[00:00:00] Speaker 03:
Case number 21-1249, International Organization of Masters, Mates, and Pilots, ILA AFL-CIO, Petitioner, versus National Labor Relations Board.

[00:00:12] Speaker 03:
Ms.

[00:00:12] Speaker 03:
Danny Dukic for the petitioner, Ms.

[00:00:14] Speaker 03:
Isabel for the respondent, Ms.

[00:00:16] Speaker 03:
Cooper for the interviewer.

[00:00:17] Speaker 01:
Good morning.

[00:00:29] Speaker 01:
Good morning, everyone.

[00:00:31] Speaker 04:
Lisa Dominovich of Busch Gottlieb on behalf of the International Organization of Masters Mates and Pilots.

[00:00:37] Speaker 04:
May it please the court.

[00:00:39] Speaker 04:
There's three points in which I wish to make that are in the brief, but I think can be highlighted further.

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The first is that the 1981 agreement is a foundational document of collective bargaining agreements in the offshore contracts of masters, mates, and pilots.

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It was negotiated as a master within a multi-employer association.

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That association has since disbanded, and the negotiations occur with each company individually.

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But it still is foundational for multiple contracts, meaning that the language that was relied on here is in many other contracts.

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But that to change it or correct it couldn't be done at just one negotiations table, because it is now broken away from multi-employer negotiations.

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And so this decision isn't just applicable to the company here, Sanreis and Acacia, but actually impacts all of the, or many of the offer agreements that master roommates and pilots has, because they also have that

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a 1981 underlying document as part of its contract.

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And so this ruling, therefore, really destabilizes relationship with other employers.

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Because it gives a place, if the union has a really expensive grievance that you don't want to arbitrate, simply refuse to arbitrate.

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And if masters, mates, and pilots goes to the National Labor Relations Board, even if they can show

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that in fact there are statutory employees in that unit citing this case, they don't have to rule on it.

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They can just say they don't have jurisdiction.

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And so it's a very important decision to the union to not have stand because of that basically, you know, free pass for any pending employer.

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And it's not just master's mates and pilots.

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There are other maritime unions that have officers and this is destabilizing for those maritime unions and in the entertainment industry and construction industry where you have multi-employer association negotiations and leads or professionals with skills that have to direct other workers.

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This has application in all of those places.

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And I think that the amicus brief does a nice job of diving into that.

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The second point is that the second and third mates come onto the ship through a hiring hall.

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So they are not selected by the employer.

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They don't interview them or get to choose who they pick.

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They come on because they have a defined set of skills and meet requirements and then are dispatched through the union hiring hall.

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And they're only on there for 120 days or maybe even less if they're replacing

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someone who is sick on board.

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So this isn't the type of aligned supervisor picked by the company.

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It is someone who has a skill set that comes on and off various companies throughout the course of their career.

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And really goes to the professional nature of the positions, not that they are supervisors that are more aligned with a company than the union.

[00:04:15] Speaker 05:
Mr. Medavich, are you arguing that the board's ruling is novel and unsupported, or that it squarely conflicts with prior board precedent?

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And if it's the square conflict, I take you to be relying principally on Arizona Electric.

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But in Arizona Electric, there was a stipulate then that there was a supervisor, whereas it seems to me the clearer potential conflict would be Grashett.

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I just want to sort of test out the decision of your position.

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Is it a conflict?

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Is it just new?

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If it's just new, is the burden to justify as weighty on the board?

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Well, it's hard to say in all honesty because there isn't a case that's squarely on point.

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Here, we were midterm in the contract.

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The contract did not and does not expire until 2027.

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So in 2015, when they voluntarily assumed the collective bargaining agreement, they assumed agreement in place until 2027.

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And so in Union Plaza, and I believe also through Arizona Electric, there was talk about, well, at the end of the contract, it may look different than during the term of the contract.

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But here we have a situation where there is not a stipulation as to supervisor status.

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we were in the mid contract term.

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So I'm not sure that there, and there has never been a case that has said that the board lacks jurisdiction to enforce a contract midterm that isn't all supervised.

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I thought your argument was the board walked away from existing precedent with no justification for what it would have done.

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And indeed the board decided Southern wasn't presented to the ALJ.

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That's what Judge Pillard is asking.

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What's your presentation here?

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In an agency case, I thought you were going after them as parties frequently do with an agency when the agency decision makes no sense.

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And I thought you were saying it makes no sense, one, because the record doesn't support it.

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Indeed, the record goes just the opposite way.

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They can't be in a fight over whether they were or were not supervised.

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The ALJ decided that and the board did not dispute it.

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The record's clear on who was and was not supervisors.

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And I thought your argument was, look, Your Honor, how can they reach this decision?

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This is a unit that is recognizable.

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They're charged with knowledge of the people who were in the unit.

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And there's never been a case that I can find anyway, ever, which says, we look to see what the employer thought.

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There's no case.

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Now here from the other side, maybe they found one between the time I prepared and today there's no case.

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But, but the point I'm making is I thought that was your argument.

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That is, I don't much care about the history.

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I understand the history.

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I didn't think that was the point of the case.

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We understand all the bargaining history.

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All the point of this case is there was an existing lawful bargaining unit.

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And the only fight before the ALJ was whether there were some non-supervisory people in it.

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That's all the parties thought was an issue.

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Sunrise didn't argue anything other than the whole fight was supervised.

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The ALJ said there are some employees here and the board did not overturn that funding.

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Well, in that kind of a unit, the board's supposed to recognize it, right?

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and the board walked away from it with no explanation, right?

[00:08:01] Speaker 05:
That's right.

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Okay.

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Is that your position?

[00:08:03] Speaker 05:
That is our position.

[00:08:04] Speaker 09:
Okay.

[00:08:06] Speaker 05:
All right.

[00:08:06] Speaker 05:
And I'm specifically confused by your saying that there's no direct conflict because it would seem to me that there's quite a direct conflict, at least with Gratiot, where if the board in Gratiot had begun with the threshold inquiry that the board began with,

[00:08:22] Speaker 05:
Here, whether the employer understood the unit to be mixed, it would have concluded that it lacked jurisdiction to enforce because in that case, the collective bargaining agreement itself said that it excluded supervisors within the meaning.

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of the act.

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And so the understanding as here where the board points to the agreement and says it describes people as supervisors, there the agreement describes the people as only employees.

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So I'm just not sure why you aren't relying more squarely on what at least on its face would seem to be a direct conflict with the prior board.

[00:09:11] Speaker 09:
I thought you just explained an answer to me that that's what you were meaning to say.

[00:09:18] Speaker 09:
This is inconsistent with established law, no?

[00:09:21] Speaker 04:
I guess where I'm getting a little confused but in agreement with what you're saying is that yes, our contention is that the decision is squarely contrary to established court law, period.

[00:09:33] Speaker 04:
And in many ways, not just in one way, in many ways is it squarely inconsistent.

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One way is that if you, no doubt, if you have a mixed unit and you're mid-contract, the board has jurisdiction to say, follow the contract.

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That's established.

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The second established principle that seems to not have been followed here is that you can rely on titles and paper authority.

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It matters what they do, in fact.

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That's what the ALJ followed.

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and the board decided not to even address.

[00:10:09] Speaker 09:
And the board and board law is you're presumed to know who's in your unit, no matter what the contract says.

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You can't change the fact of supervisor versus employee

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by pointing to the contract, which is the fabrication, arguably, and make it so.

[00:10:27] Speaker 09:
The board law is clear on that.

[00:10:29] Speaker 09:
It doesn't matter that the contract appears to suggest that everybody here is a supervisor when, in fact, everybody is not a supervisor.

[00:10:38] Speaker 09:
That's law.

[00:10:40] Speaker 09:
That's not just a great argument for you.

[00:10:43] Speaker 09:
That's the board law.

[00:10:44] Speaker 04:
That's correct.

[00:10:45] Speaker 04:
And also the law is that this court does not have to defer to the board's interpretation of the collective bargaining agreement.

[00:10:52] Speaker 04:
And that the collective bargaining agreement when it's referring to supervisor isn't referring to supervisor in a 211 cent of the act, but is talking about jurisdiction between different units.

[00:11:04] Speaker 04:
The licensed staff officers are not the only officers on these ships.

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There's also engineering officers.

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So when you're saying supervising whole maintenance, supervising cargo, you're talking about that's the license deck officer turf versus the engine room, which is the engineer officer's turf.

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It's referring to a different aspect.

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It's not thinking in narrow terms of the National Labor Relations Act.

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It's thinking in terms of we've got these different officers who are highly skilled and have a lot of education and have a lot of pride in what they do.

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on very close quarters together for 120 days out in the middle of the ocean.

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You know, let's say who's in charge of what and regulate that.

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And that's what all maintenance and cargo supervision is referring to.

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And for the board to interpret on their own that in their framework of a 211 supervisory status isn't consistent

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with what the parties understood back in 1981.

[00:12:08] Speaker 04:
But to your point too, the board has always looked at what are people doing now?

[00:12:14] Speaker 09:
Right.

[00:12:15] Speaker 09:
Well, that's what I'm saying.

[00:12:17] Speaker 09:
Again, I hear what you're saying about the reality, but the fact is you have an ALJ finding that the board doesn't dispute and a party can't walk away under existing law.

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And not just a good argument, a party can't walk away from the reality

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of the status of the employees who are in the unit.

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The ALJ said certain of these people are not supervisors.

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The employer can't walk away from that by saying, that's not what I ever understood.

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Now, in this record, did the employer ever, during this 40-year period, did the employer ever voice that as an argument?

[00:12:55] Speaker 04:
Well, so there's been many different employers for these forces.

[00:12:58] Speaker 04:
Well, any of them.

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But it's certainly not in the record.

[00:13:01] Speaker 09:
It's not in the record.

[00:13:02] Speaker 09:
Well, but that's a point to make.

[00:13:03] Speaker 09:
There's nothing in the record that says that the employer ever raised any argument up until this point, and indeed before the ALJ didn't make this argument.

[00:13:16] Speaker 09:
Right?

[00:13:17] Speaker 04:
Correct.

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And they have the burden of proof to do so.

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And they didn't even raise any kind of challenge about

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being supervisors until three years into the time after they had acquired the unit.

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So they voluntarily assume the contract.

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They go to arbitration on two other cases.

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Then after going into negotiations, so there is a re-opener in the contract where you can cover any topic except for the term of the agreement, which ends in 2027, and the defined benefit pension.

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But anything else is fair game.

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change the arbitration provision in those negotiations.

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And then two months later, all of a sudden, they say, we're not going to go to Lentingham Heights, Maryland anymore for arbitrations, because they're on the West Coast.

[00:14:05] Speaker 04:
I don't want to make the flight.

[00:14:07] Speaker 04:
And so I'm going to stop letting anything go to arbitration.

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And so therefore, they stop.

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And we have to go to the board to enforce this 1984, part of the contract that says that the arbitrations happen in Maryland.

[00:14:23] Speaker 04:
But the point is that that wasn't raised, and then the defense was only that the supervisors in fact, they are in fact supervisors, which was litigated at the hearing, was their defense to three years after voluntarily assuming the agreement,

[00:14:41] Speaker 04:
to why they didn't have to go to Maryland.

[00:14:44] Speaker 05:
Now, I take it the board's position on that is that the employer could have thought I'm recognizing the union, I'm negotiating with the union, but not in any kind of board enforceable set, just informally.

[00:14:59] Speaker 05:
And is that implausible on what ground?

[00:15:03] Speaker 04:
Well, so one thing is that the board decision didn't say that.

[00:15:07] Speaker 04:
The board decision says that both sides

[00:15:11] Speaker 05:
understood intent that they're... So both sides maybe thought we're just doing this because it's a convenient way to negotiate as private parties.

[00:15:22] Speaker 05:
It's our custom.

[00:15:24] Speaker 05:
We actually haven't resorted to the board because it's not, that's not the kind of bargaining we're doing.

[00:15:29] Speaker 04:
So what sort of... Right, so the problem with the board saying that is that that's not supported by the record.

[00:15:37] Speaker 04:
The record shows, in fact, there were 50 unfair labor practice charges filed over the course of the current general counsel's 20 years representing the unit.

[00:15:47] Speaker 04:
In the record, that there were multiple charges.

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And it wasn't even in dispute that the MMP has gone to the National Labor Relations Board to seek enforcement of this agreement.

[00:16:04] Speaker 04:
Again, we have the same underlying agreement

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And I'll represent to the court.

[00:16:08] Speaker 04:
This is not in the record.

[00:16:09] Speaker 04:
But in 2014, in another case against Matson, which has the same blue book, the 1981 Agreement Foundation, a little document said, we strenuously contest the concept that Matson chief mate, second mate, and third mate are statutory supervisors.

[00:16:26] Speaker 04:
So this idea that they haven't utilized the board and that they somehow have this understanding that they're statutory supervisors

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is simply not true, there's not record support for it.

[00:16:40] Speaker 04:
In fact, the record goes the other way to suggest that the union is going and filing charges and not to do that.

[00:16:47] Speaker 02:
In the board order, what does, they quote section 21 of the 1981 CBA, duties of officer states, the parties agree that the duties of the licensed decked officers, including masters, shall be maintained as supervisory and professional.

[00:17:04] Speaker 02:
Now, they don't, they put that in the order, they don't discuss it.

[00:17:08] Speaker 02:
What's your interpretation of that provision of the CBA?

[00:17:14] Speaker 04:
The interpretation, again, is more in the sense of responsibility and consistent with maritime law.

[00:17:23] Speaker 04:
There's similar language in maritime that understanding of the nature of the role of directing the ship.

[00:17:30] Speaker 04:
But since 1981, and in this record,

[00:17:34] Speaker 04:
there's evidence that, in fact, because of the constant technological communication with ShoreSide, that the regulations and international conventions require a designated person to shore, and constant conduct with that designated person to shore, that those kind of 211 supervisory duties have moved to shore.

[00:17:54] Speaker 04:
And in fact, in the record, there's an example of the captain

[00:17:58] Speaker 04:
wanting to terminate a chief mate and shore side management saying, no, you can't terminate the chief mate.

[00:18:06] Speaker 04:
So back in 81, even if, and we will not concede that that means 211 supervisory, but even if it meant in 1981 supervisory consistent with the app, that doesn't mean that you're forever and always bound by that statement then when there's technological changes

[00:18:26] Speaker 04:
industry changes, the crew sizes have gone down, and there's many cases, including Bruce Goh, Tug, and others of this quarter that are recognized.

[00:18:34] Speaker 02:
My question really was, having put it out in their order, there's no discussion of what it means by the award.

[00:18:43] Speaker 02:
Okay, that's one, to me, an internally inconsistent part of the board's order.

[00:18:51] Speaker 02:
Also, toward the very end, it throws out

[00:18:57] Speaker 02:
This step, the respondent seeks to continue the party's bargaining relationship as it has existed for 40 plus years.

[00:19:06] Speaker 02:
Outside the board's jurisdiction as is common in maritime industry labor relations.

[00:19:12] Speaker 02:
Now, didn't you just say that there have been over 50 ULPs that the board has considered?

[00:19:18] Speaker 02:
Or did I misunderstand you?

[00:19:20] Speaker 04:
Well, that doesn't mean that they have gone up to board decisions.

[00:19:25] Speaker 02:
So there's been so is the board wrong when it says for 40 years, these two parties have been operating outside the board's jurisdiction.

[00:19:35] Speaker 04:
Yes, the board is wrong with that and to there's certainly no record support and if it had been.

[00:19:42] Speaker 04:
frame that way at the ALJ level, we could have put in more evidence.

[00:19:47] Speaker 04:
I can tell you there's been eight cases under that have the 1981 agreement as a foundational document that were filed by masters, mates, and pilots between 2009 and 2021.

[00:19:58] Speaker 04:
And in none of those cases was supervisory status conceded in fact.

[00:20:06] Speaker 04:
OK.

[00:20:06] Speaker 04:
Are there any more questions?

[00:20:08] Speaker 02:
We'll give you a couple of minutes to reply.

[00:20:10] Speaker 02:
Thank you.

[00:20:12] Speaker 02:
Ms.

[00:20:13] Speaker 02:
Isbell.

[00:20:16] Speaker 01:
Good morning.

[00:20:25] Speaker 06:
May it please the court.

[00:20:26] Speaker 06:
Kelly Isbell here on behalf of the National Labor Relations Act.

[00:20:30] Speaker 06:
The board's decision here is limited.

[00:20:32] Speaker 06:
It's simply found that it does not have jurisdiction to act in this particular case because of the unusual circumstances.

[00:20:40] Speaker 09:
Well, I mean, that's an interesting approach.

[00:20:42] Speaker 09:
And if I were in your shoes, I'm not sure how I was going to ask you.

[00:20:46] Speaker 09:
Kiddingly, was there a lottery drawn and you got stuck with this case?

[00:20:52] Speaker 09:
Because I would be very honest with you, since I'm one of the judges here and one of the three people you have to address in my view.

[00:20:59] Speaker 09:
The majority decision is a paradigm of an agency decision that is devoid of reason decision making for a lot of reasons.

[00:21:10] Speaker 09:
It walks away from existing board law.

[00:21:16] Speaker 09:
Recognizing mixed units is long standing and perfectly appropriate and the board can't walk away from it.

[00:21:24] Speaker 09:
It creates new law that is board looking at what it perceives to be the understanding of the employer or the employer and the union as opposed to the facts in the case.

[00:21:38] Speaker 09:
It doesn't address the ALJ critical findings.

[00:21:44] Speaker 09:
It addresses a case that wasn't presented to the ALJ.

[00:21:48] Speaker 09:
And I go on and on.

[00:21:50] Speaker 09:
The dissent in this case is exactly right.

[00:21:53] Speaker 09:
The dissent was scratching his head like in disbelief because I was in disbelief.

[00:21:57] Speaker 09:
This case makes no sense in terms of how we are supposed to look for reason decision making from an agency.

[00:22:05] Speaker 09:
And that's why we will ask you

[00:22:07] Speaker 09:
where you must have died when you got this assignment and you're smiling nicely and that's polite.

[00:22:11] Speaker 09:
But this case makes no sense.

[00:22:13] Speaker 09:
How can we deny the petition when there's no reason decision making here?

[00:22:20] Speaker 06:
I will say that the board applied its mixed unit decisions to this unusual fact that you're right.

[00:22:29] Speaker 06:
There are not very many mixed unit cases to begin with.

[00:22:33] Speaker 06:
And there are

[00:22:35] Speaker 06:
maybe no aces, they come to the board in this particular posture.

[00:22:40] Speaker 06:
But the board looked at objective indicia, the party's understanding.

[00:22:45] Speaker 09:
What's the objective addition?

[00:22:48] Speaker 06:
The 40-year bargaining history.

[00:22:50] Speaker 09:
Right.

[00:22:50] Speaker 06:
the language in the contract, which does not establish, the board is not saying the language in the contract establishes.

[00:22:57] Speaker 09:
Well, you anticipated my question.

[00:22:58] Speaker 09:
That's not conclusive, okay?

[00:23:00] Speaker 09:
The language, absolutely not conclusive.

[00:23:02] Speaker 09:
And the board would agree.

[00:23:04] Speaker 09:
And the case law is, as you understand, whether it's, there are only a few cases or not, the case law is undisputed, that the parties are bound by, they're assumed to understand or they're assumed to accept the reality of who's in the unit.

[00:23:20] Speaker 09:
they can't after the fact say, oh, we didn't really understand that way.

[00:23:24] Speaker 09:
A case law from the board is, look, if you sign into that mixed unit, you're presumed to understand who's in it.

[00:23:32] Speaker 09:
And the way we measure who's in it is by an objective standard like the ALJ did.

[00:23:39] Speaker 06:
Good point.

[00:23:40] Speaker 06:
One, both parties are being held to their collective bargaining.

[00:23:45] Speaker 06:
So that this is midterm.

[00:23:47] Speaker 06:
This is not indeterminate.

[00:23:49] Speaker 06:
This is not, in our case, a representation petition where the parties are trying to decide who's in the unit.

[00:23:54] Speaker 06:
This is midterm contract.

[00:23:56] Speaker 06:
The board does not disturb a contract in the unit scope, who's in the unit, who's out in the middle of the contract.

[00:24:03] Speaker 06:
But the decision does just that.

[00:24:06] Speaker 06:
It refuses jurisdiction.

[00:24:08] Speaker 06:
It refuses jurisdiction because the board is holding both parties

[00:24:13] Speaker 06:
to the contract which says these employees, these workers will be treated as supervisory.

[00:24:18] Speaker 05:
It doesn't say that.

[00:24:20] Speaker 06:
It doesn't say that.

[00:24:20] Speaker 05:
It certainly doesn't refer to supervisory in the statutory.

[00:24:24] Speaker 06:
No, it absolutely does not.

[00:24:25] Speaker 09:
And it's not conclusive.

[00:24:26] Speaker 09:
You started off by acknowledging that.

[00:24:28] Speaker 06:
That's not conclusive.

[00:24:30] Speaker 06:
The board made no finding about whether or not these workers are in fact

[00:24:36] Speaker 05:
the board that in fact it thought that was irrelevant which is stunning because even if the board adheres to its understanding test surely it is relevant to whether an employer has a reasonable understanding what the employees actually do and what they're found to do if the employer has any idea about its own workforce

[00:25:01] Speaker 05:
then the plausibility or reasonableness of the claimed understanding would be affected by the finding about the workers and the board does not treat it as a completely irrelevant.

[00:25:15] Speaker 05:
How could that be?

[00:25:16] Speaker 06:
Because in the board's view, based on those objective indicia I mentioned, including the union's own statements to the board and courts over the years that this is a supervisory unit,

[00:25:31] Speaker 06:
But the parties, when Sunrise adopted the bargaining agreement, so Sunrise just came in and adopted it whole cloth.

[00:25:37] Speaker 06:
They did not negotiate with the union.

[00:25:39] Speaker 06:
As far as I can tell, they did not even talk to the union.

[00:25:42] Speaker 06:
They adopted, there's a part of the record that says their contract with Horizon is they just adopt all of Horizon's obligation.

[00:25:51] Speaker 06:
They come in and they take it.

[00:25:53] Speaker 06:
But there's no negotiation about who's in and who's out of the unit.

[00:25:56] Speaker 06:
They have this 1981 agreement that says this is,

[00:26:02] Speaker 09:
This unit will be supervisory and this is all made up nonsense.

[00:26:07] Speaker 09:
Let me tell you why and this is what blew me away.

[00:26:11] Speaker 09:
The ALJ didn't try that case.

[00:26:15] Speaker 09:
And then the board's blaming the ALJ.

[00:26:16] Speaker 09:
The ALJ did exactly what the ALJ.

[00:26:19] Speaker 09:
If the company had that case to present, would they forget?

[00:26:23] Speaker 09:
And then the board made it up.

[00:26:25] Speaker 09:
The company did not argue that before the ALJ.

[00:26:29] Speaker 09:
The fight was over.

[00:26:30] Speaker 09:
Well, in fact, everyone's a supervisor.

[00:26:32] Speaker 09:
OK, that's the issue.

[00:26:33] Speaker 09:
I'm going to take it on because everyone understood if they're not all supervisors, this unit has to be recognized.

[00:26:39] Speaker 09:
Everyone went to the ALJ with that understanding.

[00:26:42] Speaker 09:
The employer never raised raised the issues that the board then picked up on.

[00:26:47] Speaker 09:
That's blatantly unfair.

[00:26:49] Speaker 09:
One thing.

[00:26:50] Speaker 06:
If I may ask that particular issue,

[00:26:53] Speaker 06:
The, at the, during the hearing, the company's counsel did ask, were you ever certified by the board?

[00:27:02] Speaker 06:
It doesn't matter.

[00:27:04] Speaker 06:
Well, in my mind it does.

[00:27:06] Speaker 06:
In your mind?

[00:27:07] Speaker 06:
Yes, I'll get to a bigger problem.

[00:27:08] Speaker 09:
Okay, go ahead.

[00:27:09] Speaker 06:
Okay.

[00:27:11] Speaker 06:
Or were you ever recognized as the 9A rep?

[00:27:14] Speaker 06:
Meaning, are there employees in this unit?

[00:27:16] Speaker 06:
The answer was no, we didn't ask for those things because they don't need to, which is fine.

[00:27:20] Speaker 08:
Right.

[00:27:22] Speaker 06:
Those hearing briefs,

[00:27:23] Speaker 06:
We're arguing Union Plaza, but this is a mixed unit.

[00:27:27] Speaker 06:
The ALJ finds this is a mixed unit and Sunrise has an bargaining obligation.

[00:27:33] Speaker 06:
The board, what she actually says is the board has jurisdiction because this is a mixed unit.

[00:27:37] Speaker 06:
They're both.

[00:27:37] Speaker 06:
Okay.

[00:27:39] Speaker 06:
Now on exceptions to the board.

[00:27:41] Speaker 06:
Now we are squarely.

[00:27:42] Speaker 06:
Once the ALJ makes that finding, this is mixed.

[00:27:47] Speaker 06:
You're squarely in the mixed unit case.

[00:27:49] Speaker 06:
And sunrise in its exceptions to the board says wait a minute you don't have jurisdiction because still these are in fact supervisors but also the mutual intent of both parties.

[00:28:02] Speaker 06:
Was that this is a supervisory unit as expressed in the collective bargaining agreement.

[00:28:09] Speaker 06:
They cite cases where the union has asserted to the board and the courts that this is a supervisory unit over the years.

[00:28:16] Speaker 09:
Why wouldn't that have been an issue before the ALJ?

[00:28:18] Speaker 09:
If that's what Sunrise thought was really going on, the mutual intent of the parties that would have been litigated before the ALJ.

[00:28:26] Speaker 09:
That's the way those things work.

[00:28:28] Speaker 09:
If that's really their theory of the case, this is made up after the fact.

[00:28:32] Speaker 09:
The parties litigated one point.

[00:28:35] Speaker 09:
supervisor or not.

[00:28:36] Speaker 09:
Everything else is within the jurisdiction and their argument, the whole argument before the ALJ, before the trial going to the board was, are all these people supervisors and Sunrise felt we rise or fall on that.

[00:28:49] Speaker 09:
That was the case and the ALJ credibly found the company was wrong and the board did not reverse that finding.

[00:28:59] Speaker 06:
The board did not reach that finding.

[00:29:01] Speaker 06:
Did not reverse, but it also did not review.

[00:29:04] Speaker 09:
That's exactly right.

[00:29:05] Speaker 09:
Didn't reverse it or review it.

[00:29:06] Speaker 09:
Just ignored it and said, no, we just want to see what we want to tell you what we think the company was thinking.

[00:29:15] Speaker 09:
That's not the way any board has no support for this approach whatsoever.

[00:29:20] Speaker 06:
None.

[00:29:24] Speaker 06:
the factors that it relied on that I've mentioned to you.

[00:29:27] Speaker 06:
And the board doesn't see this as an affirmative defense that Sunrise raised.

[00:29:30] Speaker 06:
It sees the board, in the board's decision, the board is saying the ALJ should have asked this extra question.

[00:29:35] Speaker 06:
And the parties were discussing mixed unit cases and Union Plaza in their post hearing briefs to the union.

[00:29:40] Speaker 05:
But that's what's confusing because the board's approach typically has been first, is this in fact a mixed unit?

[00:29:50] Speaker 05:
And the ALJ found that it is, and that was in the,

[00:29:54] Speaker 05:
in the plan and in the exceptions, these are supervisory.

[00:29:59] Speaker 05:
And then one might imagine that there would be a defense, look, I really didn't engage in this voluntarily because I reasonably, I had no reason to think.

[00:30:13] Speaker 05:
The description in the collective bargaining agreement and whatever.

[00:30:17] Speaker 05:
But to say that at the beginning, without even inquiring into the actual facts on the ground,

[00:30:23] Speaker 05:
that this paper reference in a probably different context to supervisors is enough to terminate jurisdiction.

[00:30:31] Speaker 05:
That is not with the board.

[00:30:34] Speaker 05:
Now, the ordering of the inquiry.

[00:30:36] Speaker 06:
Well, I will certainly say that I can't find any other.

[00:30:42] Speaker 08:
You certainly can't.

[00:30:43] Speaker 08:
I appreciate your patience, your indulgence with with this attack from this part of the bench.

[00:30:50] Speaker 08:
It's not personal.

[00:30:51] Speaker 06:
I knew you would be.

[00:30:52] Speaker 05:
I'm sorry, didn't ask me.

[00:30:56] Speaker 05:
I was just going to ask about the.

[00:30:58] Speaker 05:
The text of the group, which is really the board leads very heavily on.

[00:31:04] Speaker 05:
And wouldn't it have to

[00:31:07] Speaker 05:
have some relationship to the statutory supervisory issue in order to be, to vitiate the employer's understanding that this is a mixed unit.

[00:31:22] Speaker 06:
Text of the collective bargaining?

[00:31:24] Speaker 06:
Yeah.

[00:31:24] Speaker 06:
Not necessarily.

[00:31:27] Speaker 06:
In our representation proceedings, parties can agree that employees are in units.

[00:31:34] Speaker 06:
They can say, we're going to put this accounting manager in,

[00:31:38] Speaker 06:
And that person may or may not be a supervisor, and they may argue about it later.

[00:31:41] Speaker 06:
But they can decide who's going to be in and who's going to be out.

[00:31:44] Speaker 06:
And they do not, in their contract, have to say, we are putting 211 supervisors in, or none of these people we promised are 211 supervisors.

[00:31:52] Speaker 05:
They can make an agreement.

[00:31:53] Speaker 05:
But to exclude them on the ground that they're not under board jurisdiction, they would have to be indicted that these are people who are not under board jurisdiction, whereas probably the way the term supervision is used is supervision of ship art.

[00:32:10] Speaker 05:
not of human beings with discretion and responsible hiring and firing and discipline functions.

[00:32:19] Speaker 05:
It has nothing to do with humans.

[00:32:21] Speaker 05:
In fact, it's possible that in supervising hull maintenance and cargo gear maintenance and the like, that there are no subordinate humans involved.

[00:32:32] Speaker 06:
And I will say that that may in fact be true.

[00:32:35] Speaker 06:
I mean, I can go through the record and give you examples where they are, but that doesn't, to the board, it doesn't matter, right?

[00:32:41] Speaker 06:
The board made no, the board made no findings that these were actually supervised.

[00:32:45] Speaker 08:
They just told us their understanding.

[00:32:47] Speaker 08:
It's absurd.

[00:32:48] Speaker 06:
So my arguing that they might maybe are is outside of my board decision.

[00:32:55] Speaker 01:
Thank you.

[00:32:57] Speaker 01:
Thank you.

[00:33:00] Speaker 01:
Ms.

[00:33:00] Speaker 01:
Cooper.

[00:33:12] Speaker 01:
Good morning, Your Honors.

[00:33:13] Speaker 07:
My name is Kara Cooper, and I am counsel for the intervener, Sunrise, in this matter.

[00:33:19] Speaker 07:
And I just wanted to talk briefly about the record in this case, because we believe that there is adequate record upon which to conclude that Sunrise voluntarily recognized a purely supervisory unit.

[00:33:33] Speaker 07:
So first, what we've talked about so far today is that Sunrise proffered the CBA

[00:33:40] Speaker 07:
The 1981 CBA, the unfair labor practice hearing.

[00:33:44] Speaker 07:
And we think that this is the best indicator of what Sunrise was thinking when it assumed the bargaining unit, the bargaining agreement in 2015.

[00:33:56] Speaker 09:
Why didn't you present that case to the ALJ?

[00:33:59] Speaker 07:
To the ALJ?

[00:34:00] Speaker 09:
Yeah.

[00:34:01] Speaker 09:
Well, we did talk about, we did introduce the CBA- The theory that the board announced was not presented to the ALJ.

[00:34:08] Speaker 09:
The board went off on its own with a theory you're comfortable with now.

[00:34:13] Speaker 09:
But that was not the case tried before the ALJ.

[00:34:16] Speaker 07:
I believe in our, and I know you don't agree with this, but in our affirmative defense that we believe that these are all supervisors and therefore the board doesn't have any jurisdiction.

[00:34:27] Speaker 05:
So you're not defending the board decision because that's not the basis of the board decision.

[00:34:32] Speaker 05:
The board did not hold that they're all supervisors.

[00:34:37] Speaker 07:
Right.

[00:34:38] Speaker 07:
Yeah.

[00:34:39] Speaker 07:
So we have a different position in that we believe that they are all supervisors and that our affirmative defense, when we said that they're all supervisors, we've had affirmative defenses, we believe them to be supervisors.

[00:34:54] Speaker 07:
Therefore, we did plead an

[00:34:57] Speaker 07:
But I understand that's not before.

[00:35:00] Speaker 09:
So you think the ALJ had the theory before that what the employer believed is dispositive and she had to decide that and failed to consider what you were raising.

[00:35:14] Speaker 09:
The ALJ was not considering what you're now arguing.

[00:35:18] Speaker 09:
You're kind of going in between the ALJ and the board, leaning toward the board, but certainly not the case that was presented.

[00:35:25] Speaker 09:
Everyone understands

[00:35:27] Speaker 09:
that what we're arguing about now is not what the ALJ had before.

[00:35:31] Speaker 07:
Did you think that there obviously was this discussion of mixed units and whether we had recognized a supervisory unit or a mixed unit?

[00:35:43] Speaker 07:
Right.

[00:35:45] Speaker 09:
And it mattered, the ALJ thought it mattered.

[00:35:48] Speaker 09:
In fact,

[00:35:49] Speaker 09:
What are the people doing in this unit?

[00:35:51] Speaker 09:
Because that answers the company's question either favorably or unfavorably.

[00:35:55] Speaker 09:
If I find their employees in a unit, then the company loses.

[00:35:58] Speaker 09:
That's the ALJ's case.

[00:36:02] Speaker 09:
You're shifting it now artfully.

[00:36:04] Speaker 09:
The board brutalizes it.

[00:36:08] Speaker 09:
But it's a different case.

[00:36:11] Speaker 09:
I don't have to go any further to be very honest with you.

[00:36:13] Speaker 09:
In my mind as a judge looking at an administrative proceeding in all the years I've done this, that can't happen.

[00:36:20] Speaker 09:
but no other reason than it's not fair.

[00:36:23] Speaker 09:
You can't try cases like that.

[00:36:26] Speaker 07:
And your honor, as you, you know, you know, the board, um, called to the ALJ for not doing the initial analysis as to whether sunrise voluntarily accepted a unit of supervisors, um, whether they had knowledge to that.

[00:36:44] Speaker 07:
Um, so,

[00:36:46] Speaker 07:
to answer your past question about the mixed unit and why the ALJ didn't rule on that.

[00:36:53] Speaker 07:
That is what the board spoke to.

[00:36:56] Speaker 05:
So you're arguing that you did argue before the ALJ that your client didn't voluntarily recognize the mixed unit because it had no understanding

[00:37:17] Speaker 05:
that it was a mixed unit, apart from whatever the realities on the ground are.

[00:37:22] Speaker 05:
It had no understanding that it was a mixed unit.

[00:37:25] Speaker 05:
That's correct.

[00:37:26] Speaker 05:
You made that argument before the ALJ.

[00:37:29] Speaker 05:
I think, I believe we did.

[00:37:31] Speaker 05:
A citation in the record for that, because that would be key to some of the questions about preservation, waiver, estoppel.

[00:37:42] Speaker 07:
No, it's just based on our affirmative defense.

[00:37:45] Speaker 05:
So you characterize as an affirmative defense, and that is more the conventional understanding that I have, is that if there were a basis for the employer to say, I had no reason to think there were any supervisors in this unit, that it would be an affirmative defense on the merits, not something that would deprive the board of jurisdiction.

[00:38:05] Speaker 05:
Is that also your understanding?

[00:38:09] Speaker 07:
I think it can be both.

[00:38:11] Speaker 07:
I think it can be affirmative.

[00:38:13] Speaker 07:
The way that the ALJ was thinking affirmative defense was that that would merit, because whether the LDOs were supervisor or licensed officers were supervisors or not.

[00:38:27] Speaker 07:
But I would say the affirmative defense also can be looked at.

[00:38:35] Speaker 07:
If you look at the board's decision in saying that

[00:38:39] Speaker 07:
you know, Sunrise's belief as to supervising the status of the videos is the initial.

[00:38:50] Speaker 01:
Thank you.

[00:38:50] Speaker 01:
Thank you.

[00:39:01] Speaker 01:
Why don't you take one minute?

[00:39:02] Speaker 01:
Yes.

[00:39:04] Speaker 04:
I'll try to do it even shorter than that.

[00:39:05] Speaker 04:
I just want to make one point, which is that the union at the hearing

[00:39:09] Speaker 04:
didn't take the position that it was a mixed unit.

[00:39:13] Speaker 04:
We took the position that none of the licensed staff officers were supervisors.

[00:39:18] Speaker 04:
And in fact, we put in evidence that the captains and the chief mates were statutory employees.

[00:39:25] Speaker 04:
And so then when we get the board decision that says we have this understanding that they're all supervisors, when in fact, we litigated that all of them were statutory employees, was a complete about-case

[00:39:39] Speaker 04:
Never was it argued what MMP understood.

[00:39:43] Speaker 04:
In fact, our whole argument was that they are in fact employees.

[00:39:48] Speaker 04:
And never was it argued what the employer understood in 1981 when the contract was negotiated, in 2015 when it was assumed, or in 2018 when we went back to the table and this issue did not come up.

[00:39:59] Speaker 04:
So I agree 100% that it's a fundamentally unfair decision.

[00:40:03] Speaker 04:
When I read it, I said, what case is this?

[00:40:06] Speaker 04:
Because having litigated the ALJ decision, I didn't know how you could even come up with the decision that the board did.

[00:40:13] Speaker 04:
It wasn't the same trial I was at.

[00:40:15] Speaker 04:
It's not supported by the record.

[00:40:17] Speaker 04:
I was just very glad that there is court review.

[00:40:19] Speaker 05:
Mrs. Samantha, what about the JA-12 and the board's decision of footnote eight?

[00:40:25] Speaker 05:
The board says respondent recognized

[00:40:29] Speaker 05:
I'm sorry, I'm reading the wrong footnote.

[00:40:31] Speaker 05:
The older cases, it's earlier, the older cases that the board relies on, it is, I'm sorry, JA4, Note 7, numerous federal courts have either found union-represented LDOs to be supervisors or treated them as such, and it cites several

[00:40:50] Speaker 05:
admittedly, older cases in which the union affirmatively so asserted that they were statutory supervisors.

[00:40:57] Speaker 05:
How do we work with those?

[00:40:59] Speaker 04:
Sure.

[00:40:59] Speaker 04:
So that wasn't something that came up through testimony at the hearing.

[00:41:03] Speaker 04:
It was something argued in the brief.

[00:41:05] Speaker 04:
And we did know of the existence of those cases and anticipated them.

[00:41:10] Speaker 04:
And what we argued in response is, first off, the 1975 decision where MMP

[00:41:18] Speaker 04:
it took a position on supervisory status predates the 81 agreement.

[00:41:23] Speaker 04:
Um, it's not even clear that it's an offshore unit that that applied to.

[00:41:27] Speaker 04:
Um, but also that since then, technology has changed.

[00:41:32] Speaker 04:
Um, this, the way that, uh, supervisory status is reviewed has changed.

[00:41:39] Speaker 04:
Um, and that maritime law has changed in the composition of the cruise has changed.

[00:41:44] Speaker 04:
So we,

[00:41:46] Speaker 04:
We litigated that in fact times have changed so that you can't, and case law has changed, so that you can't use those 70s and 60s decision to say what in fact should be ruled on for these workers today.

[00:42:04] Speaker 05:
I should have asked the board, but where you have a unit that the ALJ has determined is in fact mixed.

[00:42:10] Speaker 05:
In other words, there are some employees, some non-supervisors in the unit

[00:42:15] Speaker 05:
Do those employees continue with representation, or everybody loses it?

[00:42:23] Speaker 04:
They can enforce a mixed unit, so everybody would continue to have representation.

[00:42:30] Speaker 05:
But I'm saying under the board's ruling, where the board to remand to the LJ, get substantiation, if we don't reverse the board's ruling,

[00:42:41] Speaker 05:
Does everybody lose?

[00:42:43] Speaker 05:
Yes.

[00:42:44] Speaker 05:
Why wouldn't the employees who nobody disputes are because they're understood by the employer to be supervisors?

[00:42:52] Speaker 09:
The board saying it has no jurisdiction saying it's not a viable unit.

[00:42:56] Speaker 09:
So the board is effectively saying, so they can walk, an employer can walk away from it.

[00:43:00] Speaker 04:
Right.

[00:43:00] Speaker 04:
So we can't get the information that we were entitled to under law.

[00:43:04] Speaker 04:
We can't go to arbitration.

[00:43:05] Speaker 05:
So if those employees wanted to organize and leave out the people who the employer understood to be supervisors, they would have to start a new unit.

[00:43:18] Speaker 04:
It's, it's not fair.

[00:43:19] Speaker 04:
I mean, the board just says, Oh, just go file something else.

[00:43:21] Speaker 04:
I mean, and you saw with the motion to reconsideration,

[00:43:25] Speaker 04:
Two of the three said it was wrongly decided.

[00:43:28] Speaker 04:
It said just starting new, go back to the board and file something for, yeah, so it's not exactly clear how you would play that out.

[00:43:37] Speaker 09:
You know, certainly- What's clear is the board said the employer can lawfully walk away from this.

[00:43:41] Speaker 09:
Obligations that would otherwise be enforced under the NLRA, the board says, will not be enforced for anyone, the employees or the supervisor.

[00:43:50] Speaker 04:
Even for statutory.

[00:43:51] Speaker 09:
So we're starting there.

[00:43:52] Speaker 09:
That's all the board tells us.

[00:43:54] Speaker 09:
which is unprecedented.

[00:43:55] Speaker 04:
Right.

[00:43:57] Speaker 04:
Thank you.