've got to go release space. [00:35:45] Speaker 02: Yes, they are supposed to re-open R.A.V. [00:35:50] Speaker 02: as it existed on the date of the unfair labor practice, May 14th. [00:35:55] Speaker 05: That includes I've got to go now lease some spaces that I'm about to tell you I'm not going to use because I don't want to be in business anymore. [00:36:02] Speaker 05: That's why I'm not understanding the Giselin restoration. [00:36:05] Speaker 05: That can't be what the board's order is. [00:36:07] Speaker 05: I have to go lease space even though as a matter of law I can tell you one day after [00:36:13] Speaker 05: I don't want to be in business and that's lawful. [00:36:16] Speaker 05: But I have to go leave space. [00:36:18] Speaker 02: Your honor, that's that is what the restoration order that this court has enforced in. [00:36:23] Speaker 05: I think you'd have to send me if you want to do after argument submission to show me that that's what was happening in a situation where the employer did not want to remain in business. [00:36:37] Speaker 02: And I don't know, Your Honor, about not wanting to remain in business. [00:36:42] Speaker 05: Well, that's what I'm talking about. [00:36:44] Speaker 02: We don't know if that's the case here. [00:36:46] Speaker 02: And I don't know that in other cases, the board considers as a factor the employer's interest in remaining in business. [00:36:56] Speaker 02: What the board looks at is whether they close the business with anti-union animus in order to chill [00:37:05] Speaker 02: the other employees at another entity from engaging in section seven protected conduct. [00:37:13] Speaker 02: If after the board's ruling as enforced by this court, the employer decides that it doesn't want to stay in business, that wouldn't be part of the record as decided by the board. [00:37:27] Speaker 02: That can happen after the fact. [00:37:29] Speaker 02: So I know that I can find you a case in which the employer says, [00:37:34] Speaker 02: but I don't want to start over. [00:37:36] Speaker 02: Don't make me start over. [00:37:37] Speaker 02: I really don't want to do it. [00:37:39] Speaker 02: What I can find you is a case that says you have to reopen your business as it existed at the time. [00:37:45] Speaker 02: In fact, that's what the order in this case says. [00:37:49] Speaker 02: All right. [00:37:51] Speaker 05: Okay. [00:37:51] Speaker 05: I have my answers from you. [00:37:53] Speaker 05: I have answers from both of you in this very strange case. [00:37:56] Speaker 05: All right. [00:37:56] Speaker 05: Judge Tate, I just have a question. [00:37:58] Speaker 04: Yeah, I just have one question. [00:38:00] Speaker 04: I want to try to get at this. [00:38:04] Speaker 04: at what Judge Edwards is asking of us in a slightly different way. [00:38:08] Speaker 04: So the ALJ said that the findings regarding, or the violation regarding the closing of the business and the firing of Gonzalez were, he called them alternative remedies, right? [00:38:25] Speaker 04: I mean, alternative findings. [00:38:28] Speaker 02: And you, the board repeats that and- Oh, with regard, I'm sorry, with regard to Gonzalez specifically? [00:38:34] Speaker 02: Yes. [00:38:35] Speaker 04: Yeah, Gonzalez and the closing, they're alternatives. [00:38:37] Speaker 04: So when I see that in a brief, what I think is, okay, our court, we need to decide, we don't have to decide both of those. [00:38:46] Speaker 04: We can deny the petition. [00:38:48] Speaker 04: If one of them, if we find, for example, with the Gonzalez, [00:38:51] Speaker 04: that the finding that Gonzalez was fired for union activities is supported by substantial evidence, then we can deny the petition. [00:39:01] Speaker 04: We don't have to go on and decide address the other violation of closing. [00:39:07] Speaker 04: Is that correct? [00:39:09] Speaker 02: No, Your Honor, if I understand your question. [00:39:12] Speaker 02: It's not? [00:39:13] Speaker 02: Where the board said that about them being alternative findings was only specifically with regards to [00:39:21] Speaker 02: Gonzalez's termination. [00:39:23] Speaker 02: And if you'll let me explain, the board made one finding that under Darlington, the company unlawfully closed REV for the reasons that I was discussing. [00:39:34] Speaker 04: I'm sorry, could you, you just broke up, I have a slight internet problem here. [00:39:39] Speaker 04: Could you start after you said, let me explain. [00:39:42] Speaker 04: Sure. [00:39:44] Speaker 04: Okay, go ahead. [00:39:44] Speaker 02: That's a good place to start. [00:39:47] Speaker 02: So the board made one finding [00:39:49] Speaker 02: which was the one I was discussing with Judge Edwards, that the company violated the act by closing RAV with the intent of chilling union activity at Concrete Express. [00:40:01] Speaker 02: That's one finding. [00:40:03] Speaker 02: The board also made a finding that Gonzalez was unlawfully discharged. [00:40:09] Speaker 02: And what the board said is that there are two ways to find that Gonzalez was unlawfully discharged. [00:40:16] Speaker 02: One is, [00:40:18] Speaker 02: Because we found that RAV was unlawfully closed, it follows that Gonzalez's discharge as a result of the unlawful closure is unlawful itself. [00:40:30] Speaker 02: Alternatively, we can find, say the Court of Appeals finds that RAV was not unlawfully closed, we can still find under right line that Gonzalez was unlawfully fired for engaging in union activity. [00:40:48] Speaker 02: Does that make sense? [00:40:53] Speaker 04: So you're saying that we do have to decide both issues. [00:40:57] Speaker 02: Yes, in short, that's what I'm saying. [00:41:00] Speaker 02: But I'd like to be sure. [00:41:02] Speaker 04: Where would I find that explanation? [00:41:05] Speaker 04: I mean, OK, I get what you're saying. [00:41:07] Speaker 04: Did I miss something in the briefs? [00:41:09] Speaker 02: Was that in the briefs? [00:41:11] Speaker 02: Perhaps the briefs were not written as artfully as they should have been. [00:41:18] Speaker 02: The place in the decision where I would direct you is on page 11. [00:41:31] Speaker 02: It says, REV closure and discharge of Victor Gonzalez. [00:41:35] Speaker 02: And that's where the judge says, on one hand, I can find [00:41:47] Speaker 02: I found already that, or no, he's going to find later on. [00:41:52] Speaker 02: But on one hand, I can find that Gonzalez was fired strictly for engaging in unit activity under right line. [00:42:00] Speaker 02: But I can also find that he was fired unlawfully as collateral damage, if you will, from the unlawful closure of REV. [00:42:08] Speaker 02: So that is at page 11 in the board's decision. [00:42:14] Speaker 02: I'm happy if you want to come back to me after. [00:42:17] Speaker 04: I'm sorry. [00:42:20] Speaker 04: That's enough. [00:42:20] Speaker 04: Thank you. [00:42:21] Speaker 04: I get your point. [00:42:22] Speaker 04: I take your point. [00:42:23] Speaker 05: Sure. [00:42:23] Speaker 05: Thank you. [00:42:24] Speaker 05: Karen, Judge Henderson, one last question. [00:42:27] Speaker 05: Suppose the record shows as we proceed forward, it now shows, I don't care what it did show in the hearing before the board, that this operation [00:42:42] Speaker 05: doesn't exist as a business entity any longer. [00:42:47] Speaker 05: It doesn't have the required license. [00:42:52] Speaker 05: It doesn't have the lease space. [00:42:56] Speaker 05: It's not authorized by the state to do whatever it is they used to do. [00:43:00] Speaker 02: Are you saying today or at a compliance hearing? [00:43:04] Speaker 05: Today meaning post board hearing, you know, now compliance. [00:43:09] Speaker 05: I mean, it can get to a compliance, but let's assume [00:43:12] Speaker 05: That's the situation. [00:43:15] Speaker 05: They don't have a license to do this work anymore. [00:43:18] Speaker 05: They don't have a lease space anymore. [00:43:22] Speaker 05: They have a gistful bargaining order. [00:43:24] Speaker 05: That's understandable. [00:43:25] Speaker 05: And you can bargain over effects. [00:43:27] Speaker 05: That would make sense to me, the effects of the closing. [00:43:30] Speaker 05: But in terms of restoration, what are you talking about? [00:43:32] Speaker 05: They say, we don't have a license. [00:43:34] Speaker 02: You mean we have- The license is building specific. [00:43:39] Speaker 02: It doesn't go with the business. [00:43:41] Speaker 02: At Edison, the building had a license. [00:43:44] Speaker 05: But in the state, you have to have a license to do the kind of work you're doing no matter where the lease space is. [00:43:50] Speaker 02: No, you need the lease. [00:43:52] Speaker 02: That is not my understanding. [00:43:53] Speaker 02: My understanding is that the space has to have registration. [00:43:57] Speaker 05: That seems really strange to me, that you can be in a business to do something merely because you have a building and claim to be doing something, but you don't otherwise have a license to do what it is you want to do. [00:44:08] Speaker 05: That makes no sense. [00:44:10] Speaker 02: That was my understanding from reading, frankly, the company's pleading. [00:44:14] Speaker 05: Well, let me ask counsel about that because that sure makes no sense. [00:44:17] Speaker 05: I can do whatever I want as long as I have a building. [00:44:20] Speaker 05: I don't think so. [00:44:22] Speaker 05: That can't be. [00:44:24] Speaker 05: And so assume I'm right. [00:44:26] Speaker 05: My own thing is right. [00:44:28] Speaker 05: They don't have a license if it's required, and maybe it's not required. [00:44:33] Speaker 05: They don't have a license. [00:44:34] Speaker 05: They don't have a lease. [00:44:36] Speaker 05: and forget what they prefer to do. [00:44:37] Speaker 05: But that's the way they stand. [00:44:39] Speaker 05: And now what? [00:44:40] Speaker 05: They got a gistle bargaining order. [00:44:41] Speaker 05: So yeah, maybe they have to bargain about something. [00:44:43] Speaker 05: But now what's your argument with respect to restoration? [00:44:46] Speaker 05: I want to make sure I understand this. [00:44:50] Speaker 02: I understand. [00:44:51] Speaker 02: My argument, Your Honor, is that unless it poses an undue burden, meaning that they cannot afford to do it, or if it would endanger the health of the remaining business, they must [00:45:04] Speaker 02: They must lease a new building with the proper registration and they must rehire the two employees that they hired. [00:45:13] Speaker 05: And they must go get the necessary license. [00:45:16] Speaker 02: Exactly. [00:45:17] Speaker 05: They've got to recreate themselves. [00:45:20] Speaker 02: Not themselves. [00:45:23] Speaker 02: Just the one part of their business. [00:45:25] Speaker 05: They've got to recreate a business entity. [00:45:29] Speaker 05: Right. [00:45:30] Speaker 05: All right, and now is there some case law and I'm happy to look at it that says you have to recreate a business entity that does not really exist on the date when you'll now be required to do it. [00:45:45] Speaker 05: I'm not talking about can you find cases where the board said to the company, you have to get this operation up to speed again. [00:45:54] Speaker 05: I'm talking about a situation where [00:45:56] Speaker 05: not only the building's gone, the lease is gone, the license is gone, and the board has said, notwithstanding all of that, you have to recreate it, go find a lease, go find a license, and make yourself a real operation again. [00:46:12] Speaker 05: And then, oh, incidentally, as you and I have just spent a half an hour talking about, incidentally, then you have the right to bargain and say, we're not gonna stay like this. [00:46:21] Speaker 05: So you'll cancel all of what you just did in one day. [00:46:24] Speaker 05: Show me the case. [00:46:26] Speaker 02: Okay. [00:46:26] Speaker 02: I will file something with the court, I hope by the end of today, if not tomorrow. [00:46:31] Speaker 05: Now, don't give me the ones you've been giving me. [00:46:33] Speaker 05: I understand all of them. [00:46:34] Speaker 05: I want one that they're not news to me. [00:46:37] Speaker 05: I want one where it's not there anymore and the board says, no, no, go create it. [00:46:43] Speaker 05: Very good. [00:46:44] Speaker 05: Okay. [00:46:45] Speaker 03: All right. [00:46:45] Speaker 03: Judge Edwards, are you finished? [00:46:47] Speaker 05: I am, Judge Anderson. [00:46:49] Speaker 05: Thank you. [00:46:49] Speaker 03: Judge Tatel, are you finished? [00:46:51] Speaker 05: Yes. [00:46:53] Speaker 03: All right. [00:46:54] Speaker 03: Mr. Tulinship will give you two minutes in response. [00:46:59] Speaker 05: Can you answer the question first just so I have this information before I forget? [00:47:03] Speaker 05: Yes. [00:47:06] Speaker 05: Is there a license that's required? [00:47:08] Speaker 01: My understanding is RAV was registered as a repair shop, so registered [00:47:15] Speaker 01: My understanding is registered would be quote unquote a license. [00:47:18] Speaker 01: But in order to be registered in order to participate in that business, the building that you're in has to have certain requirements. [00:47:32] Speaker 01: under New York law as to what is required in order to perform repairs on trucks, cars, and again, some automatic sprinklers, some fire alarms, some standpipes, oil and water separators so that when things go in the drain, you're not getting oil and grease that are going in the city's sewer system. [00:47:53] Speaker ?: Right. [00:47:53] Speaker 01: So that is my understanding of the motor vehicle repair shop. [00:47:57] Speaker 01: So when I'm registered, yes, that is my license, but you also have to have an actual building that meets all of the specifications. [00:48:08] Speaker 01: And then just one point I wanted to bring up. [00:48:12] Speaker 01: It's not enough under Darlington to show that [00:48:16] Speaker 01: closing RAV would have the foreseeable consequence of possible union chilling at the other location. [00:48:25] Speaker 01: The general counsel has to show that the motivation behind closing RAV was to chill unionism at Concrete Express. [00:48:34] Speaker 01: When he closed RAV, Concrete Express had already had its election. [00:48:39] Speaker 01: all the quote unquote unfair labor practices that he mentioned had already happened at Concrete Express. [00:48:47] Speaker 01: If he wanted to chill unionism at Concrete Express, he could have closed down Raab right before the election and he did not. [00:48:58] Speaker 05: No, that argument is not a winning argument because there's so many cases that will show you [00:49:03] Speaker 05: that you can have the chilling effect. [00:49:05] Speaker 05: It doesn't matter when you're saying to these related employees, if you push us in collective bargaining or anything else, we'll close you down too. [00:49:14] Speaker 05: That's what the board cases say. [00:49:16] Speaker 05: We'll take you out. [00:49:17] Speaker 05: That's our threat. [00:49:20] Speaker 05: And we'll do it at any time. [00:49:22] Speaker 05: We're so angry about this. [00:49:24] Speaker 05: And if you keep pushing us in collective bargaining and you keep pushing us with a union, we'll close you. [00:49:31] Speaker 05: That's all they need. [00:49:32] Speaker 05: I'm more troubled to try and understand what this restoration means. [00:49:37] Speaker 05: But, okay. [00:49:39] Speaker 05: I don't have anything more, Judge Henderson. [00:49:41] Speaker 05: Thank you for the time. [00:49:43] Speaker 03: All right. [00:49:46] Speaker 03: Council, are you finished with your reply? [00:49:50] Speaker 01: Yes, Your Honor. [00:49:51] Speaker 03: All right. [00:49:51] Speaker 03: Well, then let's do this. [00:49:53] Speaker 03: Mr. Soder, you have until noon tomorrow to file [00:49:59] Speaker 03: what you want to file as far as authority. [00:50:02] Speaker 03: And Mr. Tuland-Sick, you have until noon on Friday to file anything in reply. [00:50:10] Speaker 01: OK, thank you, Your Honor. [00:50:11] Speaker 05: And Mr. Sotta, I would respectfully request, please don't give me the cases that you know I understand. [00:50:18] Speaker 05: I'm giving you a precise kind of scenario of a reconstruction [00:50:23] Speaker 05: where it doesn't exist. [00:50:25] Speaker 05: And everyone understands with a gistle bargaining order in hand, that employer still can be made to bargain about effects. [00:50:35] Speaker 05: And you're telling me, I want to see a case where the board says, notwithstanding, they got the gistle bargaining order, they still can be forced to bargain about effects. [00:50:44] Speaker 05: But we're going to make them recreate themselves, get the license, go get a lease, get a building, even though the next day we all agree they can walk out. [00:50:56] Speaker 03: All right, anything further? [00:50:59] Speaker 03: Madam Clerk, would you give us an adjournment?