[00:00:00] Speaker 02: Dates number 20-1050 et al. [00:00:03] Speaker 02: Stein, Inc. [00:00:03] Speaker 02: Petitioner versus National Labor Relations Board. [00:00:07] Speaker 02: Mr. Pryotel for the petitioner Stein, Inc. [00:00:10] Speaker 02: Mr. Padel for the petitioner International Union of Operating Engineers Local 18. [00:00:15] Speaker 02: Ms. [00:00:15] Speaker 02: Pania for the petitioner's truck chauffeurs and helpers, Local Union Number 100, and Laborers International Union of America, Local Number 534. [00:00:24] Speaker 02: Ms. [00:00:25] Speaker 02: Isbell for the respondent. [00:00:30] Speaker 07: Morning, counsel. [00:00:33] Speaker 05: Morning, Judge. [00:00:35] Speaker 07: Is it Pryotel? [00:00:37] Speaker 05: Yes, Judge. [00:00:38] Speaker 07: All right. [00:00:38] Speaker 07: Good morning, Mr. Pryotel. [00:00:39] Speaker 07: You may proceed when you are ready. [00:00:42] Speaker 05: May it please the court, Keith Pryotel for the petitioner Stein, Inc. [00:00:48] Speaker 05: When the National Labor Relations Board fulfills its mandate to define appropriate units under the National Labor Relations Act, whether it be in the burn successorship setting, [00:00:59] Speaker 05: or with newly organized units as a result of a successful organizing campaign, it is subject to three congressional requirements. [00:01:09] Speaker 05: First, under section 9A of the act, any appropriate unit must be represented by an exclusive representative. [00:01:17] Speaker 05: You cannot have a singular employee represented by multiple unions at a single employer. [00:01:25] Speaker 05: That is not exclusive. [00:01:28] Speaker 05: Second, [00:01:29] Speaker 05: Under section 9B of the act, any appropriate unit must take account and assure employees the fullest freedom in exercising their national labor relation rights acts. [00:01:40] Speaker 05: That would include not only those within the unit, but those external to the bargaining unit. [00:01:46] Speaker 05: And finally, under section 9C of the act, history of bargaining cannot be controlled. [00:01:54] Speaker 05: It can be a factor, but it cannot be controlled. [00:01:57] Speaker 01: Isn't that a history of organization? [00:02:00] Speaker 05: History of organization, yes, your honor. [00:02:02] Speaker 01: Is that the same as history of bargaining? [00:02:06] Speaker 05: I believe it is. [00:02:07] Speaker 05: I don't think there's a differentiation between the two. [00:02:11] Speaker 01: Has the board treated them as the same? [00:02:14] Speaker 05: Well, I think this court has treated them as the same, that the history of bargaining, to the extent the court looks like it looks at it in the burn setting, cannot be controlling. [00:02:25] Speaker 05: And the Trident Seafood and the Teferia paper cases [00:02:29] Speaker 05: those were both histories of bargaining that had long histories of bargaining, as a matter of fact, where the court reversed the board's determination of a unit appropriateness in the burn setting. [00:02:39] Speaker 01: That may be a fair point, but it isn't quite the same history of organization or extent of organization, which is really designed to deal with the initial representation proceedings. [00:02:57] Speaker 05: It may be that the board [00:02:59] Speaker 05: The viewpoint of view is judged that the petition that was actually presented, the history of that history is not controlling. [00:03:08] Speaker 05: But if you go and look what the court did in those three cases, Trident Seafood and Deferrier Paper, and even in the Indianapolis Max Sales, which the court adopted, I know it's a Seventh Circuit decision, but the court adopted it in both Deferrier Paper and in Trident Seafood, its analysis, it shed [00:03:27] Speaker 05: a substantial bargaining history where there were job classifications because of the similarity between the excluded employees out of the unit and those. [00:03:36] Speaker 01: You may well be right, counsel, but it's not the same thing as extent of organization. [00:03:44] Speaker 01: Different concept. [00:03:45] Speaker 05: Yes, your honor. [00:03:48] Speaker 04: Can I ask you another question about the statute? [00:03:51] Speaker 04: So your position [00:03:54] Speaker 04: as I understand it is that there is a nearly per se rule for plant wide units in an integrated plant strong enough even to overcome history to the contrary. [00:04:13] Speaker 04: But the statute not nine be on its face gives the board a range of choices, including plant units employer units craft units or subdivisions. [00:04:28] Speaker 05: Yes, your honor. [00:04:28] Speaker 04: So how do you reconcile your position with that seemingly very broad range of discretion to the board. [00:04:39] Speaker 05: Actually, it's been conceded, I think, here by the board and it's briefed to this court at page 38 of the NLRB's brief. [00:04:46] Speaker 05: But if you recall what the board does, it doesn't rule, it doesn't issue regulations with respect to the three 9A, 9B, 9C. [00:04:56] Speaker 05: It rule makes, it does not rule make, it makes its decisions through individual decision making. [00:05:01] Speaker 05: That's what it chose to do. [00:05:02] Speaker 05: In border steel rolling mills, the very first sentence of that case, which was a Burns case, [00:05:09] Speaker 05: says there is a presumption of a plant-wide unit in a burn successorship setting. [00:05:15] Speaker 05: Now, in a briefing to the court, the NLRB has tried to turn that on Stein to try to reconcile that with the traditional burns history of bargaining and said, hey, Mr. Price, you can't come forward with the circuit with a case that squares those two principles. [00:05:33] Speaker 05: I don't think that's our obligation. [00:05:35] Speaker 05: If the NLRB wants to say that it's holding and burn steel rolling mill where it did have a presumption of a plant wide unit at a fully integrated plant, it's somehow trumped by the history of bargaining. [00:05:47] Speaker 05: It needs to say that in some kind of decision because that's how it issues its regulation, so to speak. [00:05:54] Speaker 07: I'm just starting with our precedent in Trident, which held that the plant-wide unit test and the community of interest test apply only when delineating units of previously unrepresented employees, not as here when the board is assessing historical units that have had long periods of successful collective bargaining. [00:06:14] Speaker 07: So I thought we were beyond that. [00:06:16] Speaker 07: We're in a situation in which [00:06:18] Speaker 07: As our court and the board have said, the board places a heavy evidentiary burden on a party attempting to show that historical units are no longer appropriate. [00:06:31] Speaker 07: So in what respect has the board acted contrary to [00:06:43] Speaker 07: to that in determining that Stein didn't bear its heavy evidentiary burden in this case? [00:06:53] Speaker 05: There's a couple of ways, Judge, that we believe the board erred in that regard. [00:06:59] Speaker 05: First of all, the Deferriate Paper case says you cannot just look at a comparative. [00:07:04] Speaker 05: What did you do afterwards, Mr. Stein, in terms of trying to change the way you operate it [00:07:09] Speaker 05: and compared to how it proceeded under the predecessor employer here at TMS. [00:07:13] Speaker 05: The board never undertook that analysis. [00:07:16] Speaker 05: And this court in both Trident Seafood and Deferrie Paper said, hey, even without a single change in the way you operate, you still can have an inappropriate burns unit when you look at what was done at the predecessor in terms of how it operated. [00:07:35] Speaker 05: And you only need to move the needle inches, not miles, [00:07:39] Speaker 05: if in fact that unit was marginally appropriate to begin with. [00:07:44] Speaker 05: And again, the board did not take that comparative analysis here. [00:07:47] Speaker 05: It only looked at, hey, you only trained a few employees by the cutoff point that it established for looking at whether there was cross-training across jurisdictional work. [00:07:58] Speaker 05: It did not apply. [00:08:00] Speaker 01: Actually, council, as I read those opinions, we said, you have to look at the prior situation [00:08:06] Speaker 01: even without regard to any changes, even infinitesimal changes. [00:08:12] Speaker 05: That's correct, Judge Silverman. [00:08:13] Speaker 05: You do have to look at that without any changes, correct. [00:08:16] Speaker 07: What about the prior situation here was so inappropriate in terms of, you know, these are people doing, some are drivers, some are mere laborers, and some are, you know, machine operator type employees and their different wage rates. [00:08:34] Speaker 07: So what's the [00:08:37] Speaker 07: What's the blatant inappropriateness of the prior unit structure? [00:08:42] Speaker 05: Well, the connection point between all three of those units, and I think it was spelled out in both our reply brief and our principal brief, Judge, was if you take those three labor contracts, the laborer's contract, the operator's contract, and the teamster's contract, and you would overlay them with each other. [00:09:00] Speaker 05: Literally, every wage, hour, and term, and condition of employment of those three labor contracts are identical except for [00:09:07] Speaker 05: the multi-employer fringe benefit funds, the pension fund that they had to contribute to, and the wage rates. [00:09:15] Speaker 05: And the board itself has said that the wage rates, the mere differential in the wage rates between classifications cannot be determined at a factor in determining whether a burn successorship unit is inappropriate. [00:09:26] Speaker 05: It said that on the remand of the Indianapolis Max Steel case. [00:09:31] Speaker 07: But also jobs, the jobs are different. [00:09:33] Speaker 07: And that's really the driving force may not. [00:09:37] Speaker 07: And that's why I understand Stein to have focused its evidentiary proffer on on cross training, because in fact, the jobs are quite different. [00:09:48] Speaker 05: The jobs are different. [00:09:50] Speaker 05: And you're correct that from the outset, Stein's announcement was we are not going to operate like TMS operated. [00:09:58] Speaker 05: These people are going to be cross trained. [00:10:00] Speaker 05: there's going to be cross-jurisdictional work. [00:10:03] Speaker 05: As a matter of fact, in a finding by the board at footnote six of the decision, it specifically rejected the administrative law judge's decision that said, well, Stein, you set this up. [00:10:13] Speaker 05: You impermissibly changed that cross-jurisdictional assignment. [00:10:18] Speaker 05: And the board not only reversed the ALJ on that, but said, we had a right under Burns to do that, that we had an inalienable right under Burns to do that. [00:10:26] Speaker 05: And we did that. [00:10:28] Speaker 05: And so now you get into cross-jurisdictional work. [00:10:30] Speaker 05: where you're having laborers jumping on operating engineers' equipment. [00:10:36] Speaker 05: They're jumping in the Tarex off-haul trucks, and every unit is doing everybody's different types of work. [00:10:43] Speaker 05: And that's one of the changes in addition to what was announced in the November 9 communication that the board set the initial terms and conditions of employment, which was the seniority now has been melded together. [00:10:57] Speaker 01: Excuse me, counsel. [00:10:58] Speaker 01: With respect to Judge Pillard's question, the fact that jobs are different, is that a ground for separate units? [00:11:09] Speaker 01: Has the board ever concluded that simply because different jobs are performed by different people that units can be attributed or drawn just in terms of jobs? [00:11:23] Speaker 05: I don't think it's just in terms of jobs, Judge Silberman. [00:11:26] Speaker 05: I do think they look at functional integration as well. [00:11:29] Speaker 01: Right. [00:11:29] Speaker 01: I don't think I've ever seen a board decision where units are crafted in terms of jobs. [00:11:36] Speaker 05: The only where it exists, Judge Silberman, is in the construction setting, which are mostly AAF contracts. [00:11:41] Speaker 01: That's right. [00:11:42] Speaker 01: AAF is a different situation entirely. [00:11:45] Speaker 05: but the board does not do that here. [00:11:46] Speaker 05: It always looks at functional integration, which it did in the Boeing case, which I know is not a Burns case, but it did drive off of the 9A, 9B, 9C analysis. [00:11:55] Speaker 01: Why don't you go through, the board says community of interest is not relevant when we're talking about successorship situation. [00:12:07] Speaker 01: I'm puzzled about that. [00:12:09] Speaker 01: I can't imagine any other standard that could be used. [00:12:13] Speaker 01: that wouldn't relate to community of interest. [00:12:16] Speaker 01: Would you run through the factors that you think make separate units here inappropriate? [00:12:24] Speaker 05: Yes, your honor. [00:12:27] Speaker 05: In addition to the fact they now share exact wages, hours, terms, and conditions of employment as a result of the singular collective bargaining agreement that was implemented 1118, [00:12:39] Speaker 05: We have common supervision between all employees. [00:12:44] Speaker 05: They all attend the same safety meetings in the morning. [00:12:47] Speaker 05: They share the same parking lots. [00:12:49] Speaker 05: They share the same lunch rooms, same shower facilities. [00:12:54] Speaker 05: The interaction between the employees is nonstop. [00:12:57] Speaker 05: This is not something that happens on a sporadic basis. [00:13:00] Speaker 05: These three units work in conjunction with each other with daily contact. [00:13:05] Speaker 05: both eyesight contact and verbal contact trying to carry out the slag reclamation that takes place. [00:13:10] Speaker 01: Perhaps you should go through the functional interrelationship. [00:13:14] Speaker 05: The functional interrelationship is, it is so interlocking, Judge, that I can't fathom how you cannot find functional interrelationship between these two. [00:13:25] Speaker 01: Why don't you just explain it? [00:13:27] Speaker 05: Sure. [00:13:29] Speaker 05: The slag reclamation has not really changed. [00:13:31] Speaker 05: This is nothing new here that's changed. [00:13:34] Speaker 05: in the sense that you have Tarex trucks that are sitting right next to a loader operated by an operator. [00:13:42] Speaker 05: The Tarex truck is driven by a teamster and there's a laborer hosing down the area to keep it cool so the pits don't catch on fire, the product, and that it's properly loaded into the truck. [00:13:54] Speaker 01: The Labor also does spotting for safety purposes. [00:13:58] Speaker 05: He does do spotting for safety purposes. [00:14:00] Speaker 05: And that is another factor where the board has been kind of inconsistent here because it says if someone's function is safety and it's inextricably intertwined with the bargaining unit, Westinghouse decision, then they belong in the same unit. [00:14:14] Speaker 05: I see I'm into my rebuttal time and I do want to get to Mr. Carolee in my rebuttal because I do want to raise some points there. [00:14:20] Speaker 05: So if there's any other questions. [00:14:21] Speaker 07: Why don't you say a little, a little about Carolee now so that other council have a chance to respond to what you say where we, unlike many courts, we're a little bit loose with our time. [00:14:33] Speaker 07: We really want to get your assistance and decide in case of deciding it appropriately. [00:14:39] Speaker 07: My colleagues are not, uh, [00:14:43] Speaker 07: are not bothered by that. [00:14:44] Speaker 07: I'll give you a chance to address Mr. Curley's situation. [00:14:48] Speaker 04: Thank you. [00:14:48] Speaker 04: Thank you. [00:14:49] Speaker 04: Before we move to a different topic, can I just ask one more question on this, which is seems to me your best case is Indianapolis MAC. [00:15:02] Speaker 05: Yes, very strong case for us. [00:15:05] Speaker 04: But it would seem to be distinguishable to the extent that [00:15:11] Speaker 04: The smaller units, the parts unit and the service unit in that case were historically represented by the same union, which supported a finding that the collective bargaining had effectively been merged and historically done together. [00:15:33] Speaker 04: and we don't have that here with historically three separate units. [00:15:39] Speaker 05: You're correct, but they were two different units, I understand, represented by the same union, but there were two separate units in Indianapolis MAC cells. [00:15:48] Speaker 05: You're correct, Your Honor. [00:15:49] Speaker 04: Sure, but the fact of having only one union in Indianapolis MAC would seem to make it easier to think that [00:16:03] Speaker 04: historically, the collective bargaining had been done together. [00:16:07] Speaker 05: Except border steel kind of runs counter to that, because there you did have multiple unions in a burn successorship setting, where it was the steelworkers battling it out with the teamsters when the amalgamation took place. [00:16:22] Speaker 05: That was the case you mentioned earlier on plant-by-presumption for burns. [00:16:27] Speaker 04: Yes, Your Honor. [00:16:27] Speaker 04: OK. [00:16:29] Speaker 04: Thank you. [00:16:29] Speaker 04: You can move on. [00:16:31] Speaker 05: Okay, briefly about Carolee, there has been a market shift in the board's theory when it reversed the judge who originally decided to Carolee on the proposition that we had impermissibly changed the 60 day laborers probationary period to a 90 working day probationary period and therefore violated the act. [00:16:55] Speaker 05: The board went on altogether different theory and said, no, no, no, [00:16:59] Speaker 05: He had the right to do that under Burns. [00:17:01] Speaker 05: We had the inalienable right to change the probationary period under Burns. [00:17:05] Speaker 05: There was never a question that Carolee was in his probationary period. [00:17:09] Speaker 05: He admitted it. [00:17:11] Speaker 05: The board argued it. [00:17:12] Speaker 05: And the board argued he was in his probationary period because they wanted to fit this case into their total security management proposition, which is in between labor contracts when employees are unprotected as the negotiation process is taking place. [00:17:27] Speaker 05: They had the total security case held. [00:17:30] Speaker 05: In that setting, you had to go to the union first before issuing discipline because those employees were unprotected. [00:17:37] Speaker 05: They wanted to stretch that in our case to the probationary period of a contract where they similarly are largely unprotected. [00:17:44] Speaker 05: So there wasn't any question by the parties here that we were dealing with a very valid, legitimate probationary period. [00:17:50] Speaker 05: Matter of fact, that's what the board argued in its briefing to the ALJ. [00:17:55] Speaker 05: Then it comes to the board and the board said, no, [00:17:57] Speaker 05: Wait a minute, he wasn't in his probationary period because the 90 day, which doesn't say calendar or working day announcement in the November 9 announcement was our initial terms and conditions that somehow changed when we did it 90 working days. [00:18:16] Speaker 05: And the key there, I think to the key, whole key thing here, Judge Pilar to this is that look at how they pled their case in paragraphs 11 and 12 of the complaint. [00:18:25] Speaker 05: They actually said that the labor contract with the operating engineers was in fact our initial hours, wages, terms, and conditions that we had a right to establish under burns. [00:18:37] Speaker 05: In that labor contract, as clear as bells, it says the 90 day working period is a working period. [00:18:44] Speaker 05: It's not a 90 day calendar period. [00:18:47] Speaker 05: So when I'm defending that case down below on that theory, I'm just simply going in there [00:18:53] Speaker 05: kind of like it with Burns in my back pocket. [00:18:56] Speaker 05: I just have to show that Burns says I get the right to set that. [00:19:00] Speaker 05: Now they tilted it and changed the theory altogether to this 90 calendar day versus 90 working day, which was never an issue in the case. [00:19:08] Speaker 05: All right. [00:19:09] Speaker 07: All right. [00:19:10] Speaker 07: I think we have a sense of your position. [00:19:14] Speaker 07: Thank you, Judge. [00:19:14] Speaker 07: And we will give you some time for rebuttal. [00:19:16] Speaker 07: Thank you. [00:19:17] Speaker 01: Can I just ask one quick little question? [00:19:20] Speaker 01: Sure. [00:19:20] Speaker 01: If you were to prevail on your basic position, [00:19:24] Speaker 01: Does the Carol Lee issue drop out? [00:19:27] Speaker 05: The basic position of the units, Your Honor? [00:19:30] Speaker 01: Yes. [00:19:33] Speaker 01: If you were right, that the units was inappropriate, then the Carol Lee issue drops out, isn't it? [00:19:44] Speaker 05: Right, because we have the unified collective bargaining agreement that's set out in very clear text, Judge. [00:19:50] Speaker 05: Yes. [00:19:54] Speaker 07: Mr. Fadal? [00:19:55] Speaker 03: Yes, your honor. [00:19:56] Speaker 03: Timothy Fadal on behalf. [00:19:58] Speaker 07: Sorry, Fadal. [00:19:59] Speaker 03: Oh, it's fine, your honor. [00:20:00] Speaker 03: Participant respondent, International Union of Operating Engineers. [00:20:04] Speaker 03: With the court's lead, I would request two minutes for rebuttal time. [00:20:08] Speaker 03: Representational status under Section 9A of the Act carries with it a variety of rights and privileges. [00:20:15] Speaker 03: included among those is a presumption of majority support in the bargaining unit during the existence of the bargaining, during the existence of that collective bargaining agreement and for a reasonable period during any subsequent negotiation. [00:20:31] Speaker 03: Given the important role that Section 9A status plays in the successorship doctrine, it has always been a fundamental precondition to any finding of successorship liability [00:20:43] Speaker 03: that there is an actual collective bargaining agreement in existence between the predecessor employer and the union, and that that prior agreement was the product of majority support. [00:20:57] Speaker 07: Mr. Fidel, your hurdle here is the time bar, and I'm just wondering how do you distinguish Southern Power, [00:21:07] Speaker 07: I weather where we applied Section 10B's time bar to burn successor's 9A majority status defenses. [00:21:18] Speaker 03: The best distinction that the union would point to in this case, Your Honor, is that here the union is alleging or asserting the lack of a 9A status [00:21:29] Speaker 03: in response to the board's inclusion of that status as an element of its case. [00:21:36] Speaker 03: In this case, the board itself identified Section 9A status as an element of its claim. [00:21:43] Speaker 07: Well, whether they say it or not, it's implicit. [00:21:45] Speaker 07: The notion under burns is you have a union that has been recognized historically. [00:21:52] Speaker 07: And that is a presumptive appropriate unit [00:21:57] Speaker 07: when a new employer takes over. [00:22:00] Speaker 07: And the fact that they pleaded it here is just a recognition that that's one of the preconditions. [00:22:06] Speaker 07: And factually, maybe they're wrong. [00:22:07] Speaker 07: But that doesn't lift the time bar. [00:22:11] Speaker 07: Or at least I'm not following your argument about why it might. [00:22:14] Speaker 03: Well, in the case where the employer is required to, excuse me, where a union is asserting a successorship obligation on behalf of the successor employer, that entire relationship is based upon an underlying 9A's representational relationship. [00:22:31] Speaker 03: That's usually presumed. [00:22:32] Speaker 03: There is usually no doubt about that. [00:22:34] Speaker 03: It is usually referred to by reference to board certified elections or appropriate language in a collective bargaining agreement. [00:22:41] Speaker 03: In this case, you don't even have a valid collective bargaining agreement that the team stewards or the laborers could cite to when they're attempting to assert a successor obligation. [00:22:53] Speaker 03: In both cases, in both instances, the collective bargaining agreements between the predecessor employee, TMS, and the laborers and the teamsters were both expired. [00:23:04] Speaker 03: I believe for the laborers, it expired in sometime in 2016. [00:23:08] Speaker 03: And for the teamsters, it expired on December 31, 2017, which is immediately prior to the successor employer taking over. [00:23:17] Speaker 03: During that period of time, there were no requests for bargaining. [00:23:20] Speaker 03: So to the extent that the Southern power cases and that line of cases all point to the existence of a collective bargaining agreement as a basis for finding a nine-day relationship, it was the existence of a valid collective bargaining agreement that was being maintained by the employer. [00:23:36] Speaker 03: In this case, we really do not have any evidence of the collective bargaining agreement being maintained. [00:23:40] Speaker 01: Well, counsel, that puzzles me because even without a collective bargaining agreement, [00:23:46] Speaker 01: And there is a collective bargaining relationship with the incumbent union, isn't that correct? [00:23:55] Speaker 01: Otherwise, under your theory, there wouldn't be any collective bargaining obligation on part of an employer when there was a gap between one contract and another. [00:24:05] Speaker 01: And we know that's not true. [00:24:07] Speaker 03: There is a reasonable period of time where collective bargaining... Actually, it could go on for three years. [00:24:16] Speaker 01: Negotiation, there'd still be a collective bargaining relationship. [00:24:19] Speaker 03: Correct, based on the individual facts and circumstances, it could take up to three years, Your Honor, if the parties were engaged in actual good faith negotiations towards reaching a successor agreement. [00:24:28] Speaker 01: Unless you could argue the union was defunct, there would still be, which is a very limited concept, as you well know, there'd still be a collective bargaining relationship. [00:24:38] Speaker 01: So I don't understand your emphasis on an existence of a collective bargaining agreement or not. [00:24:44] Speaker 03: The union's emphasis would be on the fact that neither the laborers and the teamsters have ever introduced any evidence that would show that they had a majority support within the units that they pretend to represent throughout it. [00:24:58] Speaker 03: And that would be the point that Local 18 is the only labor organization that was able to make any showing of majority support in any unit, both the unit prior to the merger and the unit after the merger. [00:25:10] Speaker 01: Well, I don't think [00:25:13] Speaker 01: Did Stein challenge the majority status of the teamsters and laborers, assuming they were legitimate separate units? [00:25:25] Speaker 03: I believe the evidence in this case, the record demonstrates that on November 9, Stein's supervisor advised all employees, including union stewards, that it would no longer be recognizing laborers or teamsters. [00:25:40] Speaker 01: But that's because of the unit determination. [00:25:42] Speaker 01: not because of a claim that the Team Susan Labor is no longer represented in the majority. [00:25:50] Speaker 01: I think this is a diversion from the main issue in the case. [00:25:54] Speaker 03: Very well, Your Honor. [00:25:55] Speaker 03: I see I'm beyond the time that have been allocated. [00:25:58] Speaker 07: All right. [00:25:58] Speaker 07: Thank you. [00:26:00] Speaker 07: Judge Casas, any further questions for Mr. Pedel? [00:26:05] Speaker 07: We'll hear from Ms. [00:26:06] Speaker 07: Spongia? [00:26:08] Speaker 07: Spongia? [00:26:09] Speaker 07: Spongia? [00:26:11] Speaker 07: Miss Spagna, your honor. [00:26:12] Speaker 07: Thank you. [00:26:13] Speaker 07: Say it again. [00:26:14] Speaker 07: Spagna. [00:26:15] Speaker 07: Spagna. [00:26:15] Speaker 07: Okay. [00:26:16] Speaker 07: Thank you. [00:26:16] Speaker 07: Let me proceed. [00:26:22] Speaker 08: Thank you. [00:26:22] Speaker 08: Good morning. [00:26:23] Speaker 08: May it please the court. [00:26:24] Speaker 08: I'm Stephanie Spagna and I'm here on behalf of the joint petitioners, Teamsters Local 100 and Laborers Local 534. [00:26:33] Speaker 07: I'm sorry, Miss Spagna. [00:26:34] Speaker 07: Your voice is actually fluctuating quite a bit and I don't know if it's moving your head or if there's a way to [00:26:42] Speaker 07: We're ultimately hearing you clearly and not so clearly. [00:26:46] Speaker 08: Okay, well, I'll do my best to keep my head in. [00:26:52] Speaker 08: I'm going to try to keep the movement to a minimum. [00:26:54] Speaker 08: Um. [00:26:55] Speaker 08: The joint petitioners have petition this court review of only those portions of the board's decision in which the board deleted the LJ's ninth conclusion of law that Stein had forfeited its right as a burn successor to set the initial terms and conditions for the bargaining unit employees that were represented by the [00:27:22] Speaker 01: I'm having terrible trouble hearing counsel too. [00:27:28] Speaker 01: It goes up and down and up and down. [00:27:29] Speaker 01: Is there something wrong with her microphone? [00:27:37] Speaker 07: I think it is a microphone issue. [00:27:39] Speaker 07: Can you bring it closer or hold it up? [00:27:42] Speaker 08: Actually, I'm just speaking into the computer. [00:27:46] Speaker 07: Does that help if I get closer? [00:27:48] Speaker 08: I feel like a giant head right now. [00:27:51] Speaker 07: You end up with a backache, but it will actually help us a lot to hear you. [00:27:55] Speaker 08: It's more important that you hear me than just ignore the giant head here. [00:28:01] Speaker 08: So, as I was saying, the petitioner's different petitions for review of the board's deletion of the Judge Collins' ninth conclusion of law in which he had found that they had signed a forfeit at its right as a burn successor just to set the initial terms and conditions [00:28:21] Speaker 08: of employment for the employees represented by teamsters and laborers. [00:28:25] Speaker 08: And also that portion in which the board deleted the part of Judge Gollin's order directing Stein to retroactively restore the terms and conditions of employment for the teams to represented drivers and laborers represented labors under their respective contracts. [00:28:43] Speaker 08: The joint petitioners respectfully submit that in these respects, the board's decision was arbitrary and clearly erroneous. [00:28:50] Speaker 08: And specifically, the board misconstrued key aspects of the judge's factual findings and misapplied its own precedent in advanced stretch forming. [00:29:01] Speaker 08: Accordingly, the joint petitioners respectfully requested the court reverse those portions of the board's decision and restore the ninth conclusion of law as well as [00:29:10] Speaker 08: the portion of the remedy that was also stricken. [00:29:13] Speaker 07: In Burns itself, the employer spent a month hiring its predecessors employees and encouraging them to fill out union cards for its preferred union. [00:29:26] Speaker 07: before it began operations and proposed its initial terms. [00:29:30] Speaker 07: But the Supreme Court still held that Burns had a right to impose those terms. [00:29:34] Speaker 07: And so I'm just wondering, how is Stein's conduct here distinguishable from the conduct that the court held did not require, did not forfeit the right to set initial terms and conditions in the Burns case itself? [00:29:49] Speaker 08: Yes, I think that Stein's conduct is distinguishable in a couple of different ways. [00:29:55] Speaker 08: One is that in this case, Burns had already had an active relationship with another union at a different site. [00:30:05] Speaker 08: And here the board had found that there had been, Stein did not have any other relationships with, pre-existing relationships with the units that were on this site. [00:30:14] Speaker 08: In addition, Stein's course of conduct throughout- Why is that point relevant? [00:30:20] Speaker 08: Well, it's relevant because you basically have at least a fig leaf of an employer attempting to maintain an ongoing relationship with one union. [00:30:32] Speaker 08: Here, Stein essentially barged in and disrupted the [00:30:38] Speaker 08: the ongoing bargaining relationships of several, of two unions. [00:30:43] Speaker 08: And it did so in a very clandestine and secretive manner. [00:30:48] Speaker 08: It solicited one union months before it even had won the contract for AK Steel and then secretively engaged in collective bargaining negotiations without even having had a show of majority support among other unions. [00:31:03] Speaker 01: Council, hasn't the board made a policy decision [00:31:07] Speaker 01: legal policy decision as to what kind of matters will cause a forfeiture and what will not? [00:31:15] Speaker 01: And aren't you swimming uphill? [00:31:17] Speaker 08: The board in its response to us, to our brief, is articulated essentially, you know, two tools. [00:31:25] Speaker 08: One would be a situation in which, in the loves barbecue line of cases where an employer goes out of its way to avoid hiring discriminates against the previously unionized employees. [00:31:38] Speaker 08: And then the other case in which they simply refuse to have union at all. [00:31:41] Speaker 08: They simply have to utter the words, no union. [00:31:45] Speaker 08: And we think that advanced stretch forming goes a bit beyond that and articulates a broader equitable principle in play here, because the issue here is that this involved a [00:32:02] Speaker 08: latent coercion to paraphrase stretch forming of the employees of their right to bargain collectively through representative of their own choosing. [00:32:11] Speaker 08: And here the teamsters employees and the laborers employees are both denied the ability to be represented by their representatives of their own choosing. [00:32:20] Speaker 01: If Stein and the operating engineers are correct about the unit question, then your claim falls away, right? [00:32:33] Speaker 08: I guess I would have to consider that, Your Honor. [00:32:45] Speaker 08: Honestly, I'm not sure, Your Honor. [00:32:47] Speaker 08: I think that I've encroached upon my response time, my rebuttal time, so I should close at this point. [00:33:01] Speaker 07: All right. [00:33:05] Speaker 07: We will hear now from the board, Ms. [00:33:09] Speaker 06: Isbell. [00:33:11] Speaker 06: Thank you. [00:33:12] Speaker 06: Good morning. [00:33:13] Speaker 06: Kelly Isbell here on behalf of the National Labor Relations Board. [00:33:17] Speaker 06: Stein presented its employees with a fait accompli. [00:33:21] Speaker 06: It would bargain with Local 18 and only with Local 18. [00:33:25] Speaker 06: Choosing the union for your employees and imposing it on them is a violation. [00:33:30] Speaker 01: Wait a minute, Council. [00:33:31] Speaker 01: The whole question is what is the proper unit determination, isn't it? [00:33:36] Speaker 06: It is. [00:33:37] Speaker 01: Why don't we go right to that rather than waving the bloody shirt? [00:33:43] Speaker 06: If you insist, Your Honor. [00:33:47] Speaker 06: Stein's defense is that the historical units are no longer appropriate. [00:33:53] Speaker 06: I don't read their brief or their arguments to the board as arguing that the existing units before they took over were inappropriate. [00:34:02] Speaker 06: This is an issue. [00:34:03] Speaker 01: I do. [00:34:04] Speaker 01: They cite. [00:34:05] Speaker 01: are cases Trident and DeFries, and both of those cases focused heavily on the question of whether or not the existing units were appropriate without regard to any changes. [00:34:27] Speaker 06: Yes, those two cases did, but I don't see an argument that these particular units were inappropriate beforehand. [00:34:35] Speaker 01: I do saw that in their brief. [00:34:38] Speaker 01: They focus on the interrelationship of the employees, which is a question preceding their time taking over. [00:34:51] Speaker 06: When there is a successorship situation, the board does not conduct an analysis as if it were in an initial bargaining situation. [00:35:00] Speaker 01: Yes, you said in your brief, you do not use community [00:35:04] Speaker 01: and of interest. [00:35:06] Speaker 01: You no longer use that in a successorship concept, right? [00:35:10] Speaker 06: I don't know that the board ever used the entire community of interest analysis as it would in an initial 9A system. [00:35:21] Speaker 01: Okay, now I hear that fascinates me. [00:35:24] Speaker 01: As we have said in our opinion, if it fails to conform reasonably to other standards of appropriateness, [00:35:35] Speaker 01: the existing situation, then it's not an appropriate unit, right? [00:35:41] Speaker 06: Exactly, Your Honor. [00:35:42] Speaker 01: Now, explain to me how that standard differs from community of interest, because I find it very difficult to even conceptualize a standard that would be removed from community of interest. [00:35:59] Speaker 06: It is not entirely removed from community of interest. [00:36:02] Speaker 06: You are correct. [00:36:03] Speaker 01: Then what is it? [00:36:04] Speaker 01: Then what is it? [00:36:06] Speaker 01: Council didn't establish his burden, but I had a damn good time trying to figure out what standard he has to prove to. [00:36:16] Speaker 06: He has to show that the units are repugnant to the acts policy. [00:36:20] Speaker 01: What does that mean? [00:36:21] Speaker 06: Or truly inappropriate. [00:36:23] Speaker 01: Truly. [00:36:23] Speaker 01: Now, why aren't these units truly inappropriate? [00:36:27] Speaker 06: Because. [00:36:28] Speaker 01: Do you have any example of any case anywhere by the NLRB? [00:36:33] Speaker 01: in which a unit like this was declared appropriate. [00:36:39] Speaker 06: Your honor, are we in a successorship situation? [00:36:42] Speaker 01: No, no. [00:36:43] Speaker 01: You said the question in a successorship is whether it's truly inappropriate. [00:36:48] Speaker 01: I can see there may be some flexibility along the edges, but this case looks to me like it would be truly inappropriate if it came up ab initio. [00:37:00] Speaker 01: Would you agree with that? [00:37:02] Speaker 01: no regional director would ever allow this unit to be put together in three different parts. [00:37:08] Speaker 01: Don't you agree? [00:37:09] Speaker 06: I'm not entirely sure I agree, but remember in a successorship situation, in any initial bargaining situation even, you're looking for an appropriate unit, not the most appropriate unit. [00:37:21] Speaker 01: Well, that's absolutely correct. [00:37:24] Speaker 01: But I put it to you, give me a case where this kind of situation was thought of as N, [00:37:32] Speaker 01: appropriate bargaining unit. [00:37:37] Speaker 01: Any case anywhere. [00:37:38] Speaker 06: I'm going to have to think about that, Your Honor, because there are a lot of cases rolling around in my head. [00:37:43] Speaker 01: But remember... I'm thinking about it a lot too. [00:37:46] Speaker 01: I would put it to you, there is no such case. [00:37:50] Speaker 06: Well, even if we go back to hotel cases, for example, those employees are also doing functionally integrated work. [00:37:57] Speaker 06: Everyone is running the hotel, making sure guests have a good time. [00:38:01] Speaker 06: And the board has found those units can, in many cases, be separate units. [00:38:08] Speaker 07: What kind of units? [00:38:09] Speaker 07: It's like people who are doing luggage transport versus people who are cleaning rooms versus what? [00:38:20] Speaker 06: The front desk, the people who are working in the restaurant. [00:38:24] Speaker 06: They all have to make sure their jobs are coordinated. [00:38:28] Speaker 01: Traditionally clerical employees can be disassociated from production and maintenance employees. [00:38:35] Speaker 01: That's true. [00:38:36] Speaker 01: That is true. [00:38:38] Speaker 01: But I can't imagine a circumstance, and I know of none, where this would be deemed an appropriate unit, what we have here. [00:38:48] Speaker 01: functional interrelationship between all of the three groups. [00:38:54] Speaker 01: They all work together. [00:38:56] Speaker 01: They all eat together. [00:38:57] Speaker 01: They all go to briefings together. [00:39:01] Speaker 01: It's hard for me to imagine a case in which separate units would be thought of as inappropriate. [00:39:08] Speaker 01: I agree you have a little flexibility, but you have to show an appropriate unit, don't you? [00:39:15] Speaker 06: Yes, Your Honor. [00:39:17] Speaker 01: Oh, go ahead. [00:39:18] Speaker 06: This court, the board with this court's approval and Trident, the Fariot, Southern Power gives significant weight to bargaining history. [00:39:27] Speaker 06: These three units have existed for at least four years and these employees do completely different. [00:39:34] Speaker 01: Forgive me for interrupting you again. [00:39:36] Speaker 01: Would you agree that if the board relied only on bargaining history, that would be a blatant error? [00:39:46] Speaker 06: When I read Southern Power, [00:39:48] Speaker 06: The court's decision there seemed to turn entirely on bargaining history. [00:39:53] Speaker 07: Well, and isn't that really a burden question in disguise in the sense that the burden is on the party attempting to show that the historical units are no longer appropriate? [00:40:04] Speaker 07: And we've deemed it a heavy evidentiary burden. [00:40:12] Speaker 07: I guess it's really a question of not ab initio, is it appropriate? [00:40:18] Speaker 07: But has Stein borne its burden? [00:40:21] Speaker 07: But let me get at this a little bit. [00:40:23] Speaker 07: I have some of the shared concerns as Judge Silverman. [00:40:28] Speaker 07: What would be the affirmative rationale? [00:40:31] Speaker 07: It's just a little hard for those of us who aren't closer to this kind of scenario. [00:40:37] Speaker 07: What would be the benefit to the Teamsters [00:40:42] Speaker 07: to having different representation and to the laborers having different representation given that so many terms are similar. [00:40:51] Speaker 06: The terms are similar. [00:40:54] Speaker 06: But remember, in a successorship situation, we are allowing the employees to continue their choice of representative. [00:41:03] Speaker 06: Stein has imposed a representative on them, and these employees [00:41:07] Speaker 06: have chosen to be represented by the teamsters or the laborers for years. [00:41:11] Speaker 06: These were. [00:41:13] Speaker 07: Right, which is sort of the the that's the historical factor, but just thinking a little. [00:41:19] Speaker 07: And I recognize that that I mean, as I read the cases and the board cases, our cases and the board cases, it has a presumptive strong weight what the history has been. [00:41:30] Speaker 07: And there's a kind of path dependence. [00:41:31] Speaker 07: But [00:41:33] Speaker 07: I'm asking you to bracket that, recognizing that it's quite important to the board's position and bracket that and say, well, what are the other functional reasons? [00:41:42] Speaker 07: And I understand that because of pension rights are one of the things that are at issue here, what I'm referring to as path dependence is actually very important because someone shifting pension plans is detrimental. [00:41:56] Speaker 07: to employees. [00:41:58] Speaker 07: Other than these sort of what I'm calling path-dependent aspects, why would a group of teamsters want a different unit from a group of engineers on a work site? [00:42:11] Speaker 06: Well, Your Honor, I think you can just look at the collective bargaining agreements themselves. [00:42:15] Speaker 06: I know Mr. Prietel has represented that the collective bargaining agreements are basically the same, but they're not. [00:42:21] Speaker 06: there are different probationary periods. [00:42:23] Speaker 06: The teamsters and laborers had different probationary periods. [00:42:27] Speaker 01: How different? [00:42:29] Speaker 06: One was 30 days, one was 60 days. [00:42:32] Speaker 06: The laborers and the teamsters had shift differentials, but Local 18 does not have a shift differential. [00:42:38] Speaker 06: Local 18 included premium pay for two different kinds of operators. [00:42:44] Speaker 06: I can't remember one of either the teamsters or laborers also had premium pay for lead men [00:42:51] Speaker 01: Teamsters are guaranteed- Well, all that just goes to bargaining history. [00:42:56] Speaker 01: That doesn't go to the question of whether it's appropriate unit or not, does it? [00:42:59] Speaker 06: But it goes to Judge Pollard's question about- That's a fair point. [00:43:04] Speaker 01: It does answer Judge Pollard's question, but I'm pointing out that's just part of bargaining history. [00:43:10] Speaker 01: That isn't a question relevant to whether it's appropriate or one unit is appropriate. [00:43:18] Speaker 07: doesn't it? [00:43:18] Speaker 07: I mean, you're talking about what are the kinds of things that they're interested in negotiating for? [00:43:22] Speaker 07: And if they've come out differently, maybe they have different priorities. [00:43:26] Speaker 07: Is that the more general point? [00:43:28] Speaker 06: That is the more general point. [00:43:30] Speaker 06: Yes, Your Honor. [00:43:31] Speaker 01: I don't think that's relevant to appropriate units. [00:43:34] Speaker 01: You have to assume, you have to assume here that there's some reason why the teamsters and labor unions want separate representation. [00:43:45] Speaker 01: You don't know [00:43:46] Speaker 01: whether all the employees want separate representation, they may think there's a benefit to being represented by the operating engineers who typically get greater pay. [00:43:57] Speaker 01: So we don't know that. [00:43:58] Speaker 01: We don't know what the individual Teamster employees and the individual labor employees want. [00:44:06] Speaker 01: We know what the unions want, right? [00:44:10] Speaker 06: Well, Your Honor, let me say that there were union security clauses in these contracts, and it's [00:44:15] Speaker 06: As far as I can tell, that means that 100% of the employees had signed cards with the Teamsters or with the laborers. [00:44:22] Speaker 01: Well, of course. [00:44:23] Speaker 01: Of course, you don't have a separate secret ballot election, so you have no idea what the employees' real views would be with respect to whether they want representation by the operating engineers or Teamsters. [00:44:38] Speaker 06: We also know that under the operators, the new contract with Stein, [00:44:45] Speaker 06: these employees do not make the exact same wage. [00:44:47] Speaker 06: There are still distinctions based on who's a driver, who's a laborer, and who's an adult. [00:44:51] Speaker 01: Yes, but we don't, the board doesn't, in determining what's an appropriate unit, doesn't look simply at wage rates. [00:45:00] Speaker 01: They don't think wage rates are relevant at all on that question. [00:45:03] Speaker 06: No, but I'm specifically answering your point about why the- Why you're asking Judge Pillard's question. [00:45:10] Speaker 01: Why? [00:45:11] Speaker 07: I'm confused why [00:45:14] Speaker 07: Ms. [00:45:14] Speaker 07: Isbell, why it isn't relevant to what I took to be the underlying issue, which is community of interest of the unit. [00:45:25] Speaker 07: Is it an appropriate unit? [00:45:26] Speaker 07: One of the aspects is community of interest, or am I missing something? [00:45:30] Speaker 06: So far, no, Your Honor. [00:45:31] Speaker 07: One of the aspects is community of interest. [00:45:33] Speaker 07: And one of the artifacts or one sort of indicium of a community of interest would be if you end up with a collective bargaining agreement that has different kinds of terms, it might reflect the fact that those workers' interests are different from another worker's interests. [00:45:54] Speaker 07: And they result in different terms. [00:45:56] Speaker 07: Their interest is in getting into a secure job more quickly. [00:46:00] Speaker 07: Maybe they have more competitive power in the market, so they have a shorter probationary period. [00:46:04] Speaker 07: Their interest is in a higher wage. [00:46:07] Speaker 07: There's a finite pool from the employer. [00:46:11] Speaker 07: They want a union devoted to getting them a bigger piece of that pie. [00:46:14] Speaker 07: And that would be their common interest and their interest in contradistinction to someone else. [00:46:18] Speaker 07: Or am I conflating issues unwittingly here? [00:46:22] Speaker 01: May I add one point here? [00:46:25] Speaker 01: You should- I wouldn't mind hearing from Ms. [00:46:27] Speaker 01: Isby. [00:46:27] Speaker 01: Okay. [00:46:28] Speaker 01: Okay. [00:46:28] Speaker 01: But go ahead. [00:46:31] Speaker 01: Let her respond and then I'll say something about community of interest. [00:46:35] Speaker 01: The problem is the premise of your question is problematic because the board has specifically argued in this case, the community of interest, is it not relevant? [00:46:47] Speaker 01: Which has absolutely stunned me. [00:46:52] Speaker 06: It is not completely irrelevant. [00:46:54] Speaker 06: You are correct, Judge Silverman. [00:46:56] Speaker 01: Yet you argued in your brief that it is not a factor you look at in success. [00:47:03] Speaker 06: The board does not conduct an initial community of interest test as if it were the initial 9A bargaining situation. [00:47:11] Speaker 01: Your brief actually said community of interest is out. [00:47:16] Speaker 06: If Stein cannot prove that the historical unit is truly inappropriate and that is their burden, [00:47:23] Speaker 01: excuse me, Judge Pillard. [00:47:25] Speaker 01: The only reason I interjected was because they specifically made the argument that community of interest is irrelevant when we're talking about successorship. [00:47:35] Speaker 07: I take it that your position, Ms. [00:47:38] Speaker 07: Isbell, is that the board is not required to conduct the same community of interest analysis it would if it were determining for the first time whether a unit is appropriate. [00:47:52] Speaker 06: Yes, Your Honor. [00:47:52] Speaker 07: I'm just reading from your heading in your brief, which is B4. [00:47:58] Speaker 07: So that's the subordinate position in which you think we should be considering community of interest here. [00:48:13] Speaker 01: Actually, I thought you made a statement, in effect, that it was out. [00:48:16] Speaker 01: Community of interest was actually out. [00:48:18] Speaker 01: I remember that in your brief. [00:48:21] Speaker 01: But in any event, [00:48:22] Speaker 01: What I would love to know is, if community interest is out, what's in? [00:48:26] Speaker 01: You say the petitioner didn't prove the case, but I'm trying to figure out, prove to what standard? [00:48:34] Speaker 01: We said, in our case, does the unit conform reasonably well to other standards of appropriateness? [00:48:44] Speaker 01: That was what we thought the law was. [00:48:47] Speaker 01: That means you have to look at what your normal standards are, which are community of interest. [00:48:52] Speaker 01: I can't imagine any other standard but community of interest. [00:48:55] Speaker 01: What could it be? [00:48:57] Speaker 06: But in this case, the board determined that these units were appropriate. [00:49:05] Speaker 01: These employees have in accordance with what standard? [00:49:10] Speaker 06: Remember, we're not looking at [00:49:12] Speaker 06: every single community of interest factor the board might look at. [00:49:15] Speaker 06: But the board referred to the job functions, the separate bargaining history for at least 40 years, their separate identities. [00:49:24] Speaker 01: Different ways. [00:49:24] Speaker 01: You're back to bargaining history and you would admit you cannot rely on bargaining history at all alone. [00:49:31] Speaker 01: If you do that, you're in error, right? [00:49:34] Speaker 01: It cannot be relied on alone, but it gets significantly more- Okay, well yes, you're just describing things that all translate into bargaining history. [00:49:42] Speaker 06: But Your Honor, I guess I disagree. [00:49:45] Speaker 07: I mean, seriously, I'm not trying to crosstalk. [00:49:48] Speaker 07: And I know to some extent, Judge Silverman and I are seeming to directly be in conversation with one another. [00:49:54] Speaker 07: But I thought job functions were separate from bargaining history. [00:50:01] Speaker 07: And that was the first thing you mentioned. [00:50:03] Speaker 07: And I thought that was a pretty significant aspect of the inquiry. [00:50:07] Speaker 07: Am I wrong? [00:50:07] Speaker 06: I don't think you're wrong at all, Your Honor. [00:50:11] Speaker 06: These jobs are very different. [00:50:12] Speaker 06: They remain very different after Stein took over. [00:50:15] Speaker 01: Well, you're talking about jobs or job function. [00:50:19] Speaker 01: You're talking about. [00:50:20] Speaker 01: That's just the job functions, the work, the work that people are doing, the actual work they're doing. [00:50:26] Speaker 01: Yes. [00:50:27] Speaker 01: Doesn't doesn't the board resist any units focused only on job duties as well? [00:50:36] Speaker 01: I thought over and over again, the board rejected that notion. [00:50:40] Speaker 06: Your honor, the board rejects the notion of having a unit that is completely defined by job classification. [00:50:47] Speaker 06: So if you look at Trident, those employees were doing exactly the same work. [00:50:51] Speaker 06: The only thing that differentiated them was where they were hired. [00:50:54] Speaker 06: That won't fly. [00:50:55] Speaker 06: But if the employees are doing completely different things, which these employees are. [00:50:59] Speaker 01: Different things or different, isn't the question always whether they're interrelated? [00:51:06] Speaker 01: In other words, in a typical production and maintenance unit or production unit, [00:51:10] Speaker 01: You can have people performing every other, every job under the world, but if they're interrelated, functionally interrelated, they're always treated as a single unit. [00:51:22] Speaker 06: Not always, your honor. [00:51:23] Speaker 06: I mean, functional integration does receive weight from the board in initial bargaining situations. [00:51:29] Speaker 01: And if Stein... Well, what do you look at in a situation which is not initial? [00:51:35] Speaker 01: I think there's a big, big, big gap in the board's position. [00:51:39] Speaker 01: I think you're relying on only bargaining history. [00:51:44] Speaker 01: Because everything else you focus on, different job duties, is irrelevant in the typical bargaining unit determination. [00:51:54] Speaker 06: I'm sorry, I disagree. [00:51:56] Speaker 06: Job duties and what employees are actually doing day to day? [00:52:00] Speaker 01: Yes, what they're doing. [00:52:02] Speaker 01: The question is whether they're interrelated. [00:52:04] Speaker 01: Isn't that the issue? [00:52:06] Speaker 06: That is not the final question for the board here. [00:52:11] Speaker 01: I know it's not here, but it is typically. [00:52:15] Speaker 06: In an initial 9A situation, not in a successorship situation, Your Honor. [00:52:19] Speaker 01: Yeah, and what is the standard in a successorship? [00:52:23] Speaker 01: This is what we said. [00:52:24] Speaker 01: We said reasonably well connected to other standards of appropriateness. [00:52:30] Speaker 01: So you look at your other standards of appropriateness, [00:52:33] Speaker 01: And I put it to you, if this case came up in an initial situation, a regional director would laugh out loud at the notion that it would be three separate units. [00:52:45] Speaker 01: Isn't that correct? [00:52:47] Speaker 06: I am not entirely sure. [00:52:49] Speaker 06: I know that if a union came in and petitioned for one plant-wide unit, that would likely be approved. [00:52:56] Speaker 06: But this is not a situation where one union is petitioning for a plant-wide unit. [00:53:01] Speaker 06: This is a situation where these employees have had three unions for more than 40 years. [00:53:05] Speaker 01: That's the bargaining history. [00:53:07] Speaker 01: What other standard do you have? [00:53:09] Speaker 06: What they actually do. [00:53:11] Speaker 06: I don't know what their pensions and benefits. [00:53:17] Speaker 06: They are I see I've gone I'm starting to go over my time. [00:53:22] Speaker 07: That's all right. [00:53:27] Speaker 07: In terms of the pension, we don't get there if we don't find this to be governed by Byrne's obligation to bargain with the three unions. [00:53:38] Speaker 07: But it was just hard for me to envision concretely what the implications are for workers who have been under one collective bargaining agreement and one pension plan and then are shifted to maybe an equally good one, but it's a different one. [00:53:56] Speaker 07: How is it that they're, that it, how does it work if they've, if there's been a period of time that they've accrued rights and, you know, some of the, apparently some of the teamsters and labor say it disadvantages them, even though they have presumptively and equally good pension plan, they have a different one. [00:54:16] Speaker 07: Can you just explain that a little bit in concrete terms? [00:54:21] Speaker 06: Unfortunately, I can't because in terms of exactly what will happen, [00:54:26] Speaker 06: I don't know. [00:54:26] Speaker 06: I know this is unfortunate for the employees, but I also know that Stein could have decided they would all be in private pension plans or have no pension plan whatsoever. [00:54:37] Speaker 06: As long as it announced before making the offers to hire, it could do that. [00:54:44] Speaker 07: Under the determination that they had not forfeited their right to set initial terms and conditions. [00:54:50] Speaker 07: Right, Your Honor. [00:54:52] Speaker 07: Yeah. [00:54:54] Speaker 07: Neither here nor there on this question of unit appropriateness. [00:54:59] Speaker 04: Can I ask you about the jobs? [00:55:02] Speaker 04: So it strikes me that here, the different units involve people who are doing fairly similar jobs, point one, and point two, the work is highly integrated. [00:55:25] Speaker 04: And we've talked about integration and on similarity of the jobs you have in one unit, people who are driving fuel trucks in another unit, you have people who are driving dump trucks and water trucks doesn't strike me as completely apples and oranges. [00:55:47] Speaker 04: And in that respect, [00:55:50] Speaker 04: this case seems a lot like Indianapolis MAC. [00:55:55] Speaker 04: You have the parts people and the service people and they work hand in glove together and the jobs aren't completely different. [00:56:07] Speaker 04: You have some degree of crossover and that's the situation in which the board said, [00:56:16] Speaker 04: notwithstanding the history of separate units, even in a burn situation, this has to be one plant-wide unit consistent with a lot of things you've said in the non-burns context about plant-wide units. [00:56:36] Speaker 06: In Indianapolis, Mack, I think you're right. [00:56:38] Speaker 06: Those units were bargained together before the successor came in. [00:56:43] Speaker 04: That's the one fact that sort of helps distinguish maybe, but there are a lot of similarities between Indianapolis MAC and this case. [00:56:53] Speaker 06: Well, in Indianapolis MAC, those employees were doing each other's work. [00:56:59] Speaker 06: And it was a parts and service case. [00:57:01] Speaker 06: So the board has traditionally put parts and service employees together. [00:57:06] Speaker 06: It just traditionally does. [00:57:08] Speaker 04: But they were true, but you've also traditionally said plant wide units are favored, right? [00:57:17] Speaker 04: So we have the same difficulty, which is on the one hand, you have default rule for a broader unit. [00:57:26] Speaker 04: On the other hand, you have a strong preference for following history and we just have to balance those. [00:57:33] Speaker 06: And in Indianapolis Mac, those employees were doing each other's jobs. [00:57:36] Speaker 06: The parts people sometimes did mechanic work, the mechanics sometimes did the parts work. [00:57:41] Speaker 06: Here, before Stein took over, there was no interrelationship between the jobs. [00:57:46] Speaker 06: Only the teamsters drove the dump trucks. [00:57:48] Speaker 06: Only the laborers did the laborer's work. [00:57:51] Speaker 06: After Stein took over. [00:57:53] Speaker 04: Well, except that at page 31 of your brief, you say that the cross training and cross jurisdictional work [00:58:02] Speaker 04: that happened after succession was not as novel as Stein suggests. [00:58:08] Speaker 04: And you go on for the rest of the page about some degree of blurring of functions, even pre-succession. [00:58:15] Speaker 06: Right, because sometimes TMS needed other drivers when there weren't enough Teamsters. [00:58:21] Speaker 06: But on a regular basis, other people weren't driving the Teamsters trucks. [00:58:28] Speaker 06: So here, you've got a much more distinct [00:58:31] Speaker 06: and separate job functions before Stein took over. [00:58:36] Speaker 06: After Stein took over, they did some cross-training. [00:58:38] Speaker 06: But remember, by three months after they took over, they had only cross-trained six of 60 of their employees. [00:58:47] Speaker 06: And their own manager said even those employees were still doing primarily their traditional work. [00:58:52] Speaker 06: So the laborers were still doing primarily their laborer's work. [00:58:56] Speaker 01: Well, of course, but that's the advantage of cross-training. [00:59:00] Speaker 01: you could get much greater efficiencies, which may be one of the reasons why Stein was able to underbid others to get the job because he thought he saw the efficiencies that could be, in fact, there was testimony to that effect. [00:59:17] Speaker 01: He saw the efficiencies could be gained by interrelations and cross-training. [00:59:24] Speaker 01: I mean, if you could drive one of the sophisticated [00:59:30] Speaker 01: piece of machinery, you could drive a truck or vice versa. [00:59:34] Speaker 01: They could teach back and forth. [00:59:36] Speaker 01: And laborers could be taught to do some of the more sophisticated work too. [00:59:42] Speaker 06: And I will point out that this is one of the examples that go to why these employees have different bargaining interests. [00:59:49] Speaker 06: The laborers who are now operating the big pieces of machinery that was formerly operator's work are still making labor's wages. [00:59:57] Speaker 06: An operator makes operator's [00:59:59] Speaker 01: Well, that goes to the new negotiations on the part of the operating engineers. [01:00:07] Speaker 01: You'd see what would happen in the next collective bargaining agreement. [01:00:12] Speaker 01: My experience would tell me that the operating engineers would bargain to get the wage rates up for both teamsters and laborers because they're the highest paid. [01:00:25] Speaker 06: I have [01:00:27] Speaker 06: no indication that that will be true. [01:00:28] Speaker 01: You don't know. [01:00:29] Speaker 01: You don't know, of course. [01:00:30] Speaker 01: That's speculation. [01:00:33] Speaker 01: But if we conclude that the board did not examine the existing situation, looked only to the changes, that would be, under our law, a demonstrable error, wouldn't it? [01:00:50] Speaker 06: If you were to find that, [01:00:53] Speaker 06: then I think you should remand for the board to make that determination. [01:00:57] Speaker 06: But I think if you look at page 29 of the joint appendix, which is a page of the ALJ's decision, the ALJ did consider whether or not those units were, before the changeover, were appropriate and found them to be, to reasonably comport with. [01:01:15] Speaker 01: In conclusion, just a couple sentences, right? [01:01:18] Speaker 01: I'm sorry, what page? [01:01:19] Speaker 06: 29. [01:01:21] Speaker 04: I thought the ALJs analysis was purely comparative. [01:01:27] Speaker 04: The boards is arguably not, boards is very cryptic and arguably not, but I thought the ALJs was just purely comparative. [01:01:35] Speaker 06: I think if you look at the board's footnote where it says basically the work classifications and then read joint appendix 29, the ALJ, [01:01:45] Speaker 06: fills in with a little bit about duties and the separate identities. [01:01:50] Speaker 04: Okay, I'll take a look. [01:01:51] Speaker 06: I think in a successorship situation is all he had to do. [01:01:56] Speaker 07: And I mean, in a sense, this is, I was, you know, applying a lot of the law, thinking about this with a lot of the law about, about deference and the burden, but in Catholic asphalt, for example, [01:02:13] Speaker 07: the board finds that the Teamsters unit is, you know, they're under similar supervision. [01:02:23] Speaker 07: There's a lot of similarities, but they end up looking at how the mere change in ownership shouldn't uproot bargaining units that have enjoyed a history of collective bargaining. [01:02:35] Speaker 07: And I mean, the factors here just don't seem that different. [01:02:44] Speaker 06: I would agree, Your Honor. [01:02:46] Speaker 07: All right. [01:02:47] Speaker 07: Further questions for Ms. [01:02:48] Speaker 07: Isbell? [01:02:51] Speaker 01: Oh, thank you. [01:02:53] Speaker 04: One second. [01:02:56] Speaker 04: No, I think I'm good. [01:02:59] Speaker 06: Thank you all. [01:03:09] Speaker 07: All right, so we told the petitioners that we would give them some limited amount of time for rebuttal. [01:03:23] Speaker 07: So we'll have first from Mr. Pritel. [01:03:26] Speaker 05: Thank you, Hunter. [01:03:28] Speaker 05: Catalog gas fault was a perfectly clear successor case. [01:03:31] Speaker 05: Totally different scenario. [01:03:33] Speaker 05: From the outset, they absorbed what existed preceding it. [01:03:39] Speaker 05: Judge Silverman, you asked on the diversion question. [01:03:41] Speaker 05: I know it's a diversion question, but did Stein challenge the predecessor units right out of the gate? [01:03:46] Speaker 05: We did. [01:03:47] Speaker 05: I had conversations with the, I was the person who had the conversations with the lawyers for the laborers and the teamsters and said, give me cards, give me something that show you had majority support. [01:03:58] Speaker 05: Not only that at the hearing, we issued subpoenas to them, which the judge allowed initially saying, yeah, that's an issue here. [01:04:04] Speaker 05: That's in play here. [01:04:06] Speaker 05: And nothing was produced in terms of any cards, [01:04:09] Speaker 05: any certification by the board, anything to show that they had any majority interest at any point in time. [01:04:15] Speaker 05: We got nothing from the subpoenas. [01:04:19] Speaker 05: Judge Pollard, you asked about the benefits, which I understand would be a concern to an employee. [01:04:23] Speaker 05: But at page 12 of our reply brief, there's a case pretty much dead on point, AC pavement striping by the board, where it said that the fact that the employees received fringe benefits based on their union affiliation [01:04:37] Speaker 05: rather than on their assessment of their skill or aptitude is not a community of interest factor that needs to be considered. [01:04:45] Speaker 05: And finally, my colleague mentioned as an example, the hotels. [01:04:51] Speaker 05: I don't have my brief to the administrative law judge, but I could tell you it was much, much, much longer than the brief I was allowed to file here. [01:04:57] Speaker 05: And in it is a case on a hotel from the advice section of the NLRB that squarely held that, you know, the differentiations between [01:05:07] Speaker 05: what used to be a combined unit, and then it was taken over at the Aladdin Hotel in Vegas, where you had front office people, culinary, maids, porters. [01:05:18] Speaker 05: And the way the employer had configured that into being under one kind of like central management was enough to defeat the predecessor's history of a separate bargaining units between those different units. [01:05:33] Speaker 05: I can't remember the name of the case. [01:05:34] Speaker 05: I don't have it with me now, but it is in my brief to the administrative law judge. [01:05:37] Speaker 07: I think it's Jean G G corporation. [01:05:41] Speaker 05: Yes. [01:05:41] Speaker 05: Yes. [01:05:41] Speaker 05: G G corporation. [01:05:42] Speaker 05: Yes. [01:05:43] Speaker 05: Yes. [01:05:45] Speaker 05: And, and finally, just on the functional, I know everybody's all the board is particularly hung up on, well, how much did you really get into the training? [01:05:54] Speaker 05: Understand that they only took a snapshot for a very limited period of time in both Benson contracting, which was not a burns case. [01:06:00] Speaker 05: I'll can see that it was an eight F to a nine a case. [01:06:03] Speaker 05: But Deferior Paper was a Burns case. [01:06:08] Speaker 05: The only thing that happened there is the employer announced in a handbook and said, we are going to stop this segregation siloing of work and we're going to have efficient, functionally integrated workforce. [01:06:18] Speaker 05: They announced it in a handbook without even implementing it. [01:06:21] Speaker 05: And that was a consideration by this court in saying, we question whether these units were appropriate. [01:06:29] Speaker 05: I thank the panel for its time. [01:06:31] Speaker 05: If there's any other questions, we'd be happy to answer them. [01:06:34] Speaker 07: Other questions? [01:06:37] Speaker 07: All right, and we'll give Mr. Fidel. [01:06:41] Speaker 07: No, have I mispronounced it again? [01:06:43] Speaker 03: That is a fine pronunciation. [01:06:48] Speaker 03: Not to belabor the point, but just a piggyback on Mr. Prietel's discussion regarding the post-merger training to point out the limited period of time that we were allowed to introduce the evidence regarding that post-merger training. [01:07:02] Speaker 03: To be clear, the concept of instantaneously cross-training a Teamster to perform an operator's work or a labor to perform Teamster's work is not possible. [01:07:13] Speaker 03: By virtue of the nature of the jobs being performed, the skills that are necessary to each job, it takes an incredible amount of time, more so than three months to fully train and cross-train each employee in the performance of its co-employee's duties. [01:07:29] Speaker 03: This is especially true when you're talking about the operation of heavy equipment in the context of a slag reclamation project. [01:07:37] Speaker 03: In those circumstances, it would not be uncommon to take months or even a year for an employee to become fully versed in the ability to operate the equipment necessary to perform job duties inherent to an operator's position. [01:07:52] Speaker 03: Same so for an operator who has spent his entire time inside the cab of a piece of equipment [01:07:56] Speaker 03: to be able to learn the job duties of a laborer or teamster, it takes a significant period of time. [01:08:02] Speaker 01: Council, what did you think of the board's lawyer's argument that you could have a separate unit based on job titles? [01:08:14] Speaker 07: Job titles, I don't believe she said that. [01:08:16] Speaker 07: I believe she said based on job functions. [01:08:20] Speaker 01: Excuse me, job titles or functions, either one. [01:08:23] Speaker 03: It has been our experience that the only [01:08:25] Speaker 03: field where you will see collective bargaining agreements and determined by job titles and functions are in the construction industry, where there are specific jobs and specific duties attached to each member of a specific craft. [01:08:41] Speaker 03: Under ADEF. [01:08:42] Speaker 03: Correcting them, which we believe may have been the underlying collective bargaining arrangement that gave rise to the collective bargaining agreements between all three employees. [01:08:53] Speaker 01: I apologize for [01:08:54] Speaker 01: equating job titles and job functions. [01:08:58] Speaker 01: But I think of the concepts as quite similar. [01:09:06] Speaker 01: But we don't look to individual functions in developing a bargaining unit, as I understand the board never does. [01:09:15] Speaker 01: They look at the inner relationship, because in a typical factory, you might have 20 different jobs. [01:09:21] Speaker 01: or in a specific site, you might have 20 different jobs. [01:09:24] Speaker 01: The question is, or as for the board, how do they interrelate, right? [01:09:28] Speaker 01: Isn't that correct? [01:09:29] Speaker 03: Yes, Your Honor, I think it's a question. [01:09:31] Speaker 03: They're all butchering the same ox. [01:09:32] Speaker 03: So to the extent that they are all employees, all working on butchering the same ox, one may start at the head and one may start at the tail, one may use a big knife, one may use a small knife, they're still functioning integrated. [01:09:45] Speaker 04: So you're saying it's completely irrelevant [01:09:50] Speaker 04: to a unit assessment, the degree to which the different jobs are similar or not in what they actually do? [01:10:03] Speaker 03: I'm not saying it's completely irrelevant. [01:10:05] Speaker 03: It is just not determinative. [01:10:07] Speaker 04: Okay. [01:10:11] Speaker 04: I thought that was a good fact for you and that when you start arguing that it takes [01:10:18] Speaker 04: months and months and months to train one kind of worker to do the job of the other. [01:10:23] Speaker 04: That actually is you're arguing against yourself on that point. [01:10:27] Speaker 03: Well, your honor, I believe the point making that is, is that for the employer to actually take the time in the middle of trying to operate its business and continue its business operations of keeping up with the steel mills production of slide processing. [01:10:41] Speaker 03: That's why [01:10:42] Speaker 03: And in order for a new employer to cross train its employees while still doing that, it does not happen overnight. [01:10:48] Speaker 03: And it was inappropriate for the ALJ and for the board to limit the evidence of that cross training to a 90 day period. [01:10:54] Speaker 01: I gather your argument is what the relevant question is what your plan is, not how far you have effectuated it in three months. [01:11:04] Speaker 03: I believe it is, what evidence do you have of effectuating the plan that you have in place? [01:11:08] Speaker 03: Yes, Your Honor, it would be considered. [01:11:10] Speaker 03: What is your stated plan and then what steps have you taken to complete that stated plan? [01:11:17] Speaker 07: All right. [01:11:18] Speaker 07: Ms. [01:11:19] Speaker 07: Spana. [01:11:21] Speaker 07: It sounds like it would be helpful for us if you would, if you have anything to say about it, if you would focus on the question of unit appropriateness and whether Stein has met its burden here, or maybe you don't have a dog in that fight. [01:11:36] Speaker 08: Well, we actually, we had filed a petition for review on only, you know, two narrow points regarding the board's order. [01:11:47] Speaker 07: But otherwise we're supportive, so we don't. [01:11:49] Speaker 07: You're supportive, right. [01:11:51] Speaker 08: So at this point, given that the discussion up to this point is not from the, um, the board did not focus on the areas that we had filed our petition for review on, um, we're content to rest at this point. [01:12:05] Speaker 08: Thank you for your time. [01:12:07] Speaker 07: Great. [01:12:07] Speaker 07: Thank you. [01:12:08] Speaker 07: Thank you all very much for very, uh, instructive argument. [01:12:13] Speaker 07: The case is submitted.