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Case number 22-1261 et al.

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American Medical Response of Connecticut, Inc.

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petitioner versus National Labor Relations Board.

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Ms.

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Lammers for the petitioner, Mr. Loro for the respondent.

[00:00:29] Speaker 05:
Good morning, Your Honors.

[00:00:30] Speaker 05:
May it please the court, Caitlin Cassetta-Lammers, arguing on behalf of American Medical Responsive Connecticut, Incorporated, which I will refer to as AMR during my argument.

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AMR is here today asking this court to grant its petition for review and deny the cross application for enforcement of an order and decision issued by the National Labor Relations Board, which requires AMR to provide to the union, which represents some of its employees, certain information.

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I'd like to focus my argument today on two particular categories of information.

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The first is call volume data, which AMR asserts is confidential and proprietary information.

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And the second is response time data, which is a set of information for which the union has never been able to assert relevance and instead the board has improperly asserted its own explanation of relevance, which is not permitted pursuant to this court's own rulings.

[00:01:29] Speaker 06:
Before you do that, can I ask you a question about, there's a lot of argument in your brief about the changes in the union's requests that were sort of three different iterations of it and how the board reacted to that.

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But even if they are of different scope,

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Have you argued anywhere that all three of them would not nonetheless be presumptively relevant?

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Because however broad or not they were seeking information about employee powers.

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Are all three, whatever they cover, presumptively relevant?

[00:02:11] Speaker 05:
Yes, we are not asserting that any of the three requests are not relevant.

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The question was... Presumptively relevant.

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Yes.

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So the first request was overly broad and the parties discussed amendment of that request.

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In AMR's opinion, that request was then withdrawn and replaced with a new request for seniority lists, which was responded to by AMR, which stated it didn't have such a seniority list.

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And the final iteration, all of which were identified as new requests by the union itself, was for employees impacted by brownouts, which AMR contends to this day is a request that is vague because of the subjective nature of the

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of that term.

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You still agree that all three, just to be clear, are presumptively relevant?

[00:02:56] Speaker 05:
Yes.

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It's not a question of relevance.

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The question of relevance does not stand alone, though.

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There are other reasons why an employer would not be obligated to respond to a request, such as the request being overly broad or being vague, and those are things the parties discuss.

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What case from this court, or I guess you can tell me another court, if there's none from this court, holds that you need not respond at all

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to an overly broad request as long as it contains, that seeks presumptively relevant information.

[00:03:29] Speaker 05:
There is not a case with that holding your honor.

[00:03:31] Speaker 06:
Cases that say the opposite?

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There are cases that say that an employer has an obligation to set forth the reasons for its objections to a relevant request for information.

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And AMR contends that it did.

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It didn't challenge relevance.

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There are also cases that say you need to provide what you,

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at least the subset of clearly presumptively relevant information within an overly broad request.

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You can't just give them nothing.

[00:03:56] Speaker 05:
Yes, understood.

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And so for the overly broad request, the parties had started to have a discussion by telephone about potentially how that could be narrowed.

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And then the union, in essence, issued a new request for different information, setting aside the first request.

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That's why

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the employer has urged this court to reject the board's finding that all three of those requests built upon each other and instead examine each one individually.

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And if I may, I'd like to talk now about the confidential and propriety.

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So Ms.

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Lammers, I'm interested in what do you think the board did with respect to confidentiality?

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Did it determine that you had forfeited the confidentiality argument by failing to propose accommodative bargaining, or did it actually make a finding about confidentiality?

[00:04:52] Speaker 05:
It's a little bit of both, Your Honor, in my opinion, because the board says at various points in time that there's not enough support for the assertion that the information is confidential or proprietary.

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And then at other points in time, it says, well, you waived the ability to engage in accommodative bargaining because you didn't explain the exact nature until the hearing before the administrative law judge.

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I think in both regards, the National Labor Relations Board is incorrect.

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There is clearly board precedent and precedent from this court, which acknowledged the importance of accommodative bargaining and its role in balancing a union's right or need for information from a company with the company's legitimate concerns about confidentiality and the proprietary nature of information.

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And so- And for the case law, who has the burden of initiating accommodative bargaining?

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The employer holds the burden to raise the confidentiality and I think leave room for the parties to engage in bargaining.

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Leave room, I don't know what that means.

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My reading of the cases was that the employer had to then engage, the employer had to engage in the accommodate of bargaining.

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That wasn't a burden on the union.

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The employer has all the information so they know what alternatives there are, what conditions they might be able to release information on.

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Am I wrong about that?

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I don't think you're wrong about that, but I don't think that AMR at any point in time foreclosed the opportunity.

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Foreclosed is not the same thing as meeting a burden.

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That's why I asked the burden question.

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Sure, and so I think that the

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The AMR, these parties had regular communication, not only by way of the request for information and the responses that are in the record, but you can also see emails that regularly went back and forth between parties.

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What is the best thing you can point to in the record that says having asserted confidentiality, or they didn't even assert confidentiality, having asserted that the call response information was proprietary, having asserted that, what's the best thing you can point me to in the record that shows that the employer then

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met the rest of its burden, and that was to engage in accommodative bargaining.

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What did the employer do?

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I believe that in each and every one of the responses to the request for information, the employer indicated its willingness to meet and discuss, or at least have a discussion about the responses that were provided by the employer.

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Read me where they said, let's meet and discuss about how we can accommodate your request for this information.

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I think that I would, I don't think I can get you that exact paraphrasing, but whatever.

[00:07:23] Speaker 06:
You can have different words, but to have that same input.

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Sure, I think that each of the responses, there is a line from Mr. Knupp that says, please contact me if you wish to discuss.

[00:07:38] Speaker 06:
Okay, so that is them meeting their burden.

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I saw that, so that in your view is what requires them, that satisfies,

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their burden of engaging in accommodative bargaining is saying, we assert that it's proprietary.

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Let me know if you wanna talk about it.

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Yes, we assert that it's.

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The case says that is sufficient for accommodative bargaining to meet the employer's duty of accommodative bargaining.

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I think it can be extrapolated from the decisions that that's enough, but I also wanna.

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Which case do you think allows us to extrapolate that all they have to say is, we assert it's proprietary, we're not handing it over.

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Let me know if you wanna talk.

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to eventually to accommodative bargaining?

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No, to say that that satisfies the duty not only to assert confidentiality, but also to initiate the accommodative discussion process.

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In order to privilege the response entirely.

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Is that what you're asking about?

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No, because that, of course, won't establish privileges because they've asserted it.

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But to preserve and to properly assert

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a claim of confidentiality.

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To place the onus back on the union to get back.

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I don't know if there is a case that's precisely like that.

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Is there anything remotely like that?

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I think that there are cases that exist before the board where an employer's encouragement or allowance that it would engage in discussion.

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Okay, was those encouragements or allowances worded the same or closely similar to what we have here?

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I would not say that they're identical.

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I'm not asking identical if they're closely similar.

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Give me your best example of what an employer said that the board said that's fine.

[00:09:23] Speaker 05:
Well, I think ultimately, if you look at a case like Minnesota Mining, that's a case where the board said that is enough.

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They said it's a trade secret in the correspondence.

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I believe they didn't explain any further until the hearing, and the board there said that's the appropriate amount of explanation necessary.

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That was to establish confidentiality.

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What about the dual aspect here that the board relied on, which is you also have to, you have to,

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And you open the door, initiate the process of accommodative bargaining.

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Was that discussed in that case?

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I think in Minnesota mining, it was relatively similar that in their response, they simply asserted it was a trade secret, the information that was being sought, which I think was like a chemical compound.

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But I think that there, too, they didn't

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proactively engage until the hearing before the administrative law judge wherein they provided more explanation and then the board found that, okay, there is a legitimate confidentiality in certain interests which leads us to need to find for accommodative bargaining.

[00:10:25] Speaker 04:
What is the employer's duty in a situation like this where they've asserted not just confidentiality over the call volume data but also relevance?

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I mean, does the employer in that circumstance have an affirmative

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duty to propose accommodative bargaining sort of at the first moment it asserts confidentiality?

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Yes, I see my time has expired.

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I assume it's okay for me to answer your question.

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So I think that in the case where the employer is asserting, as it is here, both that the information sought was not relevant and then also that it was confidential and proprietary, you know, there's essentially

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a double burden.

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I think that the proving of the relevance of information when it's on bargaining unit information is less rust with the union.

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And I don't on behalf of the employer attempt to shirk the burden that the employer holds to identify information as proprietary or confidential.

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However, it is

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the employer's position that it's entirely inappropriate to carte blanche order that the employer hand over what there seems to be no dispute is indeed confidential and proprietary information.

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That was established at the hearing before the administrative law judge and there's been no rebuttal or challenge to that by either counsel for the general counsel or the union.

[00:11:44] Speaker 06:
Which response letter described it as confidential?

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That was not in the response letters.

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They say they state proprietary.

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That's not the same thing as confidential.

[00:11:55] Speaker 06:
No, but during the hearing before the administrative law, they never asserted confidentiality until they got to the hearing.

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Yes, I think that would be accurate to state.

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And I think that that I mean, if you look standards, proprietary and

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There are not.

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Wait, has the court said that proprietary means?

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There's all kinds of information companies have that's proprietary.

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It's not confidential.

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A trademark is proprietary.

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It's not confidential.

[00:12:22] Speaker 05:
Sure.

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There is a term of art that's frequently used in these cases, proprietary and confidential.

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I think you're right, Your Honor.

[00:12:29] Speaker 06:
They just sort of proprietary and not confidential.

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So if that's the term of art is proprietary and confidential.

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But here, all they said was proprietary, then that's worse for them because they must have known the term of art.

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and they left out confidential.

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And so they did not assert confidentiality at all until the actual hearing.

[00:12:45] Speaker 05:
Your Honor, I don't know if they would have known the term of art.

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That's not established by the board.

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It's not a term of art if employers don't know it.

[00:12:52] Speaker 06:
Okay, so then I. As the board said, proprietary, just asserting that it's proprietary information, which is very broad for any company and far broader than confidentiality, that's enough to alert the union

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that they're asserting confidentiality as well?

[00:13:11] Speaker 05:
I do not know of a case that holds that.

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Again, typically the board uses the parlance, proprietary and confidential.

[00:13:18] Speaker 05:
And confidential, okay.

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Now that being said, I would point you to the transcript in the case where Mr. Knop, the individual who responded on behalf of AMR to the request for information, he and Mr. Scheidinger both testified to the conversation between Mr. Knop and Mr. Scheidinger, where Mr. Knop said, can we provide call volume data

[00:13:38] Speaker 05:
And Mr. Scheidinger testified that he responded, no, I consider that to be confidential.

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So something might have gotten lost in translation, but certainly the company never abandoned its position that that information was confidential.

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My time is very well expired.

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I don't know if.

[00:13:56] Speaker 02:
Well, that's OK.

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So once the employer finally makes a more specific response at the hearing,

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to explain its reasonable withholding information.

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Is there a case in which, even Minnesota mining, in which that untimely representation results in accommodative bargaining?

[00:14:29] Speaker 05:
Yes, I believe that is in Minnesota mining.

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And there's a few others that are cited in our brief as well as in member rings dissent.

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And that actually, it is entirely logical and within the purview of the board's remedial discretion that accommodative bargaining would be border.

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The board has the authority to issue remedies, which would reset the parties to the position they would have been in had the unfair labor practice not been made.

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cases in which the board weighs the competing interests here.

[00:15:06] Speaker 02:
Is that only if there's accommodated bargaining and it reaches an impasse?

[00:15:13] Speaker 05:
I think that the way in which it would, are you referring to, for example, the court's statement that accommodative bargaining is helpful to the parties because it lets them flesh out the balance, and then the board also has a more complete record upon which?

[00:15:28] Speaker 02:
Well, that's what I'm saying.

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Is it only when there's been accommodative bargaining that, in an impasse, that the board actually comes in and weighs interest, or does it do that even

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without accommodative bargaining and say, well, we've heard your claims and we've heard the union's demands and so on, and we're going to order production because we believe, let's say, the union's need is greater.

[00:15:59] Speaker 05:
There are cases where the board orders production, but I can't think of a case where they did so on the basis of an argument that the need was greater.

[00:16:09] Speaker 05:
Most of the cases state, yes,

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The employer is now stating that this information is confidential and proprietary, but they made a blanket claim.

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For example, there is a case cited by the board where there are, think about seven requests, and all the employer said in response to any of them is this is confidential.

[00:16:27] Speaker 02:
So a blanket claim is no good at all, right?

[00:16:30] Speaker 02:
It's like no claim.

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Correct.

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It's not perfected by explanation.

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In this case itself, the order to produce, does that

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Does that in any way limit the union's use of the information?

[00:16:49] Speaker 05:
No.

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And that's the problem for the employer.

[00:16:51] Speaker 02:
So there's no sort of automatic provisions or practice that follows from that order?

[00:17:00] Speaker 05:
No.

[00:17:00] Speaker 05:
With the board's order as it stands,

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The union could take the information and bring it to four competitors of AMR who would then bid on the same state, county, local government contracts using the call volume data to undermine the bid submitted by AMR.

[00:17:16] Speaker 02:
That kind of limits- You've argued at one point that that was punitive.

[00:17:20] Speaker 05:
Yes, and I believe this is the point I was going to make about the board's remedial authority.

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The board does not have the authority to issue any remedies which are punitive in nature.

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The board's remedial authority, though broad, is limited to its authority to sort of create a reset to where the parties would have been had there not been a dispute, and that would be accommodated bargaining.

[00:17:42] Speaker 02:
So in other words, if the employer had provided the information, instead of violating the act,

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and so held, the counterfactual world is one in which then the employer would be sold.

[00:18:07] Speaker 02:
Your claim is not perfected.

[00:18:13] Speaker 02:
You've got to turn it over.

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All you can do between now and turning it over is engage in accommodated bargaining.

[00:18:20] Speaker 05:
I think that what it would have looked like had it proceeded before the board in that manner would have been you, the employer, have asserted the confidentiality in a way that we, the board, consider appropriate and therefore accommodative bargaining would be the next step which would need to take place.

[00:18:37] Speaker 02:
Consider it appropriate?

[00:18:40] Speaker 02:
Yes.

[00:18:41] Speaker 02:
In my hypothetical, it's like this, the board says,

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It's not adequate.

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So your claim is not adequate.

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So you've got to turn something over.

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Now, what happened here is they say, well, just turn it over.

[00:18:54] Speaker 02:
And the question is, should there have been some accommodative bargaining before turning it over?

[00:19:00] Speaker 02:
Only about the conditions that might be agreed to once the material has been given to the union.

[00:19:07] Speaker 05:
Yes, I mean, I suppose at the very least.

[00:19:10] Speaker 05:
I think that the better remedy for the board is the one acknowledged by this court in prior rulings it has issued, wherein the parties engage fully in accommodative bargaining, not necessarily just with the condition about how the union could use the information,

[00:19:25] Speaker 05:
because the parties might actually be able to make greater progress in either narrowing the request or providing information that is not particularly proprietary and confidential or in a way that assuages the concerns of the company.

[00:19:38] Speaker 05:
But yes, in the alternative, at the very least, what the board has done here is require an employer

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to turnover information that it has clearly articulated will create for the employer an issue of competition in the marketplace and that extends beyond the board's obligation and indeed duty to balance the interests of the employer against the right of the union to the information.

[00:20:06] Speaker 02:
When the employers can file the blanket claim and it's of no utility to it.

[00:20:12] Speaker 02:
I don't see how the union can be obligated in accommodative bargaining to pursue a narrowing of the material.

[00:20:21] Speaker 02:
The board's forfeited.

[00:20:22] Speaker 02:
I mean, the employers forfeited that.

[00:20:25] Speaker 05:
If it were the case here that there was never an elucidation by the employer of the particular reasons for the marking of the information as proprietary and confidential, then yes, I would agree with you.

[00:20:36] Speaker 05:
It would be difficult for the union to narrow.

[00:20:38] Speaker 02:
Well, what if they're here?

[00:20:39] Speaker 02:
There's nothing.

[00:20:40] Speaker 05:
Here there is the testimony from Bill Scheidinger, who is the regional manager, wherein he explained that in the transcript of the hearing before the administrative law judge, that if this information is released publicly, it gives competitors

[00:20:56] Speaker 05:
the ability to look at, for example, how many, so call volume data, just to briefly explain, is the number of calls that are submitted, and then the number that they ultimately respond to.

[00:21:07] Speaker 05:
If competitors can see that, and AMR is charging X thousand dollars a month, they can undercut the bid.

[00:21:15] Speaker 02:
Similarly- I didn't see anything in the testimony, this was at 1551 in the JA, about the response time.

[00:21:26] Speaker 02:
only about the call volume.

[00:21:28] Speaker 05:
Okay, and so response time is in the transcript.

[00:21:31] Speaker 05:
It's in a different spot.

[00:21:32] Speaker 05:
I direct you to, there are definitions of response time that occur on pages 39 and 53 of the appendix.

[00:21:41] Speaker 06:
Wait a minute.

[00:21:42] Speaker 06:
Do you have certain confidentiality as to those?

[00:21:44] Speaker 05:
No, no.

[00:21:45] Speaker 05:
The argument there, if you'll permit me to make it with the time I've taken thus far.

[00:21:50] Speaker 06:
Yeah, I just don't mean to interrupt you.

[00:21:53] Speaker 05:
I will get to that.

[00:21:54] Speaker 02:
Oh, you said 39 and 53?

[00:21:56] Speaker 05:
Yes, 39 and 53 are both.

[00:21:59] Speaker 02:
They're on 39.

[00:22:00] Speaker 05:
If you're on page 39 of the appendix looking at page 195 of the transcript.

[00:22:05] Speaker 05:
Yes.

[00:22:06] Speaker 05:
There is an answer that begins on line 19.

[00:22:10] Speaker 05:
Our response times are from the time we received the call and dispatch until the time we're dispatched, until the time we get on scene, and then time to the hospital.

[00:22:18] Speaker 05:
So it's kind of like start time to finish time.

[00:22:22] Speaker 02:
That doesn't say anything about why that's confidential.

[00:22:26] Speaker 05:
No, the employer is not asserting confidentiality as to the response times.

[00:22:30] Speaker 02:
Okay, so it's really just the call volume, because that's really all that's discussed at 51.

[00:22:36] Speaker 05:
That's precisely correct.

[00:22:38] Speaker 02:
So why did you begin your argument by saying you wanted to talk about call volume and response

[00:22:42] Speaker 05:
I do want to talk about response times, but for a different reason.

[00:22:45] Speaker 05:
And that's a question of the board's abuse of its authority.

[00:22:48] Speaker 06:
I promise we'll let you do that.

[00:22:52] Speaker 06:
If I forget, remind me.

[00:22:55] Speaker 06:
Can I just continue on this confidentiality issue?

[00:22:58] Speaker 06:
So has the board ever ordered accommodative bargaining without first finding that the information is in fact confidential?

[00:23:07] Speaker 05:
I do not know of a case where they would have ordered accommodative bargaining without finding a confidentiality.

[00:23:14] Speaker 06:
The ALJ found as a matter of fact that confidentiality had not been established.

[00:23:20] Speaker 06:
There was some testimony at the hearing, but the ALJ discredited and the board adopted that factual finding.

[00:23:28] Speaker 06:
And so the record before us is that double factual finding here, that it isn't confidential.

[00:23:37] Speaker 06:
Where in your brief do you challenge that factual finding and argue to us that it was factually erroneous to conclude that this information was not confidential?

[00:23:48] Speaker 05:
I think we argue it in all the sections where we argue that it was indeed confidential.

[00:23:54] Speaker 06:
I did not see anywhere in there that they got the facts wrong.

[00:23:57] Speaker 06:
Here is why.

[00:23:59] Speaker 06:
Or law, if there's a law that renders this stuff confidential.

[00:24:02] Speaker 06:
Tell me where you've made this clear error argument that, and persuasive arguments that this is in fact something that's treated as confidential.

[00:24:13] Speaker 05:
Yes, I would believe that is discussed both in the discussion of the standard of review in our principal brief, and then I'm looking- The standard review just says clear error.

[00:24:31] Speaker 05:
The standard of review also says what would constitute error and also sets forth the case law, which establishes what confidential information is as defined by the board.

[00:24:43] Speaker 06:
And so where is your argument in the brief that here's the facts beyond the facts that we're given?

[00:24:50] Speaker 06:
I mean, I don't know what you're going to do because what fact did they ignore in finding that it wasn't confidential?

[00:24:55] Speaker 05:
I think the testimony from Scheidinger is the fact that the administrative law judge and the board both sort of glossed the explanation of the confidentiality.

[00:25:08] Speaker 06:
They glossed it, so tell me what's more substantial.

[00:25:10] Speaker 06:
I mean, what I understood was he said our competitors would like this.

[00:25:13] Speaker 05:
I think it's a little bit more explanatory than that if you look at the testimony.

[00:25:17] Speaker 05:
It certainly is our competitors would like it.

[00:25:19] Speaker 06:
I mean, competitors like to know wage information, but that's not confidential under labor law.

[00:25:24] Speaker 06:
Competitors like to know all kinds of information that you have to disclose to unions.

[00:25:28] Speaker 06:
What hours are people working?

[00:25:29] Speaker 06:
How many employees do you have?

[00:25:31] Speaker 06:
How much do you pay them, right?

[00:25:33] Speaker 06:
Sure.

[00:25:33] Speaker 06:
You have to disclose that.

[00:25:34] Speaker 06:
So the fact that competitors would like it or could use it does not make something confidential in labor law.

[00:25:40] Speaker 06:
Yeah, right.

[00:25:41] Speaker 06:
So tell me where the testimony is that there's something more than competitors would like this information.

[00:25:46] Speaker 05:
Well, I think I would have to point you necessarily to the testimony from Mr. Scheidt, which is the appendix and it's going on.

[00:26:08] Speaker 05:
appendix 50 to 51.

[00:26:10] Speaker 06:
Okay and what does he say there that the board or the ALJ I mean the board agreed with the ALJ but the ALJ missed it shows that he was the ALJ or the he or she committed clear error and finding this was not confidential information which

[00:26:28] Speaker 05:
I'm on page, you said 50, start with 50, so is there- Yeah, page 50, and if you're looking at page 302, I concede that this is about competitors liking the information.

[00:26:40] Speaker 05:
I would argue that it's more detailed than simply competitors like the information, but it has an actual- Certain employees are able to see that information.

[00:26:51] Speaker 05:
Yes, I don't want to make presumptions that are not supported by the record, but I'm thinking that Mr. Scheidinger is referring to management.

[00:26:57] Speaker 05:
And I think that ALJ and his decision really focused more on the concept that there wasn't enough of an explanation given in response, written response to the information requests, rather than any sort of focus on the testimony from the hearing, which I think he just described as a- This goes back to a question I asked you earlier in this argument, was whether, do you concede that the ALJ made factual finding about confidentiality or proprietary information?

[00:27:26] Speaker 04:
Or did the ALJ rest on some idea of waiver or lack of sufficient explanation?

[00:27:32] Speaker 04:
Because I think that actually makes a big difference in the standard of review and how we view this.

[00:27:37] Speaker 05:
Yes.

[00:27:38] Speaker 05:
And I stand by my answer that I think that in the analysis of the question of the confidentiality and proprietary nature, there is sort of a mix.

[00:27:47] Speaker 05:
Because the first thing that is found by the ALJ, which is later adopted by the board, is that the written responses which raise the proprietary nature of the information are insufficient as a, I suppose, matter of fact in law.

[00:28:02] Speaker 05:
And then the second argument that's made by the ALJ that's adopted by the board is that the confidentiality assertion that came at the hearing before the administrative law judge essentially came too late.

[00:28:16] Speaker 05:
for the employer to claim that accommodative bargaining.

[00:28:21] Speaker 04:
If coming too late is different from a finding that the information is in fact not proprietary or confidential.

[00:28:29] Speaker 05:
Right.

[00:28:29] Speaker 05:
And that's why, in response to Judge Millett's question, I was going to point out, I think that even though the judge

[00:28:38] Speaker 05:
made some amount of finding regarding the nature of the information.

[00:28:42] Speaker 05:
It was mostly just to say, it was too late, rather than to say, this information is certainly not confidential.

[00:28:49] Speaker 05:
It was a little too little and a little too late, to sort of paraphrase.

[00:28:53] Speaker 06:
Even if this concludes, he says, here's what, first time at trial, Scheidinger claimed the call volume data was proprietary, because if disclosed, it could be used by competitors against respondents.

[00:29:04] Speaker 06:
Are we stating exactly your point?

[00:29:05] Speaker 06:
Even if this exclusive explanation was sufficient, and I do not find that it is, we found that not sufficient to establish confidentiality.

[00:29:14] Speaker 06:
It's right there in the opinion.

[00:29:17] Speaker 06:
And at the same time, on your point on confidentiality, when you look at this testimony, he says, well, some employees have it.

[00:29:24] Speaker 06:
We share it with customers.

[00:29:25] Speaker 06:
We have to disclose it sometimes to government agencies.

[00:29:29] Speaker 06:
There's a lot more than that to establish confidentiality.

[00:29:32] Speaker 06:
Say we give it to some people here, we give it to customers who can give it to competitors.

[00:29:38] Speaker 06:
We give it to government agencies.

[00:29:39] Speaker 06:
Is it a matter of public record?

[00:29:40] Speaker 06:
Did you talk about that?

[00:29:42] Speaker 06:
This is not something they hold confidential.

[00:29:45] Speaker 05:
There was a discussion, I think, about the information given to public agencies, but I don't think it's conclusive in nature, I think Mr. Scheidinger said.

[00:29:52] Speaker 06:
Nobody gives it to customers.

[00:29:54] Speaker 06:
Some employees have it.

[00:29:56] Speaker 06:
Yes, I don't know.

[00:29:56] Speaker 06:
You can understand why the court thought it might not be confidential.

[00:30:00] Speaker 02:
My mistake in giving it to customers is only their own data.

[00:30:05] Speaker 02:
We give the customer on request its own data.

[00:30:09] Speaker 05:
Right, and I don't know, the record is not clear as to the specifics of whether there are, in fact, limitations on the customer's use or dissemination of that data.

[00:30:18] Speaker 02:
Well, that would be.

[00:30:19] Speaker 02:
I don't think why there would be, since it's their own data.

[00:30:21] Speaker 02:
They could have collected it themselves, but it's easier to get it

[00:30:25] Speaker 05:
actually I don't know I'm not positive and I don't think the record reveals whether it's AMR's data the way the contracts work for a company like AMR is they are contracted by let's say the town the city of New Haven Connecticut to provide emergency medical transport

[00:30:41] Speaker 05:
And so AMR would be the keeper of the data about doing that, but they would be doing it pursuant to a contract with the city.

[00:30:47] Speaker 05:
Those contracts are frequently voluminous and they have all kinds of provisions, including provisions for the information, like hall volume data, but they could also have corresponding, you know,

[00:30:58] Speaker 06:
limitations for example but not we don't know because there isn't testimony here that in fact the company treated this as confidential and held it close or required restrictions I mean if the client is a public agency a safety health and safety agency and they want this information is there any evidence on the record that says the government itself

[00:31:23] Speaker 06:
keeps this confidential.

[00:31:25] Speaker 05:
There is, at the very least, the evidence that AMR does all that it can to closely hold the data, even when responding to inquiries from the government, such as responding to bids to provide services.

[00:31:37] Speaker 06:
Where's the, they say we do abs, well, the fact we do it the most that we can may not render it confidential.

[00:31:42] Speaker 06:
Where does it say we do absolutely everything we can to keep it confidential?

[00:31:46] Speaker 05:
It's with 51.

[00:31:50] Speaker 05:
I would say, I don't know if it's absolutely everything, but I think it's significant that Mr. Scheidinger gave testimony that the company is willing to exchange the right to negotiate over the increases in costs to the contract in order to protect call volume data by completing a short form application each time they bid on services.

[00:32:11] Speaker 02:
Line 19 on 303.

[00:32:15] Speaker 02:
Other than just providing volume to our customers,

[00:32:18] Speaker 02:
Their call, specifically, we don't hear these call by any other customer or any other employee unless they're mandated to report order or statement.

[00:32:29] Speaker 02:
Yes.

[00:32:29] Speaker 02:
So it's the customer's own data.

[00:32:33] Speaker 05:
Yes, I think it's accurately described as the customer's own data.

[00:32:36] Speaker 02:
So at 42 in your brief, you argued the board and the ALJ implied that in order to gain the protection afforded by the board's precedent,

[00:32:46] Speaker 02:
the company needed to explain precisely how its own information could be used against it.

[00:32:52] Speaker 02:
This is too high a standard and not one required by the board's precedent.

[00:32:57] Speaker 02:
See, for example, Detroit Newspaper Agency.

[00:33:01] Speaker 02:
So I think that's the sum, all you've said about why, to the effect that the board and the ALJ erred in not treating what was given as sufficient to establish confidentiality.

[00:33:17] Speaker 02:
is held to too high a standard of precision.

[00:33:21] Speaker 05:
Yes, I think that that would be accurate to the extent, aside from the passing reference that the ALJ made, I do feel that if you look at the decision issued by the ALJ and the board, they are focused primarily in saying, a paraphrase, I'm paraphrasing, too little, too late.

[00:33:38] Speaker 05:
But if the board had actually stopped to examine the confidentiality information,

[00:33:45] Speaker 05:
you know, the testimony that was adduced at the hearing and still said that, you know, you should have said that back when you originally provided it.

[00:33:54] Speaker 05:
The argument the company is making is that that sets too high a standard.

[00:33:57] Speaker 02:
So your position, it was not too little, even if it was too late.

[00:34:02] Speaker 05:
Not too little and not too late, because there are other cases wherein the board has found that provision of more detailed explanation at hearing before the administrative lodge, basically Minnesota.

[00:34:14] Speaker 05:
Yes, and I think there is at least one or two others.

[00:34:17] Speaker 05:
Minnesota mining is the most factually similar to the case at Barr in my opinion.

[00:34:22] Speaker 06:
Does any state or municipal law require any disclosure of coal volume data, at least for Connecticut, I guess or New Haven?

[00:34:31] Speaker 05:
Again, there was testimony about the state law disclosures, but I think the record is unclear at best as to whether it requires the release of any call volume data.

[00:34:42] Speaker 06:
Mr. Scheidinger was asked about that.

[00:34:52] Speaker 05:
Later in his testimony upon cross-examination by Mr. McGrath, Counsel for the General Counsel, there's some discussion about, are you familiar with state laws and what do they require you to provide?

[00:35:02] Speaker 05:
And Mr. Scheidinger says, I don't have them in front of me.

[00:35:04] Speaker 05:
I don't know exactly what it is.

[00:35:06] Speaker 06:
So the testimony was that he didn't know if he was releasing this stuff at our state law?

[00:35:10] Speaker 05:
I think the testimony was he can't think of any time where he does release call volume data.

[00:35:15] Speaker 05:
And when asked about the state laws, he had no recollection or there was no testimony offered that it was released as part of

[00:35:22] Speaker 06:
So he said, no, we've never released this.

[00:35:24] Speaker 06:
And I'm not aware of any state law that requires me to do so.

[00:35:27] Speaker 05:
I would point you to 50 to 51 for his statement that, no, we never release this unless it's to our own customers.

[00:35:36] Speaker 05:
And then later, I would have to pull the site for you.

[00:35:40] Speaker 05:
I'm not sure I have it readily available where he's being questioned by Mr. McGrath.

[00:35:44] Speaker 06:
We'll find it then.

[00:35:47] Speaker ?:
OK.

[00:35:48] Speaker 06:
Is there more on this or should we go on to your response time?

[00:35:52] Speaker 06:
Response time data.

[00:35:57] Speaker 05:
So with regard to response time data, a brief definition first.

[00:36:00] Speaker 05:
Response time data is, in essence, what it sounds like.

[00:36:03] Speaker 05:
The amount of time that it takes for an AMR ambulance to respond to a call requesting transport.

[00:36:10] Speaker 05:
Response time data was requested by the union in multiple of its requests for information.

[00:36:17] Speaker 05:
The problem is that the union has never been able to set forth the relevance of the response time data and instead relevance was provided first by the administrative law judge and his decision adopted by the board and then also by the board itself in their opinion.

[00:36:36] Speaker 05:
This is problematic because this court has recognized that the board is beholden to analyze relevance on the grounds that are asserted by the party requesting the information rather than some explanation or understanding of relevance that the board or the judge were

[00:36:55] Speaker 05:
able to come to on their own.

[00:36:57] Speaker 05:
And so here, the union did not provide the relevance of the information during the underlying correspondence between the parties.

[00:37:08] Speaker 05:
At the hearing, the union asserted that the relevance was to determine the location of Bridgeport Cruise, which is non-bargaining unit information.

[00:37:18] Speaker 05:
And the information requested, simply the response times, it's still not clear to me after many hours with this case how response time data would be relevant to either the union's concerns about the browning out of shift or the union's concerns about subcontracting.

[00:37:38] Speaker 06:
Tell me, as a layperson, what is in response time data?

[00:37:44] Speaker 06:
What is in there?

[00:37:45] Speaker 06:
Sure.

[00:37:45] Speaker 06:
It's just there was a call, it was three minutes, or is it who answered, you know, which ambulance answered?

[00:37:52] Speaker 05:
There are two points in which response time data is defined by the parties in the transcript.

[00:37:57] Speaker 05:
Page 39 of the appendix and page 53 of the appendix.

[00:38:02] Speaker 05:
Are they consistent?

[00:38:04] Speaker 05:
Basically, yes.

[00:38:06] Speaker 05:
And both of them will illustrate to you that it's time.

[00:38:09] Speaker 05:
It's start time and time, maybe some times.

[00:38:13] Speaker 05:
on route.

[00:38:15] Speaker 05:
So it'll be the time the call is dispatched, the time in route, the time arrived at the scene.

[00:38:20] Speaker 05:
But there's no indication on questioning on either 39 or 53 that anything besides the amount of time is included.

[00:38:29] Speaker 06:
Is this the information that the folks on the ambulance are themselves supposed to sort of record?

[00:38:37] Speaker 00:
Yes, and I think it happens.

[00:38:38] Speaker 06:
So it doesn't reveal who it comes in, but that doesn't include

[00:38:44] Speaker 05:
There is no record evidence as to, other than these definitions of what response time data would be, which are just about times of there being other evidence.

[00:38:57] Speaker 06:
So you wouldn't know if, or other information.

[00:39:00] Speaker 06:
This is not this case, but if you had an ambulance crew that was, these folks were slow.

[00:39:06] Speaker 06:
They were just always slow.

[00:39:10] Speaker 06:
And so you're gonna get a few times a day,

[00:39:13] Speaker 06:
Wow, it took these people forever to get from here to here to the hospital.

[00:39:18] Speaker 06:
Right.

[00:39:19] Speaker 06:
The employer's never gonna be able to tie that response data to a particular ambulance.

[00:39:26] Speaker 05:
The employer may very well have the means to tie that data to an ambulance, but the response time data itself, as defined by both parties, doesn't tie that.

[00:39:36] Speaker 06:
They'd have to have some other information that they interpolate with.

[00:39:40] Speaker 05:
One would presume, and I think this is precisely why

[00:39:43] Speaker 05:
If you look at the ALJ's decision, the administrative law judge's decision, and the board's decision, they actually contradict each other when they explain improperly the relevance.

[00:39:54] Speaker 05:
The ALJ says, well, if you're seeing fast response times, it must means New Haven crews are taking the calls.

[00:40:00] Speaker 05:
Whereas member Ring in the board's decision says, well, if you're seeing fast response times, it must mean that there are ambulances from Bridgeport picking up the calls.

[00:40:07] Speaker 05:
And this is precisely issue.

[00:40:10] Speaker 05:
First of all, the union has never asserted either of those rationales for relevance.

[00:40:15] Speaker 05:
And second of all, those rationales are just not supported by the factual record because response time doesn't include all this other information that the board and the administrative law judge presume that it does.

[00:40:28] Speaker 05:
In fact, the administrative law judge says presumably it would show us this, meaning that there was

[00:40:34] Speaker 05:
No evidence in the record or any evidence presented by the union that the data would be relevant.

[00:40:39] Speaker 06:
It presumably has.

[00:40:41] Speaker 06:
It's folks are the ones that are driving these ambulances and they know when they worked.

[00:40:47] Speaker 06:
And if they don't have they can get data that some of the stuff they were seeking.

[00:40:52] Speaker 06:
So they can put two and two together as well.

[00:40:55] Speaker 06:
They see this past response time on a day when they were I'm just hypothesizing a lot of brownouts.

[00:41:01] Speaker 06:
they can put two and two together.

[00:41:02] Speaker 06:
And the union did say this is, we want this as part of our effort to figure out if you are staff in Bridgeport, not staffing, employing Bridgeport ambulances for calls.

[00:41:14] Speaker 06:
after Browning out in New Haven.

[00:41:16] Speaker 06:
That was their concern all along.

[00:41:18] Speaker 06:
They kept repeating, and that was sort of the explanation they gave for this.

[00:41:21] Speaker 05:
Did they have to do more than that?

[00:41:23] Speaker 05:
I actually don't even think they gave that explanation.

[00:41:26] Speaker 05:
Mr. Smith, Nate Smith, the representative of the union who wrote the request, was asked on cross-examination, why did you ask for the response time data?

[00:41:34] Speaker 05:
And he states to see the location of Bridgeport employees, which doesn't, it's hard to define

[00:41:41] Speaker 05:
how that could be determined from the response time data.

[00:41:44] Speaker 05:
It doesn't follow.

[00:41:46] Speaker 06:
That was a testament, but I thought that the exchanges that were, as you keep saying, there was these ongoing exchanges between everybody.

[00:41:53] Speaker 05:
Sure, I think.

[00:41:54] Speaker 06:
And that they were clear again and again and again and again what their concern was.

[00:42:00] Speaker 06:
And my recollection, if you tell me if I'm wrong, is that they said they want this information, this call response time to know as part of their inquiry into whether you are

[00:42:12] Speaker 06:
is staffing your calls or canceling us out and using non-union employees for New Haven calls.

[00:42:18] Speaker 05:
They raised the request for response time data in a request for information which generally said it was related to the investigation and then later the grievance into subcontracting.

[00:42:29] Speaker 05:
However, it is still the case that it is unclear as a matter of relevance

[00:42:35] Speaker 05:
how raw response time data would allow the union to divine anything about whether subcontracting is occurring or not, and the union never set forth the manner in which it thought the two could be related, that explanation was provided only by the judge and the board, and even they contradict each other on how it could be useful, because the record is just so devoid

[00:43:02] Speaker 05:
of a full examination of the relevance of that information.

[00:43:06] Speaker 06:
Is response time, at least when it pertains to the New Haven employees, presumptively relevant because it's blocking their work time?

[00:43:16] Speaker 05:
Well, it might be presumptively relevant as to New Haven employees, but that is not the reason that the union articulated for wanting the data.

[00:43:25] Speaker 06:
But if it's presumptively relevant, they don't even have to give a reason.

[00:43:28] Speaker 05:
I don't think it was presumptively relevant.

[00:43:30] Speaker 06:
I thought you just said it might be presumptively relevant as to the New Haven employer.

[00:43:34] Speaker 05:
Perhaps if they had made the request specific to New Haven employees instead of directed at the entity which is the operational organization in New Haven, that maybe there might be an argument it's presumptively relevant, but that's not how the request is phrased.

[00:43:53] Speaker 05:
they're requesting.

[00:43:56] Speaker 05:
I don't think it is in this case a matter it might be over broad but I think first the question is the the relevance examination has to happen first even with regard.

[00:44:10] Speaker 05:
Again, yes, but I don't know how the response times for New Haven only would be relevant to the question of the subcontracting issue.

[00:44:20] Speaker 05:
It's only in combination with operationally the organization as a whole.

[00:44:23] Speaker 06:
If it's presumptively relevant, they don't have to give an explanation.

[00:44:26] Speaker 06:
They may figure out how they're going to put this jigsaw puzzle together.

[00:44:29] Speaker 06:
So I don't think it's sufficient for an employer to say that we don't understand how something that's presumptively relevant is relevant.

[00:44:36] Speaker 02:
How it can be presumptively relevant because

[00:44:39] Speaker 02:
It's not obviously tied to the wages, hours, and working conditions of the unit employees.

[00:44:45] Speaker 02:
If you put away the presumption, I can readily imagine saying, well, look, if the response times are getting long in New Haven, that's the occasion for bringing in non-unit employees.

[00:44:58] Speaker 02:
True.

[00:44:58] Speaker 02:
Then I can look at, well, when, you know, tried to piece together, when did they have a greater need, because the long response times,

[00:45:07] Speaker 02:
and what evidence is there that they actually then took non-unit people in?

[00:45:14] Speaker 05:
And I think that all of this is a legitimate discussion of potential rationales, but importantly, it is not what the board determined, it's not what the judge determined, and it's not what the union asserted at any point in time in the underlying record.

[00:45:31] Speaker 05:
So even if it were true, that is not the approach that was taken here instead,

[00:45:37] Speaker 05:
the judge and the board said, well, it's apparent that it would be relevant because presumably, literally using the word presumably, it would show this.

[00:45:49] Speaker 05:
So I think that it remains the case that the employer's position is that the union never established the relevance of those requests.

[00:45:56] Speaker 05:
It had the burden to do so, it did not do so, and the judge and the board erred when they improperly substituted their own rationales.

[00:46:05] Speaker 05:
Having this?

[00:46:06] Speaker 02:
Am I correct in thinking that

[00:46:08] Speaker 02:
dissent in this case did not dissent as to response time.

[00:46:14] Speaker 05:
You are correct.

[00:46:15] Speaker 05:
Member ring is actually the member of the board.

[00:46:18] Speaker 05:
who stated in the board's opinion that he did not rely on a theory of readily apparent relevance, but instead said, I can essentially extrapolate.

[00:46:29] Speaker 05:
If I look at the other things that were requested, that this data might show that response times are faster because Bridgeport employees are responding, which is the exact opposite of what administrative law Judge Gollin said, which was, if response times are low, it means New Haven employees are responding.

[00:46:45] Speaker 05:
I guess my point is that the factual record doesn't support either of those conclusions, and none of them were asserted by the.

[00:46:52] Speaker 04:
Ms.

[00:46:52] Speaker 04:
Liemers, can you speak a little bit about waiver?

[00:46:55] Speaker 04:
I found the briefing a little confusing as to what precisely AMR's waiver argument is.

[00:47:03] Speaker 04:
So maybe you can clarify.

[00:47:05] Speaker 05:
With regard to Article 23.03 of the collective bargaining agreement, so I would describe that to this court as a threshold argument.

[00:47:14] Speaker 05:
similar to if you're determining whether parties have a right to bring their case in federal court versus whether they are obligated by a contract to arbitrate it.

[00:47:25] Speaker 05:
The board will tell you that it won't delve into interpretation of the party's collective bargaining agreement to say whether the union

[00:47:34] Speaker 05:
had waived its right to bargain with the employer during the COVID-19 pandemic.

[00:47:40] Speaker 05:
Our position on behalf of the employer is simply that by waiving its right in the event of a disaster like the COVID-19 pandemic to have any involvement in things like shifts or scheduling,

[00:47:52] Speaker 05:
the union has essentially waived its right to request information associated with those waived subjects.

[00:48:00] Speaker 04:
And that's like the... So is your argument that 23.03 is an indirect waiver of information rights?

[00:48:08] Speaker 04:
Like it waives certain subjects or certain topics and information rights are sort of incidental to that?

[00:48:18] Speaker 04:
Or is your argument that 23.03 directly

[00:48:22] Speaker 04:
waives information rights.

[00:48:24] Speaker 05:
I think it is the position, it is the position of the employer that it's a direct waiver because it in section 23.03 which is on page 145 of the appendix

[00:48:37] Speaker 05:
It states the employer shall be relieved of any and all obligations here under relating to scheduled pay time off, posting, shift changes, and transfers in the event of or during the term of a disaster or catastrophe such as fire, flood, explosion, power failure, earthquake, or other acts outside the control of the employer and causing disruption to the employer's normal operations.

[00:48:59] Speaker 05:
That use of any and all obligations is a direct waiver.

[00:49:03] Speaker 05:
It's not indirect and relating to.

[00:49:05] Speaker 05:
Yes, any and all obligations relating to and so a.

[00:49:10] Speaker 05:
request for information relating to shift in scheduling is an obligation of the employer relating to shifts in scheduling.

[00:49:18] Speaker 05:
That's our argument on waiver.

[00:49:20] Speaker 05:
We are not asking this court or the board to enter into the merits.

[00:49:25] Speaker 05:
As I explained before, I would term it a threshold inquiry that's necessary based on the language of the contract on its base, which is something the board does all the time.

[00:49:35] Speaker 04:
And so then the remedy would be to remand to the board to decide that issue.

[00:49:40] Speaker 05:
I think that this court would have the authority to vacate the board's order and find that there is a waiver that is something that the board, that this court has done in other circumstances and in other cases that you could vacate.

[00:49:55] Speaker 05:
You could also remand it to the board and ask the board to address in the first instance that threshold argument pertaining to the contract language.

[00:50:06] Speaker 02:
The board didn't address it?

[00:50:10] Speaker 05:
The board simply said that it will not inquire into the merits of a contractual dispute in the parties.

[00:50:17] Speaker 05:
And our position is it's not an inquiry into the merits of the contractual dispute.

[00:50:23] Speaker 05:
It's a question, it's a gatekeeping question, a threshold question.

[00:50:26] Speaker 05:
And the board did not decide the issue of waiver.

[00:50:28] Speaker 05:
They did not.

[00:50:30] Speaker 05:
No.

[00:50:32] Speaker 05:
They said to do so would be to inquire into the merits of the party's contract.

[00:50:36] Speaker 06:
And just, I want to make sure I'm clear, because I kept getting confused as I was thinking about this.

[00:50:42] Speaker 06:
With that language, any and all obligations relating to, and then it lists the different categories.

[00:50:48] Speaker 06:
And your argument is that that is a direct and specific waiver of the information right.

[00:50:57] Speaker 06:
There's two ways to do it.

[00:50:58] Speaker 06:
One is that's just fun.

[00:51:00] Speaker 06:
That means information, right?

[00:51:01] Speaker 06:
Whatever else any and all relating to includes, it includes the information right that goes with those things.

[00:51:07] Speaker 06:
or the second argument would be that, look, this 23.03 waiver, shall we call it, temporary waiver, takes these shift changes off the table.

[00:51:21] Speaker 06:
Normally information rights go with you have a substantive right to bargain over that, but this took those off the table, and so this is not as a matter of contract tax, but sort of as the,

[00:51:34] Speaker 06:
is the wrong word, but sort of the common law of the rationale for the information right, when a substantive obligation to bargain goes away, like it suddenly becomes like an exclusively employer right, then the information right goes with it.

[00:51:47] Speaker 06:
But you're saying the first is textually waived as to information

[00:51:56] Speaker 06:
And you're not saying the second, or are you sort of saying?

[00:51:59] Speaker 05:
I am also saying the second, which I think is borne out by the board's own case law and the ADT decision, wherein the board recognized a contractual waiver of the union of right to bargain over a subject, and therefore said, since you waive the right to bargain over that subject, you've also correspondingly waived the right to request information about it.

[00:52:19] Speaker 05:
It's, it is.

[00:52:20] Speaker 05:
That's like the second thing.

[00:52:21] Speaker 05:
Yes, I would say that's, yes, the first is.

[00:52:25] Speaker 05:
Yes, I would call the first one the threshold argument.

[00:52:27] Speaker 05:
The textual argument.

[00:52:28] Speaker 05:
Exactly.

[00:52:29] Speaker 05:
I'd call the second one the argument based on the board's past precedent, which is if you waive it in a contract, then you can't request information about it.

[00:52:40] Speaker 06:
Have any of the other board cases that you're aware of involved?

[00:52:44] Speaker 06:
Some of those things are just as a matter of the CBA, something is always employer discretion.

[00:52:48] Speaker 06:
It's just not.

[00:52:49] Speaker 06:
At least the ones I saw that I think that in First Energy were.

[00:52:52] Speaker 06:
things that were just never in the union's wheelhouse.

[00:52:55] Speaker 06:
But this is a temporary one.

[00:52:59] Speaker 06:
Are there any cases where they've had similar, maybe in the post, maybe there were a lot of this post pandemic, and they've told us how we think about that, because one can imagine a union saying, you're right, I couldn't have bargained about it from 2020 to 2022 or 21, whatever it was.

[00:53:15] Speaker 06:
I still need to know what happened then, because now it's back in my wheelhouse, union wheelhouse, and I need to know about what happened then so I can bargain better

[00:53:23] Speaker 06:
disaster provisions going forward.

[00:53:24] Speaker 06:
Have there been any that you're aware of like that?

[00:53:26] Speaker 05:
I'm not aware of any like that.

[00:53:28] Speaker 05:
Typically, the waiver is one that, you know, they're waiving a right about a particular subject for the, and I guess I would argue that the union's willingness to waive in disaster circumstances is a, not a temporary, but in fact, a permanent waiver.

[00:53:47] Speaker 05:
that they're essentially saying whenever.

[00:53:49] Speaker 05:
I don't know, that's the question.

[00:53:51] Speaker 05:
Yeah, that would be.

[00:53:52] Speaker 06:
It hasn't spoken on whether it's not permanent because it's only during the time of disaster.

[00:53:57] Speaker 05:
Right.

[00:53:57] Speaker 06:
I agree with that.

[00:53:58] Speaker 06:
So the question is whether that just walls that period of, I think it's what you're saying, that period of time is just walled up.

[00:54:06] Speaker 06:
Yeah, that would be my position.

[00:54:07] Speaker 06:
But a union could say, oh no, we couldn't have asked between 2020 and 2022, but now it's 23 or 24 and we want to ask so that we can

[00:54:16] Speaker 05:
Certainly, and I think that just speaks to the potential propriety of remand because that is an issue that.

[00:54:25] Speaker 05:
Yes, I mean, I do still think it's within this court's discretion if they were to themselves.

[00:54:32] Speaker 05:
want to vacate the order and issue a decision, but I also think that the board is, remand would be appropriate.

[00:54:40] Speaker 05:
The board would be entitled to weigh in on that, particularly because their decision simply just did not broach the subject matter of the argument and discussion we're having today.

[00:54:49] Speaker 06:
Any other questions?

[00:54:54] Speaker 06:
I hope you have a very long time.

[00:54:55] Speaker 05:
I will rest on my briefs for what is left.

[00:54:57] Speaker 06:
I know you had one more quick point you wanted to make, but if not, then thank you very much for helping us.

[00:55:17] Speaker 03:
Good morning, Your Honors.

[00:55:19] Speaker 03:
May it please the Court, I am Greg Laurel for the National Labor Relation, asking the Court to enforce the Board's orders, supported by substantial evidence on the record and as consistent with settled law.

[00:55:30] Speaker 03:
Of course, I'm happy to answer any questions the Court may have, but if I may start with the issue just discussed, the disaster provision and waiver.

[00:55:40] Speaker 03:
It is settled law.

[00:55:42] Speaker 03:
that this court and the board do not pass on the merits of parties, even contract interpretation or the merits of the grievance and assessing relevance under the liberal discovery.

[00:55:55] Speaker 03:
We cite the Chief College case from the court, which cited the Supreme Court's decision and act.

[00:56:00] Speaker 04:
But I would- Mr. Miller, doesn't the board decide threshold waiver questions?

[00:56:07] Speaker 03:
Well, the board can decide threshold waiver questions, but in the context of this case, under the liberal discovery standard, the question is at most, is the information of potential aid to the union and actual, proof of actual violations of the contract are not necessary?

[00:56:24] Speaker 03:
At most, you have to have a possible or plausible violation.

[00:56:27] Speaker 04:
And I think when you look at this- But their argument here, this isn't about, sorry.

[00:56:31] Speaker 04:
Oh no, I was just gonna say, I mean, I don't think that's their argument here.

[00:56:33] Speaker 04:
I mean, their argument here is that 23.03 is a direct

[00:56:37] Speaker 04:
So it's not about the connection between the contract and the relevance.

[00:56:42] Speaker 04:
They're saying that they simply just don't have a right to this information.

[00:56:47] Speaker 04:
And those seem to be under the board's precedent questions that the board does answer in the first instance.

[00:56:54] Speaker 03:
Well, their argument is very unclear there, because what the union is trying to do here, and I'm trying to put this in context for the court, is in part determine whether there was a violation of the contract through subcontract, the increased use that the union could observe of non-unit employees performing work.

[00:57:13] Speaker 03:
My opponent's view appears to be that a provision that says nothing about subcontracting waives any union challenge to subcontracting,

[00:57:23] Speaker 03:
that it silently negates.

[00:57:25] Speaker 03:
another contractual provision that specifically seeks to contract, and that although the provision they rely on doesn't mention grievances, it negates another contractual provision that specifically speaks to grievances and the duty to provide a payment.

[00:57:40] Speaker 03:
So I would just submit, and I hold, board and courts have said, typically do not pass on the merits of the union's grievance in determining whether the union is entitled to information.

[00:57:52] Speaker 03:
But also, my opponents are.

[00:57:54] Speaker 03:
is clear on its face, the argument is clear on its face, it just doesn't bear out.

[00:58:10] Speaker 06:
First of all, sometimes when the board has said that in the past, it's because the dispute is about, they need the information to even dispute the contractual question.

[00:58:21] Speaker 06:
But this is a different type of contract provision that sort of says, it says, during the time of this disaster, and there's no dispute that it was appropriately invoked,

[00:58:33] Speaker 06:
or that it covers the time period at issue here.

[00:58:36] Speaker 06:
Those are not factual disputes.

[00:58:38] Speaker 06:
But if we're in this situation and this provision is invoked, things change dramatically.

[00:58:46] Speaker 06:
Shift changes, hours working, who's working, are wholly within the employer's province.

[00:58:56] Speaker 06:
They are off limits.

[00:58:57] Speaker 06:
They are no longer something over which the union has the right to bargain during the time of crisis.

[00:59:04] Speaker 06:
So two things.

[00:59:07] Speaker 06:
One, if that's true, then the board can't simply say, or their other reading is just as a matter of plain text, even the information right is waived by the any and all relating to, because the information right always relates to the substance of bargaining.

[00:59:25] Speaker 06:
So they're saying things are walled off.

[00:59:28] Speaker 06:
They're no longer even in your wheelhouse.

[00:59:32] Speaker 06:
And so the information right, you don't have a right to information about things that aren't in your wheelhouse.

[00:59:38] Speaker 06:
And for the board to say, we're not gonna get into the merits, they are resolving the merits in effect because they say provide the information.

[00:59:50] Speaker 06:
Well, once the information is provided, you can't get it back.

[00:59:53] Speaker 06:
So they have for all intents and purposes answered that question

[00:59:58] Speaker 06:
by their order without doing any analysis, because they've ordered them to provide the information that they say, when I read the contract, it says I don't have to provide the information.

[01:00:10] Speaker 06:
This is not a fight about getting information to deal with some other substantive aspect of a collective bargaining agreement.

[01:00:16] Speaker 06:
This is an argument that I don't have to provide information.

[01:00:22] Speaker 06:
The board can't say, we're not going to address that.

[01:00:25] Speaker 06:
It's just an information request.

[01:00:27] Speaker 06:
That defeats the whole contract.

[01:00:29] Speaker 06:
And they lose, right?

[01:00:30] Speaker 06:
They have to turn it over.

[01:00:31] Speaker 06:
They're not going to litigate these merits later, because the information's already out.

[01:00:35] Speaker 03:
Well, a couple of things, Your Honor.

[01:00:37] Speaker 03:
I appreciate your point, but this is not a law the board just made up.

[01:00:42] Speaker 03:
I mean, this court quoted

[01:00:44] Speaker 03:
court in ACME saying that the liberal discovery standard for relevance says nothing about the merits of the grievance and I understand your point but I just don't think it's so clear cut.

[01:00:54] Speaker 06:
The board itself has not been consistent because in ADT and in First Energy in both situations they said these topics are ones under the contract that are given to the

[01:01:05] Speaker 03:
Employer not the union and so there and so the information right falls with it the board itself It's not like the word itself is inconsistent because the issue of a unilateral change was charged the board found Through the contract the unions waived a right to bargain over that issue and now you're seeking information bargain over that issue

[01:01:29] Speaker 03:
It's a direct point.

[01:01:30] Speaker 03:
But in Stereocycle and Emory, the board also says that doesn't bar receiving information for some other representative purpose, like getting a grievance.

[01:01:39] Speaker 06:
Where did the board, in its decision here, grapple with the alternative precedent that says the opposite, that we don't order, that information right falls, goes away, if you don't have a right to bargain over something?

[01:01:52] Speaker 06:
You've got cases that say that, and I didn't see them grappling with that here.

[01:01:56] Speaker 03:
At page 13, the judge notes that this is unlikely to be a clear and unmistakable waiver of the right to sink.

[01:02:05] Speaker 06:
Unlikely to be?

[01:02:06] Speaker 03:
Well, the board says.

[01:02:09] Speaker 06:
Where did the board say?

[01:02:10] Speaker 03:
I'm sorry, what page?

[01:02:11] Speaker 03:
I'm sorry.

[01:02:11] Speaker 03:
This is page 13 of the decision.

[01:02:14] Speaker 03:
It's in the appendix of page 278.

[01:02:16] Speaker 03:
The judge finds respondent failed to show the union contract clear otherwise clearly and unmistakably waived.

[01:02:22] Speaker 03:
the right to the relevant information at issue, which is a reasonable finding, given the contractual language we're discussing, that we have conflicting provisions.

[01:02:32] Speaker 03:
And I would go back to what my opponent said.

[01:02:34] Speaker 03:
They want to say this is a threshold issue.

[01:02:37] Speaker 03:
We're not even really asking the court to interpret the contract.

[01:02:40] Speaker 03:
But you would have to to assess what happens to the explicit contract provisions.

[01:02:45] Speaker 03:
That's in the agreement, too, and the union's saying, we think that's violated.

[01:02:49] Speaker 03:
We have a basis for thinking that.

[01:02:51] Speaker 03:
We want information relevant to that investigation.

[01:02:54] Speaker 03:
The judge noted, we have a provision that says, contractually, you have to provide information that's relevant to a grievance.

[01:03:01] Speaker 03:
can you tell me where again i'm sorry you said 278 i believe it's 278 and it's basically routine of the division uh is 13 of the decision it's in the left column fairly new at the top and this is where the judge is making that important point that you have a provision that says you union has the right to file grievances to get information supportive

[01:03:24] Speaker 03:
And also, there's a subcontracting provision, and the union has a right to enforce it.

[01:03:31] Speaker 06:
All this does is tell me that there's more inconsistency in board decisions that wasn't dealt with here.

[01:03:35] Speaker 06:
All the ALJ says, here's a case.

[01:03:38] Speaker 06:
where they said you might still have to provide the information even if they don't have to negotiate over it, but we've got ADT and First Energy that say they don't have to negotiate over it, then the information right falls with it.

[01:03:51] Speaker 06:
So I'll ask again, where have they grappled with these contradictions in their precedent?

[01:03:57] Speaker 03:
Well, I mean, the judge noted this isn't a case like ADT, it's more like Stereocycle or.

[01:04:03] Speaker 06:
Where does he say, where does he distinguish ADT?

[01:04:06] Speaker 06:
He, I'm sorry.

[01:04:07] Speaker 03:
I'm sorry.

[01:04:08] Speaker 06:
No, where does the ALJ?

[01:04:12] Speaker 03:
At the top of the same page we were discussing, page 13, where ADT is not a case where the union is seeking the information for another legitimate representational purpose.

[01:04:23] Speaker 03:
And that's the point.

[01:04:23] Speaker 03:
It's one thing to say that a contract waives the right to bargain over it, but you can't get information just for the purpose of bargaining over it.

[01:04:33] Speaker 06:
But I guess I don't, maybe I don't understand that distinction.

[01:04:37] Speaker 06:
Well, another legitimacy and pursuing grievance.

[01:04:43] Speaker 06:
Right.

[01:04:43] Speaker 06:
They can't pursue a grievance over something because it was off the table, then how do they need the information?

[01:04:48] Speaker 03:
Well, the provision, the disaster provision, doesn't say anything about waiving grievances.

[01:04:52] Speaker 03:
And in addition... Well, the contract itself does, though.

[01:04:55] Speaker 03:
The contract doesn't say that.

[01:04:57] Speaker 03:
The contract mentions certain scheduling

[01:04:59] Speaker 03:
for certain issues about paid time off and leave.

[01:05:02] Speaker 03:
It's quite a leap from we control paid time off and leave saying we can replace you with not even employing an outstanding and express subcontractor.

[01:05:14] Speaker 03:
And also, my opponent's basically assuming the union has to take their word for it, that they're just applying the disaster.

[01:05:22] Speaker 03:
The union can ask the question, are you taking these actions we've seen?

[01:05:27] Speaker 03:
increased subcontracting and cut in hours.

[01:05:31] Speaker 04:
Apart from the merits of whether the waiver is valid though, I mean there are a number of board cases that say that the board has to decide whether the employees have waived their rights to information.

[01:05:45] Speaker 04:
Here the board just doesn't make that decision because it says it's not deciding the merits.

[01:05:49] Speaker 04:
I mean there are a number of cases, I mean there's like Boston mutual life insurance, quality building contractors,

[01:05:57] Speaker 04:
I mean, these aren't cases that the board cites here, but they stand for the proposition that when there is a waiver argument, the board will decide that.

[01:06:06] Speaker 04:
So they haven't decided that here.

[01:06:08] Speaker 04:
So, I mean, isn't that a problem?

[01:06:10] Speaker 04:
The board not following its own precedence?

[01:06:12] Speaker 03:
Well, I mean, I do.

[01:06:13] Speaker 04:
I mean, apart from the merits of whether there has been a waiver, you know, under the CBA.

[01:06:18] Speaker 03:
I see your understanding.

[01:06:19] Speaker 03:
I think the board is following precedence saying ADT is a different case, and here the union is requesting the information

[01:06:26] Speaker 03:
apart from, say, bargaining over an issue or bargaining.

[01:06:32] Speaker 03:
For example, the union can say, we don't know if you're really limiting yourself to this action that we're investigating.

[01:06:40] Speaker 03:
That would be covered by the provision.

[01:06:42] Speaker 03:
It looks like you're cutting unit hours right before there's a spike in volume in creating this.

[01:06:48] Speaker 04:
But that's, again, about the merits.

[01:06:50] Speaker 04:
It's not about deciding the waiver question itself.

[01:06:54] Speaker 04:
which the board's precedents say that it will do when there's an argument that there's been a waiver of information rights.

[01:07:01] Speaker 03:
Well, I understand.

[01:07:02] Speaker 03:
I mean, what the board said and discussed this is to cite its precedent in our brief.

[01:07:08] Speaker 03:
We cite the precedent of the court on the merits.

[01:07:13] Speaker 04:
So then does the board lose because they have failed to distinguish their earlier precedents?

[01:07:17] Speaker 04:
They've just sort of ignored them?

[01:07:19] Speaker 03:
They did distinguish them.

[01:07:22] Speaker 04:
Well, but not these other cases that say that the board has to determine the merits of whether there's been a waiver.

[01:07:28] Speaker 04:
So that in itself would normally be unreasonable.

[01:07:30] Speaker 04:
Agency action.

[01:07:31] Speaker 03:
And I'm not sure how clearly my opponent made that argument in their opening brief.

[01:07:36] Speaker 03:
I think their point was more, you don't even have to make an argument.

[01:07:40] Speaker 03:
An argument, which I think is wrong.

[01:07:45] Speaker 04:
So are you saying that they forfeited that argument?

[01:07:51] Speaker 03:
I'm saying that's up to the court to look.

[01:07:54] Speaker 03:
You're saying I don't know if that the board was obligated to assess that.

[01:07:58] Speaker 06:
You're not arguing that they forfeited.

[01:08:01] Speaker 03:
We didn't.

[01:08:01] Speaker 06:
And you're not now arguing forfeiture.

[01:08:05] Speaker 06:
You said you don't know.

[01:08:06] Speaker 03:
I'm not sure.

[01:08:07] Speaker 03:
I don't remember them making that specific argument.

[01:08:10] Speaker 03:
I could be wrong.

[01:08:10] Speaker 03:
It's in black and white.

[01:08:12] Speaker 03:
But word to the line of precedent saying, including from this court, that the board doesn't have those contractual provisions.

[01:08:20] Speaker 03:
I understand this is a potential waiver.

[01:08:25] Speaker 03:
But I can't say.

[01:08:26] Speaker 04:
Well, just that the board has two competing lines of cases.

[01:08:28] Speaker 04:
There are these cases, of course, that say they don't pass on the merits of contractual provisions.

[01:08:33] Speaker 04:
But there are other cases, a number of them, that say they do pass on the merits of whether there's been a waiver of information rights.

[01:08:41] Speaker 03:
in certain circumstances where the information requested is for the way of purpose.

[01:08:45] Speaker 04:
And the board doesn't even address those cases.

[01:08:48] Speaker 03:
I believe the board did address AD&T, making the point that we recognize AD&T is a waiver, recognize AD&T is a case where you waive the right to bargain over issue X. Now you're requesting information to bargain over issue X.

[01:09:03] Speaker 03:
That's a match, but this case is different.

[01:09:05] Speaker 03:
In this case, the union is seeking grievances.

[01:09:08] Speaker 03:
It doesn't waver.

[01:09:11] Speaker 06:
So your distinguish isn't substantive, it's that it's different for bargaining and grievances?

[01:09:16] Speaker 03:
Well, I'm just saying, just because you waive one issue doesn't mean you waive the right view.

[01:09:23] Speaker 03:
It's the distinction of judgment.

[01:09:25] Speaker 06:
The CBA separately provides, as to information requests for grievances, that it's only as to non-competential, non-privileged information.

[01:09:34] Speaker 06:
And I think their point would be 2303 creates privileges and more, but privileges that information from disclosure.

[01:09:41] Speaker 06:
So even specifically as to grievances.

[01:09:44] Speaker 03:
It doesn't but it doesn't say anything.

[01:09:48] Speaker 03:
My opponent.

[01:09:49] Speaker 03:
It's a bargain even grievances.

[01:09:53] Speaker 06:
I'm talking about I'm not talking about 2003.

[01:09:56] Speaker 06:
I'm talking about 16 away.

[01:09:57] Speaker 03:
All right.

[01:09:59] Speaker 03:
But that's the conflicting vision.

[01:10:01] Speaker 03:
That is the right to have information.

[01:10:05] Speaker 03:
to investigate grievances.

[01:10:06] Speaker 06:
Non-privilege and non-confidential.

[01:10:08] Speaker 06:
And if you think of the contract itself on the next page, or maybe not the next page, but in 2303, creates a privilege against disclosing information, then your distinction between bargaining and grievances isn't going to hold up under this contract.

[01:10:25] Speaker 03:
I mean, maybe not.

[01:10:26] Speaker 06:
This is for the board to figure out how this contract all fits together.

[01:10:30] Speaker 03:
No, I understand.

[01:10:30] Speaker 03:
Just something else I would point out

[01:10:33] Speaker 03:
AMR acts like the union just acquiesced to this idea that the disaster provision is the right to bring grievances, but certainly that's not the reason we brought grievances.

[01:10:46] Speaker 03:
We're still thinking about subcontracting and cutting down on violence.

[01:10:51] Speaker 03:
It's clearly not.

[01:10:51] Speaker 02:
Excuse me, Mr. Orr.

[01:10:54] Speaker 02:
Would you either speak up or closer to the mics?

[01:10:56] Speaker 03:
Of course.

[01:10:57] Speaker 03:
Is this better, Your Honor?

[01:10:58] Speaker 03:
Much better.

[01:10:59] Speaker 03:
Thank you.

[01:10:59] Speaker 04:
So let me ask you a hypothetical.

[01:11:02] Speaker 04:
So if if before the events here, AMR and the union had added a short provision to the collective bargaining agreement that something like the union waives all rights to information requests during the pendency of COVID.

[01:11:17] Speaker 04:
And then the employer, you know, raised that provision.

[01:11:21] Speaker 04:
as an explicit waiver.

[01:11:23] Speaker 04:
Wouldn't the board have to decide that question under its precedence, the cases that I've already mentioned?

[01:11:31] Speaker 04:
I mean, if there was a provision that says, you know, we waive all rights to information during COVID, wouldn't the board have to decide whether that applies?

[01:11:41] Speaker 03:
I think it would.

[01:11:44] Speaker 04:
So how is this case different?

[01:11:47] Speaker 04:
Because here AMR is saying 23.03 is a waiver of information rights.

[01:11:55] Speaker 03:
They're saying it's a waiver as to certain scheduling decisions.

[01:12:00] Speaker 04:
No, they're saying it's a waiver as to the information rights.

[01:12:03] Speaker 04:
They also make some arguments in the relevance area.

[01:12:06] Speaker 04:
But they're also saying, the way at least I read their brief and the way Ms.

[01:12:11] Speaker 04:
Lammers mentioned an argument, that it is a waiver of information rights.

[01:12:17] Speaker 04:
So so if you admit that like in my hypothetical the board would need to review that then I'm not sure how this is distinguishable Because in your I just feel like But they've argued that 23.03 is an explicit waiver I mean the board could conclude that it is not But under their precedence under the board's precedence.

[01:12:39] Speaker 04:
It seems that at least it has to decide that question at the threshold

[01:12:43] Speaker 03:
If it's such a threshold issue, then we have two things.

[01:12:46] Speaker 03:
We have the judge's finding that I discussed on page 278 where the judge explains there is not a clear and unstable information.

[01:12:57] Speaker 03:
But if the court feels that's a threshold issue the board didn't address, I can't say beyond that one site.

[01:13:04] Speaker 03:
There is a finding on that in the board's decision.

[01:13:06] Speaker 03:
The board didn't disavow the judge's finding on that.

[01:13:09] Speaker 06:
But if the court wants more and feels like... That wasn't interpreting the contract.

[01:13:13] Speaker 06:
That was saying this isn't like ADT because this involves agreements.

[01:13:17] Speaker 06:
Right.

[01:13:18] Speaker 06:
ADT involved agreements too.

[01:13:21] Speaker 03:
ADT involved information, seeking information, the bargain, the subject.

[01:13:25] Speaker 06:
And agreements.

[01:13:26] Speaker 03:
I'm acknowledging if the court feels the agency didn't address the threshold issue.

[01:13:34] Speaker 03:
I'm not convinced by my discussion of the findings that were made on that issue.

[01:13:38] Speaker 03:
It is a possibility for the court.

[01:13:40] Speaker 03:
What I can't do if you don't feel the findings are there is give them to you if they're not in court.

[01:13:46] Speaker 03:
But the board explained, and again, I know how you feel about this, but there is law on it, that it would not pass on the dispute of contractual interpretation.

[01:13:55] Speaker 03:
And I would leave you on that point with the thought that the union's interpretation of the contract is impossible.

[01:14:02] Speaker 03:
They're going to have to show an actual violation of the contract.

[01:14:05] Speaker 03:
It's at least a possible one, and they've done that.

[01:14:07] Speaker 03:
Because they're trying to enforce the subcontract.

[01:14:11] Speaker 03:
But if Your Honor has any questions about the other issue, I'm happy to answer them.

[01:14:15] Speaker 03:
I know the issue of confidentiality came up, although it was discussed, and we need to be precise with our term.

[01:14:22] Speaker 03:
They didn't actually raise any confidentiality claim into the hearing.

[01:14:26] Speaker 03:
They just made a blanket assertion.

[01:14:28] Speaker 03:
It's proprietary.

[01:14:29] Speaker 03:
The board and its decision are briefly in plain condition.

[01:14:33] Speaker 03:
You have to timely assert, substantiate, and make an offer to accommodate.

[01:14:39] Speaker 03:
your interest bargaining word explained and I think this is policy determination that allowing AMR to do what they did here of proprietary and then assert

[01:14:56] Speaker 03:
So this is a hypothetical assume.

[01:15:11] Speaker 06:
It has said it's confidential or proprietary and confidential because it is sensitive commercial information.

[01:15:22] Speaker 06:
You get a response like that.

[01:15:24] Speaker 06:
I'm an employer and put aside the accommodative bargaining part of it just for purposes that is that considered a sufficient assertion of confidentiality and nonconclusory?

[01:15:34] Speaker 03:
Can you repeat the language that you used?

[01:15:36] Speaker 06:
That is proprietary and confidential because it is sensitive commercial information.

[01:15:44] Speaker 06:
Acknowledging you know those aren't the facts here It still sounds Conclusory and what the board would have to look at is so how much proving is the employer supposed to do As to the union are they supposed to give them a little brief on?

[01:16:05] Speaker 06:
confidentiality law or the case law that tells us how much explanation.

[01:16:09] Speaker 03:
The board explains the policy of accommodative bargaining here, which is to give the union enough information so they can meaningfully understand the claim and bargain over possible accommodations that the employer makes.

[01:16:23] Speaker 02:
If the information at 50 to 51 in the GA had been provided in response to the union's first request, would that have

[01:16:34] Speaker 02:
adequately discharge the employer's obligation.

[01:16:41] Speaker 03:
The judge said no.

[01:16:45] Speaker 03:
I want to be candid that the board didn't separately address that issue.

[01:16:49] Speaker 03:
They didn't disavow the judge's finding but they didn't separately address that issue.

[01:16:53] Speaker 02:
Tell me again, louder, please.

[01:16:56] Speaker 03:
Of course.

[01:16:57] Speaker 03:
The judge, and I believe we discussed this this morning, noted that that explanation at the hearing was pretty conclusory, saying, again, this is page 13 of the decision, 278 of the appendix.

[01:17:10] Speaker 03:
Even if this conclusory explanation was sufficient, and I do not find it was, AMR never proposed or offered to bargain over an accommodation.

[01:17:20] Speaker 03:
But I acknowledge the board's main point here,

[01:17:23] Speaker 03:
and is supported by precedent is that the claim was waived by the employer failing to timely assert it, substantiate it, and propose an accommodation before the end.

[01:17:35] Speaker 03:
And that's consistent with settled law, and it's a reasonable policy.

[01:17:39] Speaker 02:
Well, if the information provided at the outset, it might not have been entirely sufficient, but surely it would have given the union enough to ask a follow-up question.

[01:17:51] Speaker 03:
It may have and will never know because

[01:17:53] Speaker 03:
that didn't happen and something I want to point out.

[01:17:56] Speaker 03:
I didn't hear AMR at any point explain why they couldn't have done this earlier.

[01:18:00] Speaker 03:
If they know whatever they call it, their proprietary claim, their confidentiality claim, whatever they finally claimed at the hearing, they could have explained that to the union earlier.

[01:18:10] Speaker 03:
And if they had, we might not be

[01:18:13] Speaker 03:
quote, but that's not an unreasonable burden.

[01:18:15] Speaker 03:
If they know their claim at the hearing, they should know it at the time as to why they can or cannot respond to a request.

[01:18:22] Speaker 03:
As this court noted in US testing, those kind of burdens are on the employer.

[01:18:25] Speaker 06:
I'm sorry.

[01:18:26] Speaker 06:
I'm having trouble hearing that, too.

[01:18:30] Speaker 03:
In US testing, this court noted, the employer is in the best position to decide how it can respond in an information request.

[01:18:37] Speaker 03:
And there's no reason they can't do that at the time of the request.

[01:18:41] Speaker 03:
You know, their explanation should be judged at the time of the request, not the hearing, because as the board explained, it would be untenable as a matter of policy to let an employer make a bare assertion here, as your honor noted, just of it being proprietary, which is much broader than confidential or tracing.

[01:18:58] Speaker 03:
and then only substantiated claim at the hearing and then start bargaining over accommodation.

[01:19:05] Speaker 03:
That's where it won.

[01:19:06] Speaker 03:
That would just encourage delay.

[01:19:09] Speaker 03:
The union at the time is not in a position to meaningfully understand the position and engage in bargaining.

[01:19:14] Speaker 03:
So the board made a reasonable policy.

[01:19:18] Speaker 02:
And what do you do with Minnesota mining?

[01:19:21] Speaker 03:
Well, Minnesota mining doesn't say anything to the contrary.

[01:19:24] Speaker 03:
First of all, nothing in Minnesota mining says, go ahead and make a bare assertion, just substantiate it later.

[01:19:29] Speaker 03:
But also, the facts in Minnesota mining are different.

[01:19:33] Speaker 03:
As was discussed this morning, just saying proprietary, which indicates ownership, is very broad.

[01:19:39] Speaker 03:
It's broader than confidential trade secret, which is what was said in Minnesota mining.

[01:19:43] Speaker 03:
And there were some findings that the union did say a little more.

[01:19:48] Speaker 03:
I mean, if the employer said a little more to substantiate its claim, saying, you know, we've got a secret recipe.

[01:19:57] Speaker 03:
We don't want to give it out.

[01:19:58] Speaker 03:
That's a little more specific than saying proprietary.

[01:20:01] Speaker 03:
And in the context, which is a highly technical manufacturing process, the union may understand better than it could have in this case what the employer was getting at.

[01:20:09] Speaker 03:
And I think this core oil chemical,

[01:20:12] Speaker 03:
in enforcing Minnesota mining noted that at a meeting prior to the hearing, the employer's position on trade secrets crystallized.

[01:20:20] Speaker 03:
And it might not have been very specific, but it was certainly more than we had here.

[01:20:24] Speaker 03:
But at the end of the day, AMR does not show why Minnesota mining, in other case, requires the board make a different policy choice than the reasonable one it made, which is that it would be untenable to allow parties to just make bare assertions and then substantiate or explain

[01:20:44] Speaker 03:
I think that's a reasonable policy choice.

[01:20:50] Speaker 02:
How does the order restore the status quo ante or do whatever should have been done had the law not been broken?

[01:21:00] Speaker 03:
Well, as to accommodation,

[01:21:03] Speaker 03:
the claims were waived.

[01:21:05] Speaker 03:
So the status quo ante isn't to make the union suffer a year of delay that could have been avoided by a timely confidentiality claim and then make them bargain over accommodation from square one all this time later.

[01:21:19] Speaker 03:
But AMRCs would not restore the status quo ante.

[01:21:22] Speaker 03:
They waived the claim.

[01:21:24] Speaker 03:
They could have made it earlier.

[01:21:25] Speaker 03:
They just didn't.

[01:21:27] Speaker 02:
Well, had they dealt with the union properly,

[01:21:34] Speaker 02:
Surely the result would not be that the material would be turned over without any limitations on its use.

[01:21:43] Speaker 03:
Had they made their claim properly?

[01:21:44] Speaker 03:
And to be clear, part of making your claim properly would be to propose an accommodation.

[01:21:49] Speaker 03:
One could say, for example, we really believe this is confidential.

[01:21:54] Speaker 03:
Here's why.

[01:21:55] Speaker 03:
And here's a confidentiality agreement or an agreement limiting the use that we're proposing.

[01:22:01] Speaker 03:
That is something that could have been done at the time, but unfortunately,

[01:22:04] Speaker 03:
And that's the employer not meeting its burden of substantiating its claim and proposing it.

[01:22:11] Speaker 02:
Given that it wasn't done, why is allowing the union to publicize the data or release the data anything more than punitive?

[01:22:25] Speaker 03:
Well, it's not punitive.

[01:22:26] Speaker 02:
This is relevant information that it's entitled to, and the employer... It's entitled to, but not that the world is entitled to.

[01:22:35] Speaker 02:
Right.

[01:22:36] Speaker 06:
Was confidentiality found here at any point?

[01:22:39] Speaker 06:
I mean, we still haven't found confidentiality, so for all we know, the world is entitled to it.

[01:22:44] Speaker 06:
This is a problem the employer had to prove.

[01:22:48] Speaker 06:
We don't get we don't normally restrict him I assume you tell me does the board normally restrict all information requests to just go to the Union or can they go to the world?

[01:22:56] Speaker 06:
I mean you can turn them over to the world absent restriction board doesn't automatically restrict So if it hasn't been proven to be confidential Right and it hasn't and I still see nothing in the record where they talk about they say well, we might have to do under state law Nothing in the record where they talk about call

[01:23:14] Speaker 06:
response times as to Call volume, I'm sorry, call volume as to state law.

[01:23:21] Speaker 06:
They talk about call response times, which they don't assert confidentiality, but call volume as to state law.

[01:23:26] Speaker 06:
They do say, well, you can turn it over to customers.

[01:23:29] Speaker 06:
Some employees might have to do it, might or might not have to do it under state law.

[01:23:34] Speaker 06:
And so the board, ALJ says, I don't think that's enough to establish confidentiality.

[01:23:40] Speaker 06:
even if it's belatedly asserted, even if I assume it was properly asserted at the hearing.

[01:23:45] Speaker 03:
That's right.

[01:23:46] Speaker 03:
And it wasn't.

[01:23:47] Speaker 06:
So why would there be any restrictions on disclosure without a finding of confidentiality?

[01:23:52] Speaker 03:
Well, I apologize if I misunderstood the hypothetical.

[01:23:55] Speaker 03:
I thought the question was if the employer presented and substantiated its claim in a timely way.

[01:24:03] Speaker 06:
People have to prove confidentiality in court all the time.

[01:24:07] Speaker 06:
If they haven't proved it, then the remedy doesn't include any protections for that information.

[01:24:11] Speaker 03:
They didn't prove it, but they also didn't preserve it.

[01:24:13] Speaker 06:
I know.

[01:24:14] Speaker 06:
But even if we assume they preserved it, they didn't prove it.

[01:24:18] Speaker 06:
Now, if someone thinks we're confused as to whether the board decided that or they actually decided that enough, then you can remand for a more specific determination of whether this was proven to be confidential.

[01:24:29] Speaker 06:
But we don't.

[01:24:32] Speaker 06:
But ALJ clearly said, and I don't think it was sufficient, and the board specifically said, and we agree,

[01:24:38] Speaker 03:
Right, and the board said the claim wasn't served.

[01:24:42] Speaker 06:
It also said it wasn't established.

[01:24:44] Speaker 02:
Right.

[01:24:46] Speaker 02:
My point is not that it's truly confidential.

[01:24:48] Speaker 02:
It was that if the union, pardon me, the employer had responded correctly to the union, they would have clearly turned over the information because it wasn't really confidential.

[01:25:03] Speaker 02:
Subject to some limitation,

[01:25:06] Speaker 02:
because the union had no interest in disseminating it anyway, and would readily have agreed not to do that.

[01:25:14] Speaker 03:
And if your honor means by responding correctly, that would either be we don't have a confidentiality claim, so we're turning over responsive information, or we do have a confidentiality claim, and we're substantiating it and proving it and proposing accommodation.

[01:25:31] Speaker 03:
Either way, unfortunately, it's not what happened.

[01:25:34] Speaker 04:
Mr. Moore, did the union here ask for any clarifications about the initial claim that the information was proprietary?

[01:25:45] Speaker 03:
I don't know that they were required to.

[01:25:47] Speaker 03:
I'm not sure they did.

[01:25:48] Speaker 03:
They clearly explained time and time again why they thought the information was relevant.

[01:25:51] Speaker 04:
Isn't there just some sort of general idea about good faith bargaining, right, where you want to have a, you said this is a reasonable policy choice, but what about the policy?

[01:26:01] Speaker 04:
I mean, the parties here are going back and forth

[01:26:04] Speaker 04:
on these information requests.

[01:26:06] Speaker 04:
I mean, if here the union had asked AMR for some clarification, and then that clarification came in response to the union's request, would that be sufficient?

[01:26:19] Speaker 03:
Possibly.

[01:26:20] Speaker 04:
But so then, so I mean, it just, it's not clear to me that the precedent suggests that, you know, an employer has to put forth, especially where there are multiple defenses, they're saying it's not relevant, they're saying it's proprietary,

[01:26:34] Speaker 04:
At that stage, how much information do they have to provide?

[01:26:40] Speaker 04:
And if the union doesn't ask for any clarification, maybe it was obvious to them why it was proprietary.

[01:26:45] Speaker 04:
Maybe they were just focused on relevance.

[01:26:47] Speaker 04:
I don't know.

[01:26:48] Speaker 04:
But isn't there some idea that the parties are supposed to try to work this out?

[01:26:54] Speaker 03:
Well, yes, but it's the employer's burden to get the ball rolling.

[01:26:59] Speaker 03:
And as this court said in U.S.

[01:27:01] Speaker 03:
testing, that's not an unfair bird.

[01:27:03] Speaker 03:
It's the employer who best knows how they can provide information.

[01:27:05] Speaker 04:
Well, in this zone of marketing, though, they get the ball rolling by saying it's a trade secret.

[01:27:10] Speaker 04:
and nothing else.

[01:27:10] Speaker 04:
And here they say it's proprietary and nothing else.

[01:27:12] Speaker 04:
I mean, that seems very similar to me.

[01:27:16] Speaker 03:
I don't know that it's similar when viewed in context because trade secret is more specific than proprietary, which as discussed this morning is much broader.

[01:27:26] Speaker 03:
It just means ownership.

[01:27:27] Speaker 03:
It doesn't even mean property.

[01:27:28] Speaker 03:
Trade secret means the secret in the context of an industry where they have a highly technological manufacturing process.

[01:27:35] Speaker 03:
And in any event,

[01:27:37] Speaker 03:
Nothing in that decision says, go ahead, just make bare assertions, the elder proposal, let's do it later.

[01:27:46] Speaker 03:
This court found something crystallized about the basis of the trade secrets claim before the hearing.

[01:27:53] Speaker 03:
That didn't happen.

[01:27:54] Speaker 03:
And I think it is fair.

[01:27:55] Speaker 04:
It did maybe not happen because the union didn't ask for any clarifications.

[01:27:59] Speaker 03:
The union was obligated to ask for a clarification.

[01:28:04] Speaker 03:
In order for the union to be on the spot to seek clarification, the employer at least has to make more than a bear to lose a research.

[01:28:11] Speaker 03:
It's just insufficient.

[01:28:12] Speaker 04:
Does the board's rule then just sort of promote more litigation rather than accommodation between the parties?

[01:28:21] Speaker 03:
No.

[01:28:22] Speaker 03:
My opponent's suggestion creates more litigation, as the board noted, because you want to encourage timely making and substantiation of claims and proposing an accommodation before it gets to trial.

[01:28:35] Speaker 03:
What we don't know is if the parties could work it out, the employer could have explained its claim earlier.

[01:28:40] Speaker 03:
They have no reason they couldn't.

[01:28:42] Speaker 03:
And then the parties could have potentially worked it out short of litigation on it.

[01:28:47] Speaker 03:
We'll never know.

[01:28:48] Speaker 06:
And in this case, in fact, as Councilman Amar said, there was dialogue going back and forth this whole time, and yet three separate times, all the employer said was proprietary.

[01:29:01] Speaker 00:
That's right.

[01:29:01] Speaker 06:
Three separate times gave that single adjective response, even though there was, we don't know, we know there was communications.

[01:29:10] Speaker 06:
We know something about the one phone call, but Lucy Amar says that there was stuff going on back and forth between these requests.

[01:29:19] Speaker 03:
That's right.

[01:29:19] Speaker 03:
That's all they ever said was proprietary.

[01:29:22] Speaker 03:
And it's consistent with settled law that such a bare assertion is insufficient to require a response from the king.

[01:29:29] Speaker 03:
And that's not unreasonable.

[01:29:31] Speaker 03:
The employer is in the best position to get the ball rolling.

[01:29:35] Speaker 06:
And precedent supports that.

[01:29:40] Speaker 06:
Any more questions?

[01:29:40] Speaker 06:
Thank you very much.

[01:29:41] Speaker 03:
Thank you, Your Honor.

[01:29:46] Speaker 06:
Ms.

[01:29:47] Speaker 06:
Lemers will give you, oh we went right past your rebuttal, we'll give you two minutes.

[01:30:00] Speaker 05:
And I will intend to keep it brief.

[01:30:03] Speaker 05:
Speaking first of the question of the waiver, I think that my opposing- 23.03 way.

[01:30:09] Speaker 05:
23.03, correct.

[01:30:11] Speaker 05:
The arguments made by a opposing council only serve to illustrate that there was an analysis here that the National Labor Relations Board needed to conduct.

[01:30:22] Speaker 05:
There are arguments about, well, it couldn't possibly be a waiver because there's another provision of the contract, et cetera.

[01:30:28] Speaker 05:
All of that is a legitimate analysis that should have been conducted by the National Labor Relations Board but was not.

[01:30:35] Speaker 06:
Were your briefs to the board explicit about

[01:30:40] Speaker 06:
I believe that they were.

[01:30:43] Speaker 06:
I think we refer to it, or I refer to it.

[01:30:51] Speaker 05:
Sure, so I believe we speak to being able to construe the waiver on its face, which I think is a textual argument.

[01:30:58] Speaker 06:
As covering information requests, remember there's the two ways, covering information requests with the any or all related to language or the second approach, which is.

[01:31:10] Speaker 05:
Yes.

[01:31:10] Speaker 05:
It may not matter.

[01:31:11] Speaker 06:
The ADT.

[01:31:12] Speaker 06:
Take it off the table thing.

[01:31:13] Speaker 05:
Yes, and I think both the textual any and all language is included in both our principal brief

[01:31:21] Speaker 05:
probably also our reply brief, and also the take it off the table, which is the ADT argument, I am certain is referenced.

[01:31:34] Speaker 02:
distinctly before the board or the ALJ.

[01:31:37] Speaker 02:
It's not in the JA here?

[01:31:39] Speaker 02:
The Joint Appendix?

[01:31:41] Speaker ?:
Yes.

[01:31:41] Speaker 05:
I believe it's in the briefs that went to the board.

[01:31:44] Speaker 05:
I also believe you'll see evidence of that in the Joint Appendix here.

[01:31:48] Speaker 05:
I don't think that includes the briefs.

[01:31:50] Speaker 05:
Typically it would not.

[01:31:51] Speaker 05:
It does.

[01:31:52] Speaker 05:
There is testimony and that disaster letter that was provided to the union in March.

[01:31:57] Speaker 05:
They were both

[01:31:58] Speaker 05:
explicitly discussed before the administrative law judge, and you'll see the judge and the board grappling with it, so I know it was addressed in our briefs below.

[01:32:07] Speaker 05:
And I see my time is about to expire, but very briefly on confidentiality and accommodative bargaining.

[01:32:14] Speaker 05:
I think the question here that the court has to grapple with is why would a remedial order of accommodative bargaining exist

[01:32:24] Speaker 05:
if not for the board to impose it so that they could restore the status quo any in a case like this if it were always the case.

[01:32:35] Speaker 05:
that it was either confidential information and therefore didn't need to be provided because it was privileged in some way, there would be no need for an accommodative order.

[01:32:45] Speaker 05:
If the parties had already engaged in accommodative bargaining, there'd be no need for a remedy whereby accommodative bargaining would be imposed.

[01:32:52] Speaker 06:
That may not be true.

[01:32:53] Speaker 06:
It might be thin and it might be at loggerheads because they might really just profoundly disagree about whether it is confidential or not.

[01:33:02] Speaker 06:
And so the unions like

[01:33:04] Speaker 06:
The employer does its job and the union says, no, we think we're entitled to that.

[01:33:09] Speaker 06:
We don't agree that it's privilege.

[01:33:11] Speaker 06:
So when it gets to the board and the board says, sorry, union, but this is, in fact, privilege, that's a perfect situation for them saying.

[01:33:17] Speaker 06:
So now that what you really were fighting about is off the table, they'll have some serious accommodative bargaining.

[01:33:23] Speaker 06:
That's got to be routine.

[01:33:25] Speaker 05:
But certainly it is also routine, as demonstrated by the case law, that in circumstances very similar to this, where there is an, quote unquote, according to the board, untimely assertion, accommodative bargaining is the proper restoration.

[01:33:39] Speaker 05:
Right, but you didn't have it.

[01:33:40] Speaker 06:
You told me there wasn't a single case where, put aside timeless or not of the assertion.

[01:33:45] Speaker 06:
There's not a single case where the board has found, in fact, you didn't prove confidentiality, even at the hearing, where the judge, ALJ, found it and the board agreed.

[01:33:56] Speaker 06:
They didn't prove it at the hearing either on the merits that they've ordered accommodative bargaining.

[01:34:03] Speaker 06:
This would be the first case.

[01:34:06] Speaker 05:
But I think, I do believe that our brief challenge is the concept that the information is not confidential so as to render accommodative bargaining appropriate.

[01:34:16] Speaker 06:
So I think that we do challenge- I didn't see the clear error, a specific argument that they clearly erred this was confidential.

[01:34:25] Speaker 05:
Yeah, I think that's because the clear on that.

[01:34:28] Speaker 06:
It's hard to find clear.

[01:34:29] Speaker 05:
I think that's because the analysis of the judge and the board were so wrapped up in the not just looking at the question of the confidentiality, but the too little too late sort of they separately broke it out.

[01:34:42] Speaker 06:
Text was a sentence that says even if even if this is not enough, that's what they'll just even if it wasn't shown at the hearing.

[01:34:52] Speaker 06:
And the board says, we agree with the ALJ on that.

[01:34:57] Speaker 06:
So it's not wrapped up together.

[01:34:58] Speaker 06:
They talked about them both, but we do that too.

[01:35:01] Speaker 06:
Here's one reason for ruling, and even if, here's another reason for ruling.

[01:35:05] Speaker 02:
You said at 37 in the blue brief that they applied a Julie Strick standard.

[01:35:12] Speaker 02:
Yes, I- In making that finding.

[01:35:14] Speaker 05:
Yes, I agree.

[01:35:17] Speaker 05:
For all the reasons we've discussed today.

[01:35:19] Speaker 05:
It is the contention of the employer that the petition for review should be granted, the cross application for enforcement should be denied, and that the board's decision and order should be vacated or remanded by this court.

[01:35:33] Speaker 05:
And I thank you all for your time today.

[01:35:35] Speaker 05:
Thank you.

[01:35:38] Speaker 05:
Thank you.

[01:35:39] Speaker 05:
The case is submitted.