[00:00:01] Speaker 01: Case number 20-1076 Edel, St. [00:00:04] Speaker 01: James Medical Group Petitioner versus National Labor Relations Board. [00:00:09] Speaker 01: Mr. Potter for the petitioner, Ms. [00:00:10] Speaker 01: Chih-hee for the respondent. [00:00:13] Speaker 00: Morning, Council. [00:00:14] Speaker 00: Mr. Potter, please proceed when you're ready. [00:00:16] Speaker 05: Thank you. [00:00:17] Speaker 05: Excuse me. [00:00:20] Speaker 05: Yes, my name is Terry Potter, as noted, counsel for the petitioner in this matter. [00:00:25] Speaker 05: And as you know from the briefing, this concerns a petition for review of an NLRB determination. [00:00:31] Speaker 05: In particular, this case arises out of an organizing campaign of my client's facility medical clinic in Butte, Montana. [00:00:42] Speaker 05: in which the Montana Nurses Association organized a group of RNs into a bargaining unit. [00:00:56] Speaker 05: During the preliminary proceedings in this case before the board, we took the position, the employer, that the [00:01:07] Speaker 05: proposed unit was inappropriate, that we had other professionals working in the clinic who should be included in that unit. [00:01:16] Speaker 05: And therefore, we litigated that in a hearing. [00:01:19] Speaker 05: The regional director disagreed with us, certified a unit of RNs only, went to an election. [00:01:27] Speaker 05: the union won the election, you know, and therefore we have through various procedures, as you know, contested it further and by testing the certification. [00:01:40] Speaker 05: And so here we are. [00:01:41] Speaker 05: And the main basis for our dispute and this decision by the board is the fact that it's not following its own guidelines. [00:01:50] Speaker 05: As you recall, for many years, [00:01:53] Speaker 05: specialty health care was the standard in determining bargaining units before the NLRB. [00:02:01] Speaker 05: That case was overturned by a case called PCC Structural in 2017. [00:02:08] Speaker 05: And it changed the standard in many ways. [00:02:12] Speaker 05: And in particular, what it requires of the board now in making its determinations on these unit issues [00:02:22] Speaker 05: is that they do a much more robust analysis of the distinctions between those individuals included in the bargaining unit and those excluded. [00:02:34] Speaker 05: And our complaint here is that they didn't do that robust analysis in particular. [00:02:42] Speaker 05: So it was there. [00:02:44] Speaker 02: Can I ask you how, in analyzing that argument, that the board didn't [00:02:52] Speaker 02: sufficiently hue to the standard of explanation. [00:02:56] Speaker 02: We don't review that. [00:02:59] Speaker 02: Do we review that de novo? [00:03:00] Speaker 02: Do we just sort of look at it and say, is this a sufficient explanation, or do we simply ask whether the board's conclusion that this was a sufficient explanation is required by its president? [00:03:11] Speaker 02: Because it acknowledges president. [00:03:13] Speaker 02: It didn't ignore or apply the wrong thing. [00:03:18] Speaker 02: Do we ask only whether it was arbitrary and capricious or in reason for them to think, to conclude on this record that they had explained to the same degree as their precedent requires? [00:03:30] Speaker 05: I think the standard is arbitrary and capricious because they're not following your own standards. [00:03:35] Speaker 02: Right. [00:03:35] Speaker 02: So we don't go and so it's not sort of, well, it doesn't look quite enough to us. [00:03:39] Speaker 02: It would have to be so clearly off the mark from prior precedent that we would call it arbitrary and capricious. [00:03:45] Speaker 02: Right. [00:03:45] Speaker 02: OK. [00:03:46] Speaker 05: So, so again, the dilemma is on this new standard. [00:03:50] Speaker 05: And again, this is, you know, two years after PCC had issued and there have been all sorts of guidance issued internally with the board. [00:04:02] Speaker 05: They just didn't do their, they didn't do their job. [00:04:04] Speaker 05: They did what the Boeing case, which clarified PCC standards and came back, came down in 2019, said you shouldn't do. [00:04:14] Speaker 05: All they did was have a checklist of the various characteristics of those in the bargaining unit, those outside the bargaining unit, and then come to conclusionary statements regarding who's gonna be in and who's gonna be out. [00:04:29] Speaker 05: Instead of saying, look, [00:04:31] Speaker 05: You know, this issue is important in terms of a distinction between the two groups. [00:04:37] Speaker 05: And it's important in this context for these reasons. [00:04:41] Speaker 05: They didn't do that. [00:04:43] Speaker 05: They went to the old format, which frankly, when I worked for the board, I was as guilty as anybody, where, yeah, you submitted the laundry list of distinctions that were set out in the record, and then you come to a final conclusion as to who's in and out. [00:04:59] Speaker 05: without expressing why one set of distinctions or similarities, again, weighing, the cases say you have to weigh the similarities and the disparities. [00:05:11] Speaker 05: There's no weighing here and there's no analysis. [00:05:14] Speaker 05: And that's our number one concern in this case is that they simply did not do that. [00:05:23] Speaker 05: And it's a very summary analysis. [00:05:25] Speaker 05: They harp on quite a bit in the decision about the fact that the nurses have specialized training distinct from the other professionals. [00:05:37] Speaker 05: Well, the problem with that sentence is that the very definition of a professional employee under the NLRA is someone having specialized training. [00:05:46] Speaker 05: Everybody who's a professional has specialized training. [00:05:48] Speaker 05: So that doesn't add value to the analysis. [00:05:51] Speaker 02: Well, but nobody, if they didn't say that it was because they had specialized training, it was because they had different specialized training. [00:05:58] Speaker 02: There were differences in their specialized training that gave them different roles in the medical care process. [00:06:05] Speaker 02: I don't think we'd be able to say it was arbitrary because they just said they were specialized. [00:06:10] Speaker 05: Well, I know. [00:06:11] Speaker 05: But there's a cumulative effect. [00:06:14] Speaker 05: And the fact that, again, the decision itself talks about specialized training [00:06:20] Speaker 05: in particular for the nurses and their unique licensing being the distinctions here. [00:06:26] Speaker 05: But again, I will tell you, it doesn't say different specialized training, it says specialized training. [00:06:32] Speaker 02: But it talked about how there's further training for the people who are the- Oh, I agree, I agree. [00:06:40] Speaker 02: That's what they, you don't think that's what they're referring to? [00:06:42] Speaker 05: Well, the thing is, again, it's the problem is it's not elaborated upon. [00:06:47] Speaker 02: Is it not self-evident that the nurse's specialized training is different than the social worker's specialized training? [00:06:54] Speaker 05: Yeah, I think so, but why does that make a difference? [00:06:57] Speaker 05: That's what PCC says you have to do. [00:07:00] Speaker 05: You have to say, okay, there's different specialized training. [00:07:04] Speaker 05: Why does that make a difference for including or excluding those folks in the bargaining unit? [00:07:09] Speaker 05: That's the key. [00:07:10] Speaker 05: And once you get that concept in your head, you understand why this analysis and the decision doesn't work. [00:07:19] Speaker 05: They don't apply the standards that they have set forth in PCC and bowling. [00:07:25] Speaker 05: And again, if you look at the Boeing case in particular, over and over again, it says, you know, you can't do these, these laundry list of distinctions and stop there. [00:07:37] Speaker 02: Point to me in the Boeing case which of course hadn't yet been decided at the relevant time here. [00:07:42] Speaker 02: Pointing to it, it does this step two analysis on pages five and six. [00:07:49] Speaker 02: So can you point to me sort of the best example on pages five to six of where they did the type of analysis? [00:07:58] Speaker 02: They didn't just say, you know, this is different from that, but that difference matters because. [00:08:05] Speaker 02: Would you be able to point to me just so I have a better sense? [00:08:07] Speaker 02: I think it'll make it more concrete for me if I have a better sense. [00:08:14] Speaker 05: You know, frankly, I have not looked at that for so long. [00:08:17] Speaker 05: It'd be hard for me to do that quickly. [00:08:19] Speaker 02: OK. [00:08:19] Speaker 02: Well, maybe on rebuttal, you could point out on page five or six where they do their analysis there, the sort of the sentences that do the, this is different because this matters for collective bargaining because it's that type of because sentence that I took to be your emphasis here, that that's what's missing in this case. [00:08:36] Speaker 02: And so it would be helpful to me, at least. [00:08:40] Speaker 05: Sure. [00:08:40] Speaker 05: No problem. [00:08:42] Speaker 03: Any other questions? [00:08:45] Speaker 03: Does it matter that PCC structurals, the board's decision has been argued before our court in November? [00:08:54] Speaker 03: Did you know that? [00:08:55] Speaker 04: I did not know that. [00:08:57] Speaker 03: It's pending decision. [00:09:02] Speaker 02: OK. [00:09:03] Speaker 02: Can I ask you, I have one other question if it's OK. [00:09:07] Speaker 02: You make an argument about a risk of residual units here. [00:09:12] Speaker 02: the people, the advanced practice practitioners to use the sort of global term you use for the people that weren't included. [00:09:19] Speaker 02: I think they're about the same in number as the nurses here. [00:09:25] Speaker 02: Right. [00:09:26] Speaker 02: So why is there a risk of residual unit? [00:09:28] Speaker 02: Why couldn't they just do their own unit? [00:09:30] Speaker 05: They could, but then you get into issues like, you know, again, the policy about undue proliferation. [00:09:37] Speaker 02: That's a different, right. [00:09:39] Speaker 02: So I'm asking you what your evidence in the record is [00:09:42] Speaker 02: of residual units, some people who are left over who won't be able to form. [00:09:46] Speaker 02: That's what I wasn't clear about. [00:09:47] Speaker 05: Well, I think, yeah, I mean, again. [00:09:48] Speaker 02: Otherwise, they just flip sides at the same point. [00:09:50] Speaker 05: I mean, residual units, there's a lot of factors that come into play regarding it doesn't work well, having that end product, especially when you have other professionals. [00:10:02] Speaker 05: I mean, why wouldn't you have it all? [00:10:04] Speaker 02: Normally, you'd have it all. [00:10:05] Speaker 02: I'm just asking evidence in the record here that there was going to be a risk of residual [00:10:11] Speaker 02: units because, for example, the advanced practice practitioners couldn't form their own units because of all the commonalities that you noted, and their size is sufficient. [00:10:21] Speaker 05: Right. [00:10:22] Speaker 05: I mean, but that would be five employees. [00:10:25] Speaker 05: Normally, unions don't go out and organize five employees. [00:10:29] Speaker 05: It just doesn't happen. [00:10:30] Speaker 05: So they're probably not going to be part of any bargaining unit. [00:10:34] Speaker 05: That's one factor. [00:10:36] Speaker 05: If they do become a part of a separate union, then again, you've got the proliferation argument where you're having all these bargaining units that may result in disputes and one union honoring picket lines of other unions. [00:10:54] Speaker 05: And then, you know, you've just got all this patient interruption coming into play. [00:10:58] Speaker 05: You know, and again, the proliferation issue and the decision, the regional director refers to the rule, the healthcare rule for acute care facilities that RNs are an appropriate separate unit, but that's only for acute care hospitals. [00:11:19] Speaker 05: It's not for non-acute. [00:11:21] Speaker 05: That's what we're doing with here as a medical center, a medical clinic. [00:11:27] Speaker 00: Thank you. [00:11:27] Speaker 00: If my colleagues don't have any further questions for you, Mr. Potter, we'll hear from the board, and then we'll give you rebuttal time. [00:11:33] Speaker 00: Sounds good. [00:11:33] Speaker 00: Sheehy. [00:11:36] Speaker 01: Good morning, Your Honors. [00:11:37] Speaker 01: Barbara Sheehy for the National Labor Relations Board. [00:11:41] Speaker 01: I think I just want to start with just backing up. [00:11:43] Speaker 01: And we put this in our brief, but I really think it warrants highlighting that. [00:11:48] Speaker 01: And I'm sure the court is aware of this. [00:11:49] Speaker 01: Again, I'm just going to highlight it. [00:11:52] Speaker 01: The decision here is that the RNs were an appropriate unit. [00:11:57] Speaker 01: And I think sometimes lost in this discussion is, could there have been a better unit or could these people be in the unit? [00:12:02] Speaker 01: But I think the focus, I just want to make sure all the time, even if I misspeak all the time, that the focus is on that the board made a determination that's uniquely within its province, right? [00:12:12] Speaker 01: I mean, this is a uniquely board determination that the nurses in this non-acute care facility were an appropriate unit. [00:12:21] Speaker 01: So I wanted to start there. [00:12:22] Speaker 01: As I said, I'm sure the court is well aware of that. [00:12:23] Speaker 01: And we put that in our brief. [00:12:24] Speaker 01: But I do think that the entire case has to be viewed through that prism, I think. [00:12:31] Speaker 01: And beyond what we put in our brief, unless the court has other questions, I feel like I would just be reiterating what we put in our brief. [00:12:41] Speaker 01: checklist. [00:12:43] Speaker 01: The board walked through the distinct interests. [00:12:45] Speaker 01: I think it's also being forgotten a little bit in the briefing that the board is not writing on a clean slate. [00:12:50] Speaker 01: This regional director was not starting from scratch. [00:12:54] Speaker 01: We go back 35 years for the healthcare rule, two years worth of data codified in that. [00:13:00] Speaker 01: And then beyond that, there's the 30 years after that of precedent. [00:13:04] Speaker 01: So beyond, like I said, repeating what's in our brief, unless the court has specific questions for me. [00:13:10] Speaker 02: What's your response to their argument about Boeing? [00:13:13] Speaker 01: I think we responded in our brief that our response in Boeing is that, and I think your honor is right. [00:13:21] Speaker 01: I unfortunately, I just tried to pull up Boeing, but I'm having internet issues at my house. [00:13:25] Speaker 01: So I'm gonna have to go just on memory, but it's not my recollection in Boeing that the board goes through and lists all the factors and says, this is important because, this is important because, this difference is important because, rather than do that, because I don't, [00:13:40] Speaker 01: Again, it's my recollection. [00:13:42] Speaker 01: So if I'm wrong, I'll stand corrected on Boeing. [00:13:44] Speaker 01: But I don't think that the board in Boeing did anything different than what the board did here, except in an analytical sense, certainly in a written sense, they did. [00:13:55] Speaker 01: The board here leaned heavily into precedent and relying on cases that frankly set forth what all these differences are, why these are not, sorry, that these interests are distinct [00:14:07] Speaker 01: and that that satisfies then the second prong of the community interest standard, that they are sufficiently distinct from the other people trying to be included in the unit, the excluded employees. [00:14:17] Speaker 01: So I think really the only difference here between Boeing in the analytical sense, between Boeing and what the board did here is they, again, not riding on a clean slate, they just leaned into precedent and cited the most on point five cases. [00:14:32] Speaker 01: And frankly, I'm unaware of any case [00:14:35] Speaker 01: that is more that I'm not aware of any case beyond the five that the board sites that are more on point. [00:14:43] Speaker 01: Certainly the employer, when it filed its request for review, when it filed its post hearing brief, they cited cases, they're predominantly the same cases that are cited to the court and they are frankly not applicable. [00:14:56] Speaker 01: So the board, I think, did exactly the same as it did in Boeing as I think it did the same in both cases to answer your honor's question. [00:15:05] Speaker 01: Thank you. [00:15:07] Speaker 00: Can I ask you from the board's perspective, what is the relevance of the pendency of the PCC case that Judge Randolph raised? [00:15:16] Speaker 00: And in particular, is the underlying framework in PCC just from your perspective at issue in that case, or is just the application of the framework to the facts of that case? [00:15:25] Speaker 01: Ooh, I'm not familiar with what specifically went up on appeal. [00:15:30] Speaker 01: So I'm familiar with the cases pending. [00:15:32] Speaker 01: I know that there's been argument, but I didn't read the briefs in the case and it wasn't my case. [00:15:38] Speaker 01: So I'm gonna hedge a little on the answer to say, if the framework is at issue, if the court is being asked to review whether the board properly reverted to its pre specialty healthcare standard. [00:15:52] Speaker 01: So if the standard is in play, [00:15:55] Speaker 01: and the court for some reason does something in PCC structurals that calls into question the board reverting to a pre-specialty healthcare standard, then I think since the board here applied PCC structurals and its mandate to go pre-specialty healthcare, I think that we would have to ask for a remand [00:16:18] Speaker 01: at that point, because there's a new framework. [00:16:21] Speaker 01: If that's not what the issue in PCC Structural, if the standard is going to be, it's not, like I said, I'm not familiar with what exactly is in play there. [00:16:28] Speaker 01: But if PCC Structural does nothing, if the court does nothing in that case, or doesn't have the opportunity, because it wasn't briefed that way, to do anything with the standard, then this case just goes forward as it's been briefed. [00:16:44] Speaker 00: Let me see if my colleagues have further questions for you, Michie. [00:16:48] Speaker 00: Hearing none, unless you have anything further, we'll give Mr. Potter his rebuttal time. [00:16:53] Speaker 01: I don't, thank you very much. [00:16:54] Speaker 00: Thank you, Mashi. [00:16:55] Speaker 00: Mr. Potter, we'll give you two minutes for your rebuttal. [00:17:00] Speaker 05: Thank you. [00:17:02] Speaker 05: Well, to go back to your original question about page five and six regarding Boeing, I think if you just look at page five in particular, where they start with the step two process, shared interests of excluded employees, and the third full paragraph, they start analyzing some of the shared interests and distinct interests. [00:17:26] Speaker 05: And then you go over to the next column, the next [00:17:29] Speaker 05: paragraph, it says, by contrast. [00:17:32] Speaker 05: So again, they're starting to analyze the distinctions between the two groups. [00:17:37] Speaker 05: It's not simply a laundry list that's being laid out. [00:17:42] Speaker 02: Well, they did that in this case as well. [00:17:45] Speaker 02: I'd say the differences are relatively insignificant in the context of collective bargaining, but I don't see any because, which I thought you wanted a because sentence. [00:17:52] Speaker 05: Yeah, I do. [00:17:52] Speaker 02: They made the same conclusion in this case that the regional director agreed [00:17:57] Speaker 02: that there are some things that they had in common. [00:18:02] Speaker 02: I mean, it's a little hard to transpose the words because they were finding the group here and they didn't there, but they said, yeah, sure, there are some things that they have in common, but they don't outweigh the factors. [00:18:16] Speaker 02: They don't carry much weight because they're [00:18:18] Speaker 02: things in common that all employees have. [00:18:20] Speaker 02: So I just don't see the because stuff that I thought you said they had. [00:18:23] Speaker 05: Well, I think in particular, it's just as much of anything, it's just the lack of analysis. [00:18:30] Speaker 05: I mean, it's very conclusionary in our case. [00:18:33] Speaker 05: We find that there are not significant distinguishing. [00:18:37] Speaker 02: There might have been a shorter list of factors. [00:18:40] Speaker 05: Well, no, if you turn the page before, and there's a whole laundry list of different factors that come into play. [00:18:46] Speaker 05: And most of those aren't even addressed. [00:18:49] Speaker 02: OK. [00:18:49] Speaker 02: This looks to me like a list of factors that are in and are out, just like that one. [00:18:54] Speaker 02: It's maybe a longer list. [00:18:57] Speaker 02: I don't see the analysis. [00:18:58] Speaker 02: I thought your objection was not that they didn't just talk long enough about the factors, but that they didn't. [00:19:04] Speaker 02: You said it was conclusory. [00:19:05] Speaker 02: They didn't say why it mattered. [00:19:07] Speaker 02: And that's what I was looking for here was the why statements. [00:19:09] Speaker 05: Well, again, if you look at Boeing in depth and you go through the analysis, there's a lot on page five in particular. [00:19:18] Speaker 02: OK. [00:19:18] Speaker 02: You don't have a particular sentence you can point me to that does that why analysis? [00:19:21] Speaker 05: Well, I don't think so. [00:19:24] Speaker 02: Great. [00:19:27] Speaker 00: All right. [00:19:28] Speaker 00: Thank you, counsel. [00:19:29] Speaker 00: Thank you to both counsel. [00:19:31] Speaker 00: We'll take this case under submission.