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Case number 21-1209, International Brotherhood of Boilermakers, Ironship Builders, Black Space Forgers and Helpers, Local 627 Petitioner versus National Labor Relations Board.

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Mr. Rosenfeld for the petitioner.

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Mr. Heller for the respondent.

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David Rosenfeld for the petitioner.

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Second time here.

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This case has been going on since 2010 when this dispute began.

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We're only looking for a remand so that the board can reconsider its decision and decision come up with a more rational explanation of what happened here.

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I think the board misunderstood to some degree what Section 8F really expects, and that is that if an employer wants to either go non-union, which they're permitted to do, that is to go open shop, or sign with a different union, there's a process.

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And there are two cases we cited in the brief that kind of explain and reflect this process, although it was not done correctly by the union involved.

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And that is if the employer already has a workforce, and the employer wants to shift unions, and in that case, it was an employer, two employers, Garner Morrison and Raymond Currier, they both cited in the brief, wanted to dump the painter's union and go with the carpenters.

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So they recognized the carpenters, but the important difference was that they didn't

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destroy, terminate, discharge their workforce.

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Seamless transition to the carpenters.

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One day they're represented by the painters, the next day by the carpenters.

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The problems in the case come from the way the carpenters implemented their agreement because they asserted union security and some other provisions prematurely and lawfully.

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Problems in this case.

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If those two cases illustrate that the proper way to deal with this kind of transition is you keep the workforce

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You apply the new contract, the new terms of the contract.

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If there's union security, you apply that correctly, and it's a seamless transition without any discharge of the employees.

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Doesn't the case boil down to a fact question about why these welders were let go?

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You say it's because of their union affiliation.

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The other side says it's because of the 8F policy.

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It's just a fact question that was resolved against you.

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If there is a fact question, the question is, what was the reason for the termination?

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Right.

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And I think the board kind of mangled it trying to respond to that question.

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For example.

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You don't think the board answered that question adversely to you?

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The board answered that question adversely.

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On a fact question?

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Yes.

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But it's rational for accepting it.

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The board said was that the employer had a past practice

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of operating under the terms of a collective bargaining agreement.

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What the board didn't find, however, and couldn't was what happened if the company had a policy or practice of what happens if there wasn't an agreement in effect.

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But we do know that the majority in the decision reflects on the fact, because this court said that, that there were times when the employer had operated without the terms of an agreement because it kind of said, we have a good relationship with unions.

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We expect there'll be a contract.

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Non-employed agreement.

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And that testimony is actually going appendix 152 with the president of the company, man named Wilson said, yeah, there have been some times in the past when we've operated without an agreement.

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And so I just want to just catch this question.

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I think was, do you have any dispute with the board other than over that?

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And I think the answer is,

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you do not have any dispute with the board other than that.

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We have lots of disputes about the way they applied the factual findings here in terms of legal analysis of what happens as to why these employees are terminated.

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And the board's finding was that they were terminated because the employer didn't operate without the terms of an agreement.

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But we know that that's both inaccurate because there were times when it operated and we know that- Just a little bit more precisely,

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the board found that the general counsel has failed to demonstrate anti-union motive, which is the essential element of your claim.

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And I think the record convincingly demonstrates to the contrary for a number of reasons.

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Sure, and I mean, I promise I'll let you argue the facts, but I'm just trying to establish that that's what we're talking about.

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But let's look at this gap period argument for a minute.

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Although client dredging says we only operate under the terms of an agreement, they don't establish and say, what happens if we don't?

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But what we do know is that every time for the last 25 years, when there's been no work available, there's never been a discharge.

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It's always been allowed.

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And that's reflected in about 15 pages in the joint appendix from where we have these employee cards showing their work history.

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And you'll see some workers going back to the 1990s

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who were laid off or lack of work came back laid off lack of work and one kind of irony about this case if you look at 399 400 a couple other places in the record you'll find that some of these workers were pipe fitters who were laid off and then rehired laid off and rehired and then they became boiler makers and they were laid off and rehired record at least j-155 tells us that you're calling layoff

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they, in fact, would have to go back through the union hiring hall before they would get dispatched again.

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Is that right?

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Yes.

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And that's what was the catch here, Your Honor.

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Had they been terminated in this, when you're terminated, you also just have to go back through the union hire, say a contract ends, you're terminated, you go back through the union hiring hall to get sent back out again under NADAF.

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Subject to complying with the hiring hall requirements.

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Sure, sure, sure.

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But you go through, well, let's,

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That just confirms my point.

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You have to go through the hiring hall, which means you have to meet hiring hall requirements.

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Not in a layoff situation.

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But they did in this case.

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As I said, J-155, when they were laid off in previous instances, layoff meant we were done.

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We'd go back to the hiring hall if we're going back out again.

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That meant if you were laid off and you didn't have work for Hawaiian Draining, you could go back to hall and find work elsewhere.

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But when Hawaiian dredging laid these workers off, it would often recall them directly because it wanted to keep the same workforce.

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And that sort of animates the... Where is that in the record?

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Pardon?

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Where is that fact in the record?

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It's not.

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They would recall them directly rather than the testimony we have that they would go back to the hiring hall.

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I thought that was a reference to going back to the hall.

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Maybe that's what it was.

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But you just made a different representation.

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I'm wondering where that is.

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I don't think the Collector Bargainree on this in the record required that in a layoff, the employer had to call the hall because there's nothing on those slips indicating that the hall was called and that they were referred as new hires because they weren't treated as new hires.

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I'm sorry.

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One more time.

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You say the collective bargaining agreement said you don't have to go back to the hiring hall.

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I haven't looked at it in a while, but the Boilermaker agreement, which is the one that applied here, did not require that workers went back to the hall to go back to a former employer for whom they've worked.

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It did require they go back to the hall to be dispatched to a new employer.

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On this point, what do you do with footnote 29 of the board's decision

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which says that in this case, there would have been no difference in the worker's perspective between a layoff and a discharge.

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Well, there wasn't quite a big difference because they were discharged.

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They had no reason to believe they'd never go back to Hawaiian dredging.

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They were formally severed.

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They had no knowledge that they could ever be rehired.

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And what we do know is that that was contrary to actually what Hawaiian dredging wanted.

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They wanted to keep the workers.

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But here, your honor, is what happened.

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The day after they sent the letter of termination, we suspect this was, I mean, they knew what was going on here.

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They're a very experienced construction industry employer.

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They met with the pipe fitters the next day and said to the pipe fitters, can we rehire, can we bring back our employees?

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And Reggie Castanaras, the business manager, said, under no circumstances can you do that.

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And this is what is critical to this case and which is,

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Contrary to the boards on the board express, he finds that at no point did he ever say that you had to be a full member of the union, because we know based on union starts and actually an earlier portland maker case called portland maker's local 749.

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This court decided in 72 is before I started practice that you can't condition referral on membership.

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You can condition it and other things.

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And Castaneda says repeatedly,

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that as a condition of these guys getting referred, they have to join the union said membership.

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This is it.

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The record at one 52, it's at when, when, when this case was pending, why judging file the motion for summary judgment and tax Mr. Castaner as an affidavit was joined appendix three 19.

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They met the requirements of membership.

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He states in his application that it would refer all qualified individuals who completed the local 675 membership application process.

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But they knew from February 18th on that the pipe bidders had imposed an unlawful requirement on rehiring them.

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And we know that the boiler maker.

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Maybe I'm missing something very basic, but I thought it was just built into ADAF that

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the union and the employer can require workers to be a member of the union as a condition of getting that work?

[00:10:01] Speaker 02:
No, but ADEF says, yes, you can condition it, but not initially.

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You have to let them have this grace period.

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Seven day grace period.

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Right.

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But the problem with Mr. Castaneda said, unequivocally, both in the trial testimony and his testimony,

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hold the company that on February 18th, subsequent February 23, no membership application is a condition of referral.

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We don't allow people to sign up until they've met the application process.

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They've gone through an interview and they've passed the welding test.

[00:10:34] Speaker 04:
But that doesn't mean necessarily they had to be sort of full-blown members of the union.

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That could be that it's allowed NAIDF or you

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I'm actually not joining the union, but you have to pay certain fees and then you go through the hiring hall.

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And that may have been, it's not crystal clear what the reference, how membership was being used in that letter was.

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It could have included both the formal members and the ones who are, have sort of a membership light with the union because they don't want to be full-fledged members, but still the union has an obligation to

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let them use the hiring hall and to refer them without discrimination through that hiring hall.

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And that's the point the labor board makes in the brief that if you read the collective bargaining limit, which isn't evidence, it suggests that full members isn't initially required only after eight days.

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The problem you have in this case.

[00:11:22] Speaker 04:
Well, it's not even after eight days.

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Someone could still say, I just don't like being a member of unions, but I will pay the required fees.

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And then the pipe fitters,

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And for moral makers, when they were running the hiring hall, we'll still have to let them use a hiring hall and refer them through in a non-discriminatory manner, right?

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Am I right?

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Right, you're right.

[00:11:40] Speaker 04:
OK, so we don't know that that's.

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That may have been all that was meant by that language.

[00:11:45] Speaker 02:
Well, we do know that because there's a place in the record where when Mr. Castaneros has asked that question in the trial transcript, he says expressly that it includes membership, full membership.

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That's what he says it means.

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I don't know what to do except to say that the pipe fitters understood that to mean full membership and an application.

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The word application is not a term of art, particularly what maybe is a term of art, but application means application to be a member.

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It doesn't mean application to pay dues and be a non-member.

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The word application means I'm joining the union.

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That's what Union Start says, that's what Boilermakers 749 say.

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They all say that.

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What is the relevance of this given that there was no agreement with the pipe?

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I know you think they may have been talking, but

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That fact wasn't found in your favor.

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But even assuming it was, there was no agreement yet with the pipe fitters at the time these terminations happened.

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So we're really looking at Hawaiian, we're not looking at pipe fitters intent.

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We're looking at Hawaiian dredging mindset at the time.

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That goes back to Gardner, Morris and Raymond, these other cases.

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Transitions between one union or the union.

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They're always seamless in the sense that the employees are always offered the opportunity to keep working.

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Wind dredging, instead of going through that process, which was well known in this under 8F construction industry, terminated the employees, discharged them, because they knew that the pipe fitters were going to impose this requirement.

[00:13:20] Speaker 04:
That's a fact that is not in the record.

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They knew that this was going to happen.

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It's just that that fact hasn't been found for you.

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So we can't rely on that.

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And what we can rely on is the fact finding that they were terminated because

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why in dredging's work, welding work had ended.

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It didn't have an ADEF agreement.

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It was not doing any welding work, whether it be for a week or a month or a year.

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We'll find Dresden's welding work was still in existence.

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In fact, the workers themselves closed the jobs down in a way to leave them open to restart them.

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They took the time to do the right thing and close them down safely.

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The work was there.

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It was just Hawaiian dredging chose not to do it.

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And as I said, the record shows that Hawaiian dredging never

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cease doing work that is ceased operating for whatever reason.

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It laid workers off to the expectancy of recalling them to bring them back to do that work for other work.

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And that happens routinely in construction jobs.

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Material isn't available.

[00:14:18] Speaker 07:
Whether how the employees kept working.

[00:14:20] Speaker 07:
But actually, I thought that there was something in the record about how during some period of time, why dredging kept asking boilermakers to have their employees show up to work and the boilermakers kept having their employees not show up.

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That's exactly what happened.

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The Boilermakers didn't believe there was an agreement, so they took job action.

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And I want to emphasize that that shows union motivation.

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When the letter was sent to the Boilermakers on February 17th, the company said, we just can't get an agreement.

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And there are internal memos in the record showing that they were quite dissatisfied with the bargaining strategy.

[00:14:56] Speaker 07:
I appreciate that.

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Let me ask a question very much on the abstract, even though I do think this is probably the case about disagreeing with that.

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Imagine it's not this case.

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Imagine there's a construction company.

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I just want you to tell me at the end of this, if any of this policy is illegal.

[00:15:14] Speaker 07:
I'm a construction company.

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I use ADAF.

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I have a policy.

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I do it for years.

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Here's what I do.

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I reach a collective bargaining agreement with a particular union.

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That union then basically picks which employees show up to work.

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I basically outsource my hiring to that union.

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Then that collective bargaining agreement expires.

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And at that point, I can terminate the bargaining relationship.

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I stop work.

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And at that point, there is no work ongoing.

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There's no work even to be done.

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I reach out to a new union.

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I reach a new collective bargaining with that union.

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And then start up work on my projects.

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And that union picks which employees will show up for work.

[00:16:05] Speaker 07:
Is anything about that illegal?

[00:16:07] Speaker 02:
That could happen that if the work totally dried up, basically shut my business down for a while and assigned with a new union, no problem, because I initially discharged my employees saying I've got no work, no prospect of work.

[00:16:21] Speaker 02:
But Hawaiian dredging policy, if I may use a few moments, was to operate union.

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And we're not disputing that.

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We understood that.

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But if I'm going to operate union, I'm going to pretty quickly, from February 17th, have a union to operate under to do my welding work, which I've paused.

[00:16:37] Speaker 02:
So it wasn't a matter that I didn't need the workers.

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It was that I was just pausing to sign with a new union.

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But in doing the pausing, I discharged my workers rather than saying to them, we're going to sign with a new union.

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We're laying you off.

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You may have work in the future.

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And what the board says is that the rationale was,

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why they said layoffs were not necessarily appropriate.

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Poor's rationale was unacceptable.

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They simply said, well, we don't need to, the employer didn't need to explain why layoff versus discharge.

[00:17:09] Speaker 02:
That's not a rationale because we all know, I think, that there's a huge difference to workers with your layoff expecting to come back or whether you've been permanently severed and discharged with no expectancy of coming back.

[00:17:21] Speaker 05:
So the fact that the employer discharged

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rather than laid off, even assuming they have a legitimate policy to operate only under a HF agreement.

[00:17:38] Speaker 05:
Your theory is, well, they didn't have to discharge that was harsher than necessary, and that tends to show anti-union animus.

[00:17:50] Speaker 02:
If harsher, it was inconsistent with past practice.

[00:17:54] Speaker 05:
But then don't we have to

[00:17:58] Speaker 05:
If that's the theory, there's also a lot of countervailing evidence about the contractor's efforts to bring these workers back, to get them through the pipe fitters testing, to make their facilities available to help that, to try to persuade the pipe fitters to cut some corners on their requirements.

[00:18:25] Speaker 05:
Why don't we consider all of that too?

[00:18:28] Speaker 02:
because the employer wasn't discriminating against the individuals as workers.

[00:18:32] Speaker 02:
In fact, the testimony was they wanted to keep the workers.

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They were the best available.

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What it shows is discrimination because they discharge them rather than keep them.

[00:18:42] Speaker 02:
They discharge them not because the contract terminated.

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They discharge them because they're going to sign with a new union.

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And in order to sign with a new union, they had to have a clean deck so that there wasn't this stumbling block.

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of keeping these workers.

[00:18:56] Speaker 02:
There's an old board case called Austin and Wolf that cited in the decision, which exactly this happened where employer terminated people.

[00:19:05] Speaker 02:
And the question was whether a new union could say, you have to terminate the employees.

[00:19:12] Speaker 02:
We're not going to sign with you.

[00:19:13] Speaker 04:
Yeah, but their determination was after the new union was in.

[00:19:15] Speaker 04:
That's the difference here.

[00:19:18] Speaker 02:
I can see your honor that that is a difference that it wasn't until the day after they sent the letter that they first said to them clearly they have to be members and they needed to hire to the.

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the boilermakers who had been discharged would have to wait a considerable period to be rehired.

[00:19:38] Speaker 02:
And the record shows it was more than a month before the first boilermaker, former boilermaker, was ever hired.

[00:19:44] Speaker 02:
But that was the way that Hawaiian dredging, experiencing the construction industry,

[00:19:49] Speaker 02:
implemented this policy of getting rid of the border makers, which we say they had a right to withdraw recognition.

[00:19:55] Speaker 02:
But what Jack Welch, Simcoe and those other cases teaches, you can go non-union, you can go open shop.

[00:20:01] Speaker 02:
I don't like that, but you have the right to it.

[00:20:03] Speaker 02:
But what you can't do in the process of going open shop, withdrawing recognition from another union is discharge the employees to effectuate that purpose.

[00:20:12] Speaker 04:
Sure, but they were not going open shop.

[00:20:14] Speaker 04:
It sounds like your argument between layoffs

[00:20:18] Speaker 04:
and discharge is that they once again should have done what you call one of these gaps.

[00:20:22] Speaker 04:
They should have done another one of these gaps that you talked about where they kept hiring or kept on payroll union members, even though they weren't working under an active ADF contract.

[00:20:37] Speaker 04:
So you're saying they had other gaps, they should have had another gap here.

[00:20:40] Speaker 04:
That's what the layoff point is.

[00:20:42] Speaker 02:
I'm not sure it's a gap.

[00:20:43] Speaker 02:
What Simcoe teaches... It would have been another gap.

[00:20:45] Speaker 04:
What you're saying is they should have, in the bridge between the two contracts, they should have kept the Boilermakers on and working, since they had work, rather than terminated.

[00:20:57] Speaker 02:
I know we're quite that far.

[00:21:00] Speaker 02:
What I think Simcoe teaches is that was a situation where the employer got rid of the IBW, but retained some of them.

[00:21:06] Speaker 02:
And the union had said, you can retain them all.

[00:21:10] Speaker 02:
They retained some, hired some others.

[00:21:12] Speaker 02:
And the board found that was all discriminatory.

[00:21:14] Speaker 02:
Finders, they had several choices.

[00:21:16] Speaker 02:
One, keep working, pay them whatever it wanted, and then sign to the pipe fitters.

[00:21:21] Speaker 02:
And from that date forward, contract governance.

[00:21:24] Speaker 02:
That's what some non-uniformities do.

[00:21:26] Speaker 02:
The other alternative was to keep the gap, keep the border maker contract in effect, sign with the pipe fitters and then say, now as of today, you're pipe fitters and you're working under the pipe fit agreement.

[00:21:37] Speaker 04:
They couldn't keep the unilateral, you mean they would unilateral just continue the prior contract?

[00:21:41] Speaker 04:
Is that what you're talking about?

[00:21:43] Speaker 02:
No, they couldn't terminate the contract with the border makers and continue all of it.

[00:21:49] Speaker 02:
They could continue to pay whatever wages they wanted

[00:21:52] Speaker 02:
Once they terminated the agreement with the Boilermakers from thence forward, they could keep the Boilermakers welding and say, you can keep working.

[00:21:59] Speaker 02:
I'll pay you $80 an hour.

[00:22:01] Speaker 04:
They wouldn't be there for that interim period as 8F employees.

[00:22:06] Speaker 02:
That's right.

[00:22:06] Speaker 02:
Well, they would be non-union employees.

[00:22:09] Speaker 02:
They could say to the Boilermakers, look, we're not going to fire you.

[00:22:11] Speaker 04:
They would have had to make a departure from their practice, like the gaps that you referred to before.

[00:22:17] Speaker 02:
But they would not have had to make a departure from the past practice when there wasn't work available.

[00:22:22] Speaker 02:
just laying people off, they could have continued to work.

[00:22:25] Speaker 02:
And I think as President Wilson says, they did have some times when there was no agreement in effect and they kind of expected to get one.

[00:22:32] Speaker 02:
I'm not disputing, but that's probably what went on here.

[00:22:34] Speaker 07:
Your proposal almost seems discriminatory against the pipe fitters.

[00:22:39] Speaker 07:
It's almost like you're saying the law requires the employer to discriminate against the pipe fitters union in favor of the boiler's maintenance.

[00:22:50] Speaker 07:
because under your proposal, the pipe fitters would not get to do what they normally do, which is decide who gets the job that day, who's whatever, most in seniority or whatever system they have with tests and et cetera.

[00:23:06] Speaker 07:
Your proposal would say to the pipe fitters, the boiler makers get to jump the line and you have to use them before you start picking which pipe fitters.

[00:23:17] Speaker 02:
That seems discriminatory against the pipe fitters union.

[00:23:19] Speaker 02:
Well, that's the way, of course, and that's what Austin will sense is that the new union can't say to the employer, we will only sign if you terminate employees so we can then refer our members out of our home because that here they were already term.

[00:23:36] Speaker 07:
That's right.

[00:23:36] Speaker 07:
That you're saying that they weren't allowed to terminate.

[00:23:39] Speaker 07:
They weren't allowed to discharge.

[00:23:41] Speaker 07:
And if the effect of that think is because you want to force

[00:23:46] Speaker 07:
the employer to force the pipe fitters to let the boilermakers jump the line.

[00:23:52] Speaker 02:
It's not jumping the line.

[00:23:54] Speaker 02:
It's giving them the right of not being discriminated against because they were boilermaker members by saying you lose your job because of your membership and you lose your job because we don't like the way your union acted in negotiations.

[00:24:08] Speaker 02:
You can't lose a job for it whether

[00:24:10] Speaker 02:
Grind dredging chose to sign with the iron workers, the pipe fitters, the operators, go open shop for a period of time or re-sign with the welder makers.

[00:24:18] Speaker 02:
It's just a basic opposition that the workers couldn't lose their jobs because you're choosing to go with another union.

[00:24:26] Speaker 04:
Thank you very much.

[00:24:27] Speaker 04:
We'll hear from the board now.

[00:24:28] Speaker 02:
Thank you.

[00:24:48] Speaker 00:
Good morning, your honors.

[00:24:51] Speaker 06:
Joel Heller from the National Labor Relations Board.

[00:24:55] Speaker 06:
After remand from this court, the board followed the court's instructions to consider certain credited evidence in the context of section 8F.

[00:25:04] Speaker 06:
And based on that evidence, the board reasonably concluded that Hawaiian judging did not violate the NLRA and dismissed the complaint.

[00:25:11] Speaker 06:
And most of the arguments the Boilermakers raise on appeal largely just matters not at issue in this case.

[00:25:17] Speaker 06:
The issue that is, the matter that is an issue in this case is that, as you were saying Judge Katz, motive and motive is a question of fact.

[00:25:26] Speaker 06:
Substantial evidence supports the board's factual finding that the employees were discharged because Hawaiian dredging's contract with the Boilermakers had expired and not because of their Boilermakers status.

[00:25:37] Speaker 06:
This was pursuant to Hawaiian dredging's longstanding practice of performing craft work only under a section 8F collective bargaining agreement.

[00:25:47] Speaker 06:
Now, everyone agrees that it was lawful for Hawaiian Judging to terminate its bargaining relationship with the Boilermakers at the end of the contract.

[00:25:55] Speaker 06:
And everyone agrees that it was lawful for them, Hawaiian Judging, at that point to cease operating work, or to cease welding work.

[00:26:03] Speaker 06:
That's what they did.

[00:26:03] Speaker 06:
And at that point, they had no, at least temporarily, had no need for these employees.

[00:26:09] Speaker 06:
And it was their decision what to do at that point, whether to lay them off, whether to discharge them until there was a new contract in place.

[00:26:16] Speaker 06:
And then they restarted as per their typical.

[00:26:19] Speaker 04:
Did the board find that they had a business justification for choosing one over the other?

[00:26:25] Speaker 06:
The board found that this policy about only performing work under a CBA was a legitimate business justification supporting the discharges.

[00:26:34] Speaker 04:
How does that support discharge versus layoff?

[00:26:37] Speaker 04:
I wasn't clear on that.

[00:26:38] Speaker 04:
That's the one thing I'm trying to figure out.

[00:26:40] Speaker 04:
I thought the board sort of said, whatever, they can choose, or at least the ALJ said they can choose between that.

[00:26:45] Speaker 04:
Your brief said the same, and I wasn't clear why that's.

[00:26:48] Speaker 04:
Why that's true.

[00:26:48] Speaker 06:
Right, essentially that is the case.

[00:26:50] Speaker 06:
It is the employer had a choice whether to lay off or discharge because nothing in the NLRA dictates what that choice should be.

[00:26:59] Speaker 04:
There can't be discrimination.

[00:27:03] Speaker 06:
Right, so long as it is not discriminatory.

[00:27:05] Speaker 04:
But when their letter says, hey, we got to do this because your union won't work with us.

[00:27:11] Speaker 04:
Well, then we all know they couldn't have been stopping welding for very long.

[00:27:15] Speaker 04:
They are a major contractor.

[00:27:17] Speaker 04:
So everyone had to know they weren't doing this for long.

[00:27:20] Speaker 04:
This was an interim measure.

[00:27:22] Speaker 04:
And so why isn't at least, well, the facts aren't the same as Austin, Austin Wolf.

[00:27:27] Speaker 04:
Why?

[00:27:27] Speaker 04:
Help me understand why the discrimination concern, you're discharged because you're Boilermakers.

[00:27:34] Speaker 04:
And we're done with Boilermakers.

[00:27:35] Speaker 04:
We can't work with Boilermakers leadership.

[00:27:39] Speaker 04:
We're going to have to get another union in here.

[00:27:44] Speaker 04:
And so you're gone, as opposed to you're laid off.

[00:27:47] Speaker 04:
How do we know the Austin wealth rationale doesn't apply in that context?

[00:27:52] Speaker 06:
And I think it's the point you were making before, is that in Austin wealth and the problem was there was something wrong with the new contract, with the new union had made an unlawful request to discharge these employees.

[00:28:11] Speaker 06:
That's not the case here because these employees were all discharged before the new contract was signed.

[00:28:16] Speaker 04:
So you're saying the board, it just, it seems to me, I can abstract out of it here.

[00:28:25] Speaker 04:
It seems to me a little surprising that the board would think there's such a sharp timeline.

[00:28:30] Speaker 04:
You know, if it was five minutes before we sign with union, I don't want to label the pipeline here.

[00:28:37] Speaker 04:
So I'm with union A,

[00:28:40] Speaker 04:
not working, can't get to an agreement with them.

[00:28:42] Speaker 04:
And so five minutes before I sign the agreement with Union B, I discharge all the Union A people.

[00:28:52] Speaker 04:
Are we sure that Austin Wolf rationale wouldn't apply in that context?

[00:28:56] Speaker 06:
So it's less a timing issue than it's like, what is the nature of the violation at issue?

[00:29:02] Speaker 04:
Because in Austin, we'll have a timing can be a fact.

[00:29:05] Speaker 04:
Timing and circumstances are a factor in discrimination.

[00:29:08] Speaker 06:
Right.

[00:29:08] Speaker 06:
But I guess my point is that whether the question is the, whether the discharge is unlawful is the question in this case, as opposed to whether the provisions of a, of the new contract are unlawful, whether the discharge is followed.

[00:29:25] Speaker 04:
Clearly you could have unlawful conditions in a new contract.

[00:29:28] Speaker 04:
That's a separate question.

[00:29:30] Speaker 06:
Exactly.

[00:29:30] Speaker 04:
I'm focused on the scope of the circumstances that the board is willing to consider and it's sort of Austin Wolf type analysis.

[00:29:41] Speaker 04:
maybe that one was easy because the union was right there saying, get rid of those people.

[00:29:45] Speaker 04:
But I assume the board wouldn't be so facile as to say, unless the union's right there on the record saying, get rid of those people, we could never infer discrimination based on how close the timing was between the discharge and the new contract coming in.

[00:29:58] Speaker 04:
Is that wrong?

[00:29:59] Speaker 06:
Is that right?

[00:30:00] Speaker 04:
I mean, they certainly circum, they could, they could.

[00:30:02] Speaker 04:
On a different record here, and I'm not suggesting this record, but on an appropriate record, they could say, if there's a close,

[00:30:10] Speaker 04:
It's a short time gap between the two of them.

[00:30:13] Speaker 06:
Timing is certainly a relevant factor in a discrimination analysis.

[00:30:18] Speaker 06:
Yes.

[00:30:18] Speaker 04:
And I would think the sort of the, was it one week or less between the two, between the firing and the signing?

[00:30:24] Speaker 04:
Was it one week?

[00:30:26] Speaker 06:
It was six days.

[00:30:28] Speaker 04:
Six, even less than a week.

[00:30:29] Speaker 04:
It was six days difference here.

[00:30:31] Speaker 04:
The reason I'm asking this question, so you said timing matters, that's got to be pretty short.

[00:30:35] Speaker 04:
That's a pretty fast union negotiation for a new contract.

[00:30:40] Speaker 04:
Sure.

[00:30:42] Speaker 04:
And so that's why I'm just reacting to your argument that the National Labor Relations Act says nothing about the choice between discharge and layoff.

[00:30:55] Speaker 04:
When in fact, I think the National Labor Relations Act says quite clearly, you may not choose discharge over layoff because of

[00:31:06] Speaker 04:
union membership.

[00:31:07] Speaker 04:
Can we agree on that?

[00:31:08] Speaker 04:
I agree.

[00:31:08] Speaker 06:
I agree with that.

[00:31:09] Speaker 04:
Right.

[00:31:09] Speaker 04:
And so, and then that because that because of is the motive and becomes the factual inquiry.

[00:31:14] Speaker 04:
But that's why I was reacting to it a little curious about why the board was sort of so quick in this.

[00:31:22] Speaker 04:
They get to make that decision given the very close, unusually close timing.

[00:31:28] Speaker 04:
I know they argue about who knew what when we knew six years, six days between we're done with your contract.

[00:31:35] Speaker 04:
And a whole new contract is pretty fast, at least in the cases I have seen.

[00:31:40] Speaker 04:
I mean, negotiations can go on for years sometimes.

[00:31:44] Speaker 04:
And so it seems to me when they say it didn't matter, that presupposes their answer on this.

[00:31:51] Speaker 04:
If there is no discrimination, it may not matter whether you discharge or lay off.

[00:31:55] Speaker 04:
Is that right?

[00:31:56] Speaker 04:
Yes.

[00:31:56] Speaker 04:
But they had to make a determination that the reason they chose termination rather than layoff was for a business reason and not a discrimination reason.

[00:32:05] Speaker 04:
But they didn't find a business reason for the layoff, or I'm sorry, for the discharge rather than layoff.

[00:32:11] Speaker 04:
They didn't find discrimination, but they also didn't find a business reason.

[00:32:14] Speaker 04:
They left a gap in there.

[00:32:15] Speaker 06:
They did not find a particular business reason, I agree, for doing the discharge versus the layoff.

[00:32:20] Speaker 06:
The reasoning is that it is the employer's choice in this circumstance, so long as it's not discriminatory, because the because of question would apply regardless of whether it was a layoff or a discharge.

[00:32:32] Speaker 06:
If these individuals had been laid off, we could be up here arguing that, well, this was a discriminatory layoff.

[00:32:39] Speaker 06:
rather than a discriminatory discharge.

[00:32:41] Speaker 06:
The analysis is similar.

[00:32:43] Speaker 06:
If they are targeted because of their union activity, it doesn't really matter whether they were targeted as a layoff or targeted as a discharge.

[00:32:50] Speaker 04:
And it's also important to note that... Are layoffs ever worse than discharges?

[00:32:55] Speaker 04:
But they have a worse than I'm not sure why it would be discriminatory layoff rather than you should.

[00:32:59] Speaker 04:
You should have fired them.

[00:33:01] Speaker 06:
No, my point was not.

[00:33:02] Speaker 06:
Yes, I don't think anyone would be arguing that you should have started rather than layoff.

[00:33:06] Speaker 06:
But if you had laid off laid them off, there could have been a question.

[00:33:10] Speaker 06:
Well, you shouldn't have actually taken any action against them.

[00:33:12] Speaker 06:
The way off itself was discriminatory.

[00:33:14] Speaker 06:
You should have.

[00:33:16] Speaker 06:
There should be no adverse action against these.

[00:33:18] Speaker 04:
I didn't know what's all right.

[00:33:20] Speaker 04:
Well, if your work is stopped, don't you have to do something with them?

[00:33:23] Speaker 06:
That was the board's point here is that they have the employer.

[00:33:26] Speaker 06:
We didn't have an option C. I mean, I suppose the employer could have continued paying these employees to not do work.

[00:33:34] Speaker 06:
I'm not sure they would have wanted to do that.

[00:33:36] Speaker 06:
And a point, though, about the layoff, one more point about the layoff or discharge is that what happened here isn't all that different from what happens under other circumstances.

[00:33:46] Speaker 06:
The testimony you were pointing to, Judge Malata, 155 of Fault, Iona, he testified that in past times when there had been a slowdown in work and they were

[00:33:58] Speaker 06:
They were temporarily let go, but there was no guarantee that they were going to be brought back to work to be recalled to work.

[00:34:04] Speaker 06:
He says that he wouldn't.

[00:34:06] Speaker 06:
In past instances, he had not been told that he would have been recalled.

[00:34:10] Speaker 06:
And then when the time did come to come back to work, he was both redispatched from the union.

[00:34:15] Speaker 06:
So that is similar to what has happened in the past.

[00:34:17] Speaker 06:
What happened to these employees here is similar to what has happened in the past.

[00:34:23] Speaker 06:
And it was a very, again, we're talking about timing, a short break.

[00:34:26] Speaker 06:
As soon as this contract was signed, at the same day it was signed with the pipe fitters,

[00:34:30] Speaker 06:
The employer, Hawaiian judging, was reaching out to these former employees and said, we have a new contract.

[00:34:35] Speaker 06:
There's a way to come back to work if you want.

[00:34:37] Speaker 06:
We don't actually know what it is you have to contact the pipe fitters.

[00:34:41] Speaker 06:
And that's another point.

[00:34:41] Speaker 06:
These employees were never told that they had to become immediate members of the pipe fitters.

[00:34:46] Speaker 06:
They were told by this testimony by the Hawaiian Judging official, Forrest Remy, that he didn't actually know what the practice was.

[00:34:53] Speaker 06:
They should contact the pipe fitters to find out the process they had to follow to come back to work.

[00:35:00] Speaker 05:
What might be a legitimate business justification for choosing discharge over layoff?

[00:35:09] Speaker 06:
What might, I don't want to speculate too much, but I guess the, well, again, this is me speculating.

[00:35:19] Speaker 06:
So there might be some.

[00:35:20] Speaker 05:
I'm just trying to, I understand there was no finding.

[00:35:23] Speaker 05:
I was trying to get a sense of why does that seem really inexplicable or does that seem like something one might expect?

[00:35:30] Speaker 05:
Well, a situation like this.

[00:35:32] Speaker 06:
Sure.

[00:35:32] Speaker 06:
I mean, like it hasn't happened in the past.

[00:35:36] Speaker 06:
I think with this employer, as far as we know.

[00:35:39] Speaker 04:
Sorry, what is the it that hasn't happened with this employer in the past?

[00:35:42] Speaker 06:
That employees were discharged at the end of a contract.

[00:35:46] Speaker 04:
You just said that they were discharged.

[00:35:51] Speaker 04:
They were discharged.

[00:35:52] Speaker 04:
I'm not sure how this terminology works in the ADEF context, but they had to go back.

[00:35:56] Speaker 04:
When the contract ended, they had to go back.

[00:35:59] Speaker 04:
They were done.

[00:35:59] Speaker 04:
It went on.

[00:36:00] Speaker 04:
This is what J 155 says went on unemployment, which I don't think maybe you can do in your light off, but you you went on employment, but had to go back through the union hiring hall for your next job.

[00:36:11] Speaker 06:
Yes, that was in situations where there was a there was no more work.

[00:36:14] Speaker 06:
It was not contract expiration situation.

[00:36:17] Speaker 06:
So there was still an ongoing contract, but the project had ended so there was no work for these employees to do.

[00:36:22] Speaker 06:
That's what is being discussed at J 155 and it's.

[00:36:27] Speaker 06:
So a no-work situation is different than a no-contract situation, or at least it could be.

[00:36:34] Speaker 04:
So there's different contracts, I guess, you're talking about the big 8F contract?

[00:36:38] Speaker 06:
The 8F?

[00:36:39] Speaker 04:
When you say no contract, you mean no 8F contract?

[00:36:42] Speaker 04:
I do, right.

[00:36:42] Speaker 04:
Okay, I meant contract.

[00:36:44] Speaker 04:
Oh, I see.

[00:36:46] Speaker 04:
They contract with other businesses.

[00:36:47] Speaker 04:
That's where the work comes from.

[00:36:49] Speaker 06:
Yes, sorry, that is what I meant.

[00:36:51] Speaker 04:
So the testimony you talk about when they say they would

[00:36:56] Speaker 04:
I told that they're done.

[00:36:57] Speaker 04:
There's no work on unemployment.

[00:36:59] Speaker 04:
Go back to Hiring Hall is when there was no 8F contract or when there was no subcontract for these purposes, just to decide.

[00:37:07] Speaker 06:
When there was no, I guess, work contract with the client between Hawaiian Judging and the state of Hawaii or Huba, rather than situations like here where there was no 8F contract because it had expired.

[00:37:18] Speaker 07:
Mr. Hallie, let me try again to answer this question.

[00:37:22] Speaker 07:
Imagine you are a screenwriter.

[00:37:26] Speaker 07:
When you're writing a movie about a law-abiding employer, realistic movie, law-abiding employer, owns a construction company, and ADF, like the bargaining agreement, expires.

[00:37:40] Speaker 07:
And in the movie, you write this.

[00:37:43] Speaker 07:
I'm choosing to discharge the employees after the expiration of this contract because what's a plausible rest of that sentence?

[00:37:55] Speaker 06:
So the employer could decide, um, it wanted to, well, if you didn't want these employees anymore, um, I know again, that's not the case here, not the facts of this case.

[00:38:07] Speaker 06:
Um, but if they didn't want to recall the same employees, they just, they wanted a fresh start and with a new group of employees and you know, maybe they didn't like those employees welding skills.

[00:38:19] Speaker 06:
So they wanted someone new, but that would be a plausible explanation of discharge versus

[00:38:26] Speaker 06:
versus layoff.

[00:38:27] Speaker 06:
Again, not the facts of this case, but we're not.

[00:38:32] Speaker 06:
Right.

[00:38:32] Speaker 06:
So that's, that's how I would answer the question in my... But they like their welding skills.

[00:38:37] Speaker 04:
They like their welding skills as we know we did here.

[00:38:39] Speaker 06:
Right.

[00:38:39] Speaker 04:
And it still is hard to figure out a business reason for discharge rather than layoff, isn't it?

[00:38:45] Speaker 07:
I was hoping you'd finish the sentence with something that was not inconsistent.

[00:38:48] Speaker 07:
because they went out of their way to help these boilermakers get through the pipe-fitting union hall, what do you call it, hiring hall system.

[00:39:01] Speaker 06:
I'll keep trying to think of that one, but it may be an unsatisfactory answer, but an answer is that so long as the NLRA doesn't

[00:39:10] Speaker 06:
prohibit them from making one choice for the other.

[00:39:13] Speaker 06:
They're free to make that choice for whatever reason they would like to.

[00:39:18] Speaker 06:
But why did they do it here?

[00:39:20] Speaker 07:
I'm not asking why they did it here.

[00:39:24] Speaker 07:
You can't read your mind.

[00:39:24] Speaker 07:
I'm asking why would a law-abiding employer do it in a way that's not inconsistent with the facts?

[00:39:30] Speaker 06:
Right.

[00:39:33] Speaker 06:
So the employer may have thought that, or an employer,

[00:39:41] Speaker 06:
may have thought that the employer may have thought that it could have been something having to do with the unemployment situation in Hawaii.

[00:40:10] Speaker 06:
that don't know anything about Hawaii unemployment law?

[00:40:13] Speaker 05:
Let me try it.

[00:40:14] Speaker 05:
Let me try the same question coming from the opposite end, the telescope, which is, I'll just stipulate a motive and a hypothetical and tell me whether it's lawful or not, which is the employer sets up the 8F contract, it expires.

[00:40:40] Speaker 05:
The employer fully intends and expects that a successor contract with a different union will be put in place in the relatively near future.

[00:40:53] Speaker 05:
That's what they want.

[00:40:56] Speaker 05:
They're happy with their workers.

[00:40:59] Speaker 05:
And the employer chooses layoff, sorry, discharge over layoff just to facilitate

[00:41:10] Speaker 05:
negotiations of the successor ADEF agreement with the new union.

[00:41:18] Speaker 05:
Is that impermissible animus against the old union or is that the employer doing exactly what ADEF allows, exactly what's baked into ADEF just to

[00:41:38] Speaker 05:
avoid, as Judge Walker said earlier, avoid a sort of hostility or disadvantage to the new union.

[00:41:47] Speaker 06:
I think that's that is could be permissible.

[00:41:50] Speaker 06:
I'm not saying it can't say that it would always be permissible.

[00:41:52] Speaker 06:
I think it depends since in this sounds like in this situation that there's kind of some understanding of what's already we have understanding of what's in the new contract.

[00:42:03] Speaker 05:
So of course, they just think

[00:42:05] Speaker 06:
You know, they just think there'll be a new contract in place in a week, because that's how things work.

[00:42:09] Speaker 06:
Right.

[00:42:10] Speaker 06:
And there's probably going to be one of these requirements that they get the new, they get folks to the new unions hiring on.

[00:42:19] Speaker 06:
Yeah, I suppose that could be a permissible.

[00:42:21] Speaker 04:
Well, that would depend on what they, why they thought it would facilitate contract negotiations.

[00:42:26] Speaker 04:
Right.

[00:42:26] Speaker 04:
I mean, the next union, right?

[00:42:28] Speaker 04:
That could be troublesome.

[00:42:30] Speaker 06:
There's always facts.

[00:42:31] Speaker 06:
There's always tricky facts.

[00:42:32] Speaker 06:
We have to figure out whether something is lawful or not.

[00:42:35] Speaker 05:
So sorry, spin that out a little bit.

[00:42:42] Speaker 05:
What would be a variation that would tend to make it more or less permissible?

[00:42:49] Speaker 06:
Well, I think when we have something like we had here, there was a requirement they pass a welding test in order to be dispatched by the pipe fitters union.

[00:42:58] Speaker 06:
So we're not getting into the sticky area of membership, but we're doing, right, there's some other

[00:43:05] Speaker 06:
uh, criterion that they have to pass to get responded, uh, get dispatched to the new contract.

[00:43:12] Speaker 06:
And I believe it is uncontested that the welding test requirement is was fine.

[00:43:17] Speaker 06:
I think the Boilermakers say that at page 37 of their brief.

[00:43:21] Speaker 06:
So if it's a situation like that and also like we have here, um, then I think that could be, that can be an explanation.

[00:43:29] Speaker 07:
I thought your original position in the briefs was that

[00:43:33] Speaker 07:
There's no practical difference on these facts between discharge and layoff.

[00:43:39] Speaker 07:
So it doesn't matter whether they chose discharge over layoff.

[00:43:45] Speaker 07:
Is that still the position?

[00:43:46] Speaker 06:
I think that's true.

[00:43:47] Speaker 07:
Why do you think that's the case?

[00:43:49] Speaker 06:
Right.

[00:43:49] Speaker 06:
Because of the point I was making before is that this is actually quite similar to how these things have happened in the past.

[00:44:01] Speaker 06:
I mean, it's not an 8F contract expiration situation, but the testimony we were discussing before with Paul Iona, where he was saying that in past instances when work had run out, they had been, I'm not sure he uses the word layoff, or discharge, but they're no longer working for Hawaiian dredging.

[00:44:19] Speaker 06:
They go out on unemployment, and at some point, they get re-dispatched to Hawaiian dredging.

[00:44:24] Speaker 06:
And that's what happened to the employees in this case, just fill in a layoff with discharge, because they were discharged on the 17th.

[00:44:34] Speaker 06:
They went out.

[00:44:36] Speaker 06:
I'm not sure if they collected unemployment.

[00:44:38] Speaker 06:
But they were subsequently re-dispatched, so through the pipe fitters, to work at Hawaiian Dredging.

[00:44:44] Speaker 06:
So it's actually very similar to what happened.

[00:44:47] Speaker 06:
What would have happened if they had been laid off?

[00:44:51] Speaker 06:
They would have been out of work for a little bit,

[00:44:53] Speaker 06:
And they would have had to be redispatched with pipe fitters, and they would have gone back to work at Hawaiian dredging.

[00:44:58] Speaker 07:
You don't think they were out of work longer as a result of being discharged versus being laid off?

[00:45:05] Speaker 06:
I don't think so.

[00:45:06] Speaker 06:
Or at least there's nothing in the record to suggest one way or the other.

[00:45:08] Speaker 06:
It took, there was some ramp up time to start with the new, with the pipe fitters.

[00:45:14] Speaker 06:
But I would think, though, this is speculation that would have happened, regardless of what had happened, whether the boilermakers were, the employees were,

[00:45:23] Speaker 06:
laid off or discharged because they would have had to come through the pipe fitters hiring hall.

[00:45:29] Speaker 06:
They would have had to pass this welding test.

[00:45:32] Speaker 06:
And right anytime there's like I was like there's kind of a ramp up period and I think that would have happened either way.

[00:45:39] Speaker 04:
It's true if you're laid off you have to go through a hiring hall.

[00:45:43] Speaker 04:
I thought the whole point of being laid off in a normal sense it's not totally clear what that record reference is talking about.

[00:45:50] Speaker 04:
that if you just get called back, you don't have to go through the hiring.

[00:45:54] Speaker 04:
You don't have to do a welding test.

[00:45:58] Speaker 06:
Well, the contract with the pipe fitters says that they have to, and I'm not getting the language exactly right, but they have to be.

[00:46:05] Speaker 04:
No, but with the boiler makers beforehand, if they've been laid off, so there are already employees of Hawaii dredging if they're just laid off.

[00:46:13] Speaker 04:
Why would they need them?

[00:46:15] Speaker 04:
even go through the hiring hall.

[00:46:16] Speaker 04:
I thought that was the point of the difference between layoff and discharge.

[00:46:20] Speaker 06:
But just going on that testimony from Polione, he uses the word redispatched.

[00:46:24] Speaker 04:
I don't know what that means versus layoff versus discharge.

[00:46:27] Speaker 04:
That's the problem.

[00:46:28] Speaker 06:
Well, after whatever happened to him, whether he was laid off or discharged.

[00:46:32] Speaker 04:
I know what we're talking about.

[00:46:33] Speaker 04:
Whether layoff or discharge matters.

[00:46:35] Speaker 04:
So we don't, the fact we don't know whether that, that might've been a discharge.

[00:46:40] Speaker 06:
I don't believe it was a discharge.

[00:46:43] Speaker 06:
But I guess perhaps it's true that he doesn't say one way or the other.

[00:46:48] Speaker 06:
I don't remember if he says one.

[00:46:53] Speaker 04:
I'm trying to understand what layoff means in the ADEF context.

[00:46:57] Speaker 04:
I would have thought, imagine you had a continuing contract.

[00:46:59] Speaker 04:
So you're not going between one union.

[00:47:01] Speaker 04:
If you're laid off, you go back to the hiring hall, you just go right back to the employers and they go.

[00:47:06] Speaker 04:
You know, contract ended its Thursday, but we'll see you Monday with a new contract.

[00:47:10] Speaker 04:
The new contract starts Monday.

[00:47:11] Speaker 04:
Don't come to work on Friday because we don't have any work for you.

[00:47:14] Speaker 04:
I assume they just show up on Monday.

[00:47:16] Speaker 04:
They don't go back to the hiring hall.

[00:47:18] Speaker 06:
That would be my assumption, but I don't.

[00:47:20] Speaker 04:
So layoff could make a difference here.

[00:47:23] Speaker 06:
Well, I think there is.

[00:47:24] Speaker 06:
I think it does matter that there's a new union.

[00:47:27] Speaker 06:
I think that is it.

[00:47:28] Speaker 04:
We just don't have a record on this.

[00:47:29] Speaker 04:
I don't have any idea how this works.

[00:47:30] Speaker 04:
I don't have any facts on this.

[00:47:31] Speaker 06:
We don't have a record on this because.

[00:47:35] Speaker 06:
Because it's

[00:47:37] Speaker 04:
So we don't have a factual basis for saying that layoffs versus discharge is the same in this situation.

[00:47:43] Speaker 04:
We just don't know.

[00:47:44] Speaker 06:
Okay, let's say we don't know whether, even if we don't know whether they would have been the same.

[00:47:53] Speaker 06:
I think it's still the case, however, that, and I apologize, we're kind of going in circles here, but the employer has the choice whether to lay off or discharge.

[00:48:02] Speaker 07:
This is a friendly question.

[00:48:05] Speaker 07:
I thought that the board said in its last decision on review, that maybe discharge versus layoff matters in almost every contract.

[00:48:15] Speaker 07:
But in this context, where an ADF contract like the Barney agreement has expired, that there's no continuing contract, that layoff doesn't work any different than a discharge.

[00:48:30] Speaker 07:
Because the pipe fitters will still have hiring hall,

[00:48:36] Speaker 07:
requirements one way or the other, and whether you have laid someone off or discharged them, they're starting in the same place, vis-a-vis the eyes of the pipers.

[00:48:50] Speaker 06:
And that's where I was starting at with my response to Judge Millett, that I think it does matter that there's a new union, a new contract, the new union.

[00:48:58] Speaker 07:
And that's what the board said, right?

[00:49:00] Speaker 06:
Yes, yes.

[00:49:01] Speaker 07:
And there's no evidence to the contrary?

[00:49:06] Speaker 06:
Excuse me, now there's no evidence to the contrary as to, I mean, the contract with the pipe fitters talks about the employer must secure all employees covered by this agreement through the employment office of the union, of the pipe fitters union.

[00:49:25] Speaker 06:
Doesn't say, doesn't make a difference between whether you were calling them from layoff or that these are new employees or what they form employees who've been discharged.

[00:49:33] Speaker 04:
Does layoff affect seniority?

[00:49:35] Speaker 06:
Does layoff affect seniority?

[00:49:37] Speaker 04:
I'm assuming that the hiring hall, one of the factors they use for who gets to go out first is seniority.

[00:49:44] Speaker 06:
So are we talking about under the Boilermakers contract or the Pipefitters contract?

[00:49:50] Speaker 04:
I thought there was evidence that one of the factors, at least under the Pipefitters, included seniority.

[00:49:58] Speaker 06:
In the pipe, so in the pipe fitters contract, well, two points.

[00:50:02] Speaker 06:
One is that any seniority accrued under the Boilermakers contract is no more after the startup with the pipe fitters contract.

[00:50:12] Speaker 04:
So I don't think for that- Even if you're laid off, only laid off by Hawaiian.

[00:50:14] Speaker 04:
That's what I'm asking.

[00:50:15] Speaker 04:
If you're only laid off by Hawaiian dredging, that's because it says that in the pipe fitters contract, even if you were laid off by Hawaiian dredging,

[00:50:24] Speaker 06:
Because the contract under which you have accrued the seniority is no more.

[00:50:29] Speaker 06:
So your terms and conditions of employment, including seniority, are now governed by a new... I get that if you're terminated.

[00:50:33] Speaker 04:
I'm just checking.

[00:50:34] Speaker 04:
If I'm still an employee of Hawaiian Dredging.

[00:50:37] Speaker 06:
So then let me get to my second question, is that under the pipe fitter's contract, there is a seniority-based dispatch system.

[00:50:46] Speaker 06:
And what it talks about is it's based on your service with a signatory employer.

[00:50:53] Speaker 06:
Um, and so Hawaiian dredging is now a signatory employer to the pipe fitters contract.

[00:50:58] Speaker 06:
So it doesn't talk in terms of seniority with the pipe fitters seniority, seniority with the company with Hawaiian dredging.

[00:51:09] Speaker 04:
If you're a current employee laid off, but you're still a current employee of Hawaiian dredging, that's going to count towards your seniority.

[00:51:17] Speaker 06:
So I think.

[00:51:18] Speaker 06:
One, we're getting further afield from the record side.

[00:51:21] Speaker 04:
Well, it's just that there was an argument that there was no difference here, and yet we're struggling with how we know that.

[00:51:28] Speaker 04:
And while the board might have said something, it sounds like from what you're telling me, we don't actually have a lot in the record.

[00:51:35] Speaker 04:
Now, we can argue about whose fault that is that we lack the information in the record, but it's a decision the board made.

[00:51:41] Speaker 04:
So it had to have substantial evidence to support its finding.

[00:51:44] Speaker 04:
If we had to rely on that, that there was no difference

[00:51:48] Speaker 04:
We had to rely on that.

[00:51:49] Speaker 04:
There'd have to be substantial evidence because that finding is very much challenged by petitioners in this case, that there was no difference.

[00:51:57] Speaker 06:
So I think one thing you said is that if you are to rely on that, but I don't think you have to rely on that piece because of the other argument the board's making that it is the choice.

[00:52:08] Speaker 06:
It is the employer's choice whether to discharge a layoff so long as it is not a discriminatory choice.

[00:52:17] Speaker 06:
And if you're with us on that one, I don't think you have to get to the second point about, oh, it doesn't matter whether it's a layoff or discharge.

[00:52:24] Speaker 06:
Practically, it's the same thing.

[00:52:27] Speaker 06:
I think you could go on either of those theories.

[00:52:35] Speaker 05:
One last question.

[00:52:37] Speaker 05:
Assume that there was a layoff rather than a discharge.

[00:52:44] Speaker 05:
Is there anything in 8F that

[00:52:46] Speaker 05:
would require the pipe fitters to give more credit to these welders based on that distinction.

[00:52:57] Speaker 06:
Is there anything that would require?

[00:52:59] Speaker 06:
We're in the NLRA.

[00:52:59] Speaker 06:
We're talking about for seniority purposes?

[00:53:02] Speaker 06:
Yeah, for whatever purposes.

[00:53:03] Speaker 06:
Nothing in the statute itself.

[00:53:05] Speaker 06:
Nothing in the ADEF.

[00:53:07] Speaker 06:
ADEF certainly allows these types of agreements where a new union can come in and require that everyone become

[00:53:13] Speaker 06:
dues and fees paying members of that union.

[00:53:17] Speaker 06:
If I could just make one more point in response to something that was said earlier, and I'll be quick, is that there is no legal requirement that an employer give these employees an offer that they continue to work during the switchover.

[00:53:32] Speaker 06:
The cases that are cited by the biomakers in their brief, Jack Welsh and all those, it's about the issue there was that the employer

[00:53:40] Speaker 06:
The stated reason of the employer for those discharges is that it said, oh, these employees were just going to quit anyway, because I know they're not going to work under a non-union shop.

[00:53:49] Speaker 06:
And so I fired them.

[00:53:50] Speaker 06:
And the board didn't believe that.

[00:53:51] Speaker 06:
They said, you can't just make that decision for them.

[00:53:53] Speaker 06:
You have to give them the opportunity to quit.

[00:53:56] Speaker 06:
And so it was a response to the employer's argument in that case.

[00:54:00] Speaker 06:
It wasn't a legal proposition that applies all the time.

[00:54:04] Speaker 04:
Thank you very much.

[00:54:05] Speaker 06:
Thank you.

[00:54:16] Speaker 02:
I think Judge Millett and Judge Katz, you framed this question perfectly.

[00:54:21] Speaker 02:
Judge Katz, I can see that there are circumstances where an employer could do what you suggest.

[00:54:27] Speaker 02:
Say to the workers, I'm pausing my business for a period of time.

[00:54:31] Speaker 02:
There's no more work for you, I'm not doing any work.

[00:54:34] Speaker 02:
You're discharged, go file for employment, go back to your hall, seek work elsewhere, or work non-union.

[00:54:40] Speaker 02:
And then at some point, sign an agreement with another union, and begin the hiring process again.

[00:54:47] Speaker 02:
Judge Miller, on the other hand, points out that in this case, it wasn't a week.

[00:54:51] Speaker 02:
It was the next day on February 18th that Hawaiian dredging met with the pipefitters and began the process of signing the agreement.

[00:54:59] Speaker 02:
There were no negotiations.

[00:55:00] Speaker 02:
They just signed the association agreement that the pipefitters had in Hawaii.

[00:55:05] Speaker 02:
They signed it a week later with an understanding that if the board reversed the signing, they boyed it.

[00:55:11] Speaker 02:
So it's that like instantaneous, but this was a day when they met with the pipe fitters and we suggested that they knew before the 18th they were going to meet, but they met that day, they actually reviewed the record shows they went to the training center and looked at the training center.

[00:55:29] Speaker 02:
The timing makes a lot of difference.

[00:55:30] Speaker 03:
So they went to what center?

[00:55:32] Speaker 02:
The pipe fitters had a very established training center.

[00:55:34] Speaker 03:
Training center.

[00:55:35] Speaker 02:
And so apparently there was a tour given at the training center that very day.

[00:55:39] Speaker 02:
They met with the pipe fitters on the 18th.

[00:55:41] Speaker 02:
Record suggested divorce on the 19th, but Valentine says it was the 18th and then sign the agreement on the 23rd.

[00:55:49] Speaker 02:
The timing is important here because discharge men.

[00:55:52] Speaker 02:
Use the term it facilitated that is allowed Hawaiian judging to sign an agreement with the pipe fitters, which then.

[00:56:01] Speaker 02:
I don't want to say it shows up, but preferred all the pipe fitter members were on, as my opponent points out, a seniority-based referral system.

[00:56:10] Speaker 02:
I want to be clear about something here that their referral system favored people who had many hours in the industry and then worked down as a seniority system.

[00:56:19] Speaker 02:
But I do want to clarify something because I think there's

[00:56:22] Speaker 02:
There is no seniority under the pipe fitters agreement or the boilermakers agreement in terms of your work.

[00:56:28] Speaker 02:
Normally collective bar agreements say if you worked for 20 years, you have more seniority over the worker who had 15.

[00:56:36] Speaker 02:
There is no seniority.

[00:56:38] Speaker 02:
Coined dredging under pipe fitters or boilermakers could lay people off without regard to seniority.

[00:56:43] Speaker 02:
So the length of time working for coined dredging was not a lot of consequence here, except for the fact

[00:56:51] Speaker 02:
This is contrary to what Judge Walker is raising, that Hawaiian judging did make every effort to retain these people and asked the pipe fitters to keep them.

[00:57:00] Speaker 02:
But Austin Wolf says that the pipe fitters couldn't impose a requirement of discharging or terminating the agreements as a condition of signing an agreement.

[00:57:10] Speaker 02:
that your honor does protect the section seven rights of the Boilermakers who had had a union of their choice or even to be non-union protects that right as opposed to a new union that wants to interfere with it.

[00:57:23] Speaker 05:
I'm sorry so what made this an unfair labor practice was Hawaiian dredging's effort to

[00:57:33] Speaker 05:
get these workers rehired?

[00:57:35] Speaker 02:
No, but what that does is it undermines the argument that they had to discharge them because they had good reason to keep them.

[00:57:41] Speaker 02:
They wanted to keep them.

[00:57:42] Speaker 02:
It undermines their argument that they didn't just follow some past practice of either laying them off.

[00:57:47] Speaker 02:
All right, so it undermines it.

[00:57:49] Speaker 02:
I think that the bottom line from my point of view, if I may conclude, is that when I started this case and I saw a letter

[00:57:56] Speaker 02:
that said back in 2011, 11 years ago, dear union, we're terminating the relationship with you because you've been a bad partner, you haven't negotiated.

[00:58:08] Speaker 02:
It sounds like they're terminating the agreement because the union hasn't negotiated.

[00:58:12] Speaker 02:
But we know the underlying reason was there were some strikes by the union and the workers.

[00:58:16] Speaker 02:
And then the letter said, and we're not going to hire members of the Boilermakers union.

[00:58:20] Speaker 02:
And that stuck out to me to be an admission that it's a membership based decision that we're not going to hire board members anymore.

[00:58:28] Speaker 02:
And I think that's what caused this case to kind of have this length of time, because on its face, Brian Dredging's reason is tied to membership, which as we know in the record is what happened here.

[00:58:39] Speaker 07:
Mr. Roosevelt, I know we're long into this argument.

[00:58:41] Speaker 07:
I am still confused about the practical difference in this specific context between layoff and discharge.

[00:58:48] Speaker 07:
Can you tell me where to go in the record?

[00:58:51] Speaker 07:
where I can see that these Boilermaker employees would have been better off under the pipe fitters hiring hall priority system.

[00:59:07] Speaker 07:
If they had been laid off rather than.

[00:59:12] Speaker 02:
I can't answer honestly answer that question because I don't I don't understand the pipe for systems and represent them.

[00:59:18] Speaker 02:
All I can say is it does say

[00:59:21] Speaker 02:
Council for the board points us out that if you have 10,000 hours working for a signatory, you get a preference.

[00:59:28] Speaker 02:
And if they're laid off, arguably that suggests that many of these workers who had many more than 10,000 hours of working for Hawaiian graduation before it's signed with the pipe fitters would have that preference.

[00:59:39] Speaker 02:
I don't know, it's not in the record, just speculation on my part.

[00:59:42] Speaker 02:
I will concede.

[00:59:43] Speaker 04:
Do you lose that preference if you're discharged?

[00:59:46] Speaker 04:
Because you would still be able to say, I've worked more than 10,000 hours for them.

[00:59:49] Speaker 07:
Right.

[00:59:50] Speaker 07:
It seems key.

[00:59:50] Speaker 07:
I mean, that seems to be the key to why in this weird context, this weird fact pattern,

[00:59:58] Speaker 07:
There may have been no practical difference between discharge and layoff post what the bargaining agreement with the discharge.

[01:00:10] Speaker 02:
The difference was I'm been working for some of these workers have worked blind dredging for 25 years, 20 years, 15 years.

[01:00:17] Speaker 02:
They're working on projects.

[01:00:19] Speaker 02:
They're told they're discharged.

[01:00:20] Speaker 02:
They're gone.

[01:00:21] Speaker 02:
They have no more employment.

[01:00:22] Speaker 02:
Shook your hand.

[01:00:23] Speaker 02:
Here's your last paycheck.

[01:00:25] Speaker 02:
You're out of here.

[01:00:27] Speaker 02:
Because I'm a member of the union and their perspective when that happens, they have no choice but to think it's their union membership that has caused their discharge.

[01:00:37] Speaker 02:
Now, events later played out that that did have an impact because the board of makers and later went through the hiring hall process of the pipers, including joining them, didn't start work until March 23rd, I think, is the first date.

[01:00:49] Speaker 02:
So they lost some time.

[01:00:51] Speaker 07:
There's nothing in the record that shows they would have started on March 13th rather than March 28th if they had been laid off rather than discharging.

[01:01:02] Speaker 02:
There is something in the record because we have the dispatching records of Hawaiian dredging and we know they dispatched some of their current members on their out-of-work list first.

[01:01:11] Speaker 02:
And we do know that whatever it took, the first Borlomaker, some were on the list before March 23rd, but the first date any of them was dispatched,

[01:01:21] Speaker 02:
March 21 and March 23rd.

[01:01:23] Speaker 07:
They still had to pass the pipe fitters test.

[01:01:26] Speaker 07:
They still had to do some of these requirements.

[01:01:29] Speaker 07:
The legality of those requirements is not challenged.

[01:01:32] Speaker 07:
There's nothing in the record that says once they checked all the boxes that the pipe fitters require them to check, they would have been able to start earlier than they did if they had been laid off rather than discharged.

[01:01:45] Speaker 02:
That is true from the piper's point of view that they would have been on the outer brooks the same day, but the piper is not accused of the entrepreneurial effect.

[01:01:54] Speaker 02:
The accusation here is that Hawaiian dredging.

[01:01:56] Speaker 04:
I'm just confused.

[01:01:58] Speaker 04:
Just to get back to your answer.

[01:02:00] Speaker 04:
Do we know on this record that if you're laid off, the hiring hall is for new positions.

[01:02:08] Speaker 04:
You've got enough existing welders, you don't go to the hiring hall.

[01:02:11] Speaker 04:
Got enough people there already.

[01:02:13] Speaker 04:
Do we know

[01:02:15] Speaker 04:
Maybe this is just how it works.

[01:02:17] Speaker 04:
We know that if you're laid off, you have to go through the hiring hall or you just get called back by your employer.

[01:02:25] Speaker 02:
We don't know.

[01:02:26] Speaker 02:
We don't know.

[01:02:26] Speaker 02:
We do not know.

[01:02:27] Speaker 04:
So they might not have had to go through the testing and all that kind.

[01:02:30] Speaker 04:
We just don't know.

[01:02:31] Speaker 02:
No, we do know for... I'm sorry.

[01:02:33] Speaker 02:
I think I better answer this from two perspectives.

[01:02:36] Speaker 02:
We don't know from the Boilermakers in the past, whether if fine-dreshing laid me off today... I don't care about the Boilermakers.

[01:02:43] Speaker 04:
What I want to know is in this situation, if they had laid them off when their work ended, because they expected to have work again within a week or two.

[01:02:53] Speaker 04:
They laid them off rather than discharged.

[01:02:57] Speaker 04:
I had thought from your, maybe I just misread your brief, I thought the point was you wouldn't have to go through all this rigmarole with pipe fitters if you had just been laid off because you would already be an employee of Hawaiian dredging.

[01:03:09] Speaker 04:
No reason to go to the hiring hall.

[01:03:11] Speaker 04:
We have folks on board already.

[01:03:14] Speaker 04:
Maybe they have to go ahead and do some paperwork with them, pay some fees or something.

[01:03:18] Speaker 04:
but they wouldn't have to get cleared through a hiring hall.

[01:03:21] Speaker 04:
The hiring hall is for new needs, not when your existing needs aren't filled.

[01:03:26] Speaker 02:
Our position is Austin and Wolf.

[01:03:29] Speaker 04:
No, what is your factual answer?

[01:03:31] Speaker 04:
I don't want a legal answer.

[01:03:32] Speaker 04:
Austin and Wolf doesn't tell me about this.

[01:03:33] Speaker 02:
Factually, no.

[01:03:35] Speaker 02:
Factually, if the company had laid them off, the pipe fitters from day one insisted that layoff or discharge makes no difference to us.

[01:03:43] Speaker 02:
You still have to join the... Would that have been lawful?

[01:03:47] Speaker 02:
it would have been lawful if they were not, had no expectation of employment, had not been discharged for it.

[01:03:54] Speaker 02:
The pipe for it is to say, any new employees have to go through our referral system.

[01:03:58] Speaker 04:
But if you're laid off, you're not a new employee.

[01:03:59] Speaker 04:
That's where I'm confused.

[01:04:01] Speaker 02:
All right.

[01:04:01] Speaker 02:
So the difference here is that, that line judging could on the 17th, you know, whenever they drafted the letter, they knew on the 15th actually, they'd been dismissed because that's the date that Barry Morris office received it.

[01:04:15] Speaker 02:
But they could have said to these workers,

[01:04:18] Speaker 02:
We're going a new direction.

[01:04:20] Speaker 02:
You're all being laid off.

[01:04:22] Speaker 02:
We are not going to work until we sign a new agreement.

[01:04:26] Speaker 04:
But you're arguing for this, right?

[01:04:28] Speaker 04:
Your brief is that they should have been laid off, not discharged.

[01:04:30] Speaker 02:
So your argument is that because they would have said that to them.

[01:04:33] Speaker 02:
Well, because in this fact pattern, if they laid them off, they would be saying to them, we're not getting rid of you permanently.

[01:04:38] Speaker 02:
We're not saying you're done with Hawaiian dredging.

[01:04:41] Speaker 02:
We're just saying we're going in a new direction.

[01:04:43] Speaker 02:
In effect, we're going to sign with someone else and then we'll deal with rehiring you.

[01:04:47] Speaker 02:
And then the question is, what were the pipefitters done?

[01:04:51] Speaker 02:
If the pipe fitters had said, OK, anyone who's in layout can come back first.

[01:04:57] Speaker 02:
We'll let them go back to work.

[01:04:58] Speaker 02:
Or the pipe fitters could have said, sorry, you can't rehire them because you've got to go through our system again.

[01:05:06] Speaker 02:
And that's what Austin and Wolf says, Judge Walker, that the pipe fitters can't do.

[01:05:11] Speaker 02:
They can't.

[01:05:12] Speaker 02:
They cannot.

[01:05:14] Speaker 02:
They cannot say to an employer, you've got workers who are currently working or laid off.

[01:05:18] Speaker 02:
You have to fire them.

[01:05:20] Speaker 02:
your preference to our people.

[01:05:22] Speaker 04:
That seems like a simple answer to my question, which is, had they been laid off as a matter of law, they wouldn't have had to go to the pipe finish hiring hall.

[01:05:31] Speaker 02:
They would have insisted they go through the hall.

[01:05:35] Speaker 02:
Yes.

[01:05:36] Speaker 02:
But that would have been unlawful.

[01:05:37] Speaker 04:
Yes.

[01:05:38] Speaker 04:
All I'm asking you is as a matter of law, they would not have had to go through the hiring hall.

[01:05:43] Speaker 02:
No, not.

[01:05:44] Speaker 02:
I'm sorry.

[01:05:45] Speaker 04:
As a matter of law,

[01:05:48] Speaker 04:
the pipe fitters to say you still have to go through our hiring hall.

[01:05:52] Speaker 04:
I assume that's what you're the one who raised that they shouldn't lay off rather than discharge.

[01:05:56] Speaker 04:
You must have done it for a reason.

[01:05:58] Speaker 02:
Yes.

[01:05:59] Speaker 02:
Yes.

[01:05:59] Speaker 02:
Austin and Wolf says you can't discriminate by having a new union condition employment on current employees or laid off employees by going through the hiring hall.

[01:06:10] Speaker 02:
you cannot condition them.

[01:06:12] Speaker 02:
That's what Austin says and has been reaffirmed since then that the new union can't say you got a group of workers, you got to discharge them in preference to our members, you got a group laid off, you can't disadvantage them in preference to our members who are referred to displace them.

[01:06:35] Speaker 02:
Thank you very much.

[01:06:36] Speaker 02:
Thank you very much.

[01:06:58] Speaker 00:
I'm sorry, that case is submitted.