[00:00:01] Speaker 00:
case number 22-1163 et al.

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Hospital Mennonita de Guayama Inc.

[00:00:06] Speaker 00:
Petitioner versus National Labor Relations Board.

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Mr. Moldoni for the petitioner, Ms.

[00:00:12] Speaker 00:
Beard for the respondent.

[00:00:21] Speaker 05:
Good morning.

[00:00:22] Speaker 03:
Good morning.

[00:00:25] Speaker 05:
Please proceed.

[00:00:25] Speaker 03:
Thank you, Your Honor.

[00:00:27] Speaker 03:
If it please the court, Patrick Muldowney on behalf of the petitioner, Hospital Mennonita.

[00:00:32] Speaker 03:
This case involves the application of the successor bar under the National Labor Relations Act.

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In this case, the board applied the most recent iteration of the successor bar adopted

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in the UGL Unico case, which purported to make what was previously a rebuttable presumption of union majority status irrebuttable during a successorship issue.

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Relying on that case, the board concluded that the petitioner had unlawfully withdrew recognition from the union.

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We recite the factual background in our brief, but just briefly,

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the petitioner acquired a hospital.

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We know the basic facts.

[00:01:19] Speaker 05:
Can I just ask on that?

[00:01:20] Speaker 03:
Sure.

[00:01:21] Speaker 05:
The textual hook for your argument is Section 7 of the Act, which says basically that employees have a right to associate or dissociate with union through elections, right?

[00:01:40] Speaker 05:
Right.

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In ordinary meaning, you wouldn't think of that right as being burdened or infringed or violated if the scheme provided for periodic but not continuous elections.

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No one thinks that the public's right to

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select our president is burdened because we only do it once every four years.

[00:02:13] Speaker 03:
Correct.

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And before I answer your question, discuss this with you.

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I did reserve three minutes for rebuttal.

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But in this situation, this is the very case that looks, that really

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I would argue looks to assert the rebuttable presumption that the rebuttable presumption is correct because when you look at the situation here, the employees had been represented by a union for a number of years before the petitioner acquired the hospital.

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And during that time, at least four years prior to the acquisition of the hospital, the employees had not received the contract.

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They had not received the contract.

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There had been no contract negotiated, including for two particular units of the five units that were there that had been initially recognized in 2012.

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They never got an agreement.

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So this is.

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You mean an agreement was never negotiated by their representative.

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You're stating in a very self-serving way, but that's not what goes on.

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Parties sometimes break down in negotiations, but the employees are still represented.

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And benefits are still paid, and they can't be implemented unilaterally when the union is there.

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The negotiation process is still there.

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And in effect, the fact that the parties are still struggling over executing a particular contract doesn't mean the employees are not represented.

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They are.

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But what happened with respect to the petition came into this situation and eventually received a petition signed by the majority of each of the five units of employees saying we would we do not want to be represented by the union.

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Because they have been in the situation where they had had union had been in effect with it.

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What would be boards.

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The whole idea of the successor ship or or the session of presumption is the idea that.

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the successor comes into the relationship and is then assuming the predecessor's relationship with the union.

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In this situation, there was no relationship.

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There was a relationship, but it wasn't as you thought it might exist because it wasn't an executed agreement.

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There was a relationship.

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That's why the rule is what it is.

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The presumption is there is a relationship

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Their presumption is you have an obligation to bargain for a reasonable period of time.

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It's not a long period of reasonable period of time.

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And the only difference old and new is whether it's rebuttable or not.

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And the board explained it in the prior cases, why they take this approach.

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It's a perfectly reasonable approach.

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Certainly not one we ought to second guess.

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They've explained it.

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It's for a short reasonable period of time.

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They said in this situation, the union, the employer, your client failed to follow the rule.

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Your honor, what we take an exception with the board on is that the irrebuttable nature of it,

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It basically makes these employees who may not want to continue to be represented.

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Well, in six months, then it'll play out that way.

[00:05:33] Speaker 04:
It could be six months?

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I mean, if you read the record, your client was buying all of that time anyway by being resistant to any overtures for bargaining and bargaining obligations.

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Six months is not a long period of time.

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There's an obligation to bargain for six months up to a year under the existing rule.

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It's not rebuttable, that's true, but the question is whether there is a rationale supporting the rule.

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It seems to me there is, and the board has explained it.

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Well, we would submit that the rationale that the board submitted in the UGL case was basically that, gee, there had been a large increase in mergers and acquisitions.

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There's no tie of that to unionized employment places or any kind of indication that in the years since the rebuttable presumption had been resurrected after the back and forth.

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that there had been any increase in either DCERT petitions or ULP cases involving withdrawal of recognition.

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So while there's a general statement by the board, gee, this has happened, there's no connection of that to how it serves the purposes of the act.

[00:06:51] Speaker 04:
I don't think that's the main rationale.

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The main rationale of the board is I remember what they said both in this case and in the original case setting the groundwork for this is that

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You don't disturb employees' settled rights merely because a successor comes in without requiring the successor to at least bargain for a reasonable period of time, knowing that a union is there, reasonable period of time, and then if it doesn't work out, that's a different matter.

[00:07:17] Speaker 04:
That's the rationale.

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I mean, there are other things that are said justifying it, but that's the main point.

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And as my colleague mentioned, that is consistent with protecting the rights of employees.

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And it's hardly burdensome on employers because it's not, you must bargain forever.

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It's for a reasonable period of time because there's already a union here.

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And you bought the place knowing there was a union here.

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And based on the record, they were ready to negotiate with them.

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Well, then that's a different question.

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And the board's answer to you on that one, I suspect, is that substantial evidence supports their findings, that they were not ready to bargain the way they were obliged to.

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I'm sorry.

[00:07:55] Speaker 03:
Your Honor, I didn't get that.

[00:07:56] Speaker 04:
I'm sorry.

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The board is going to say the substantial evidence supports their finding, that the employer was not ready to bargain as the law required.

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But we would argue.

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That's a substantial evidence standard or review.

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And a considerable portion of that claim in terms of the failure to bargain comes out of post withdrawal actions by the petitioner.

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And again, based upon the information that petitioner had received, that was objective from a majority of each of the units as they withdrew recognition because

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under Section 7, Section 7 provides for the board, provides under the Act that employees have the right to engage in bargaining or the right to refrain from doing in terms of collective bargaining.

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And what the irreparable presumption, with all due respect to the board, what that creates is it translates the rights of employees under Section 7 into a union security law.

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And that's not what the act is supposed to be.

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I just don't see how that follows.

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You've got someone who comes in, buys an operation with a union, knowing that the rule is if you're a successor where there is a union, under established law, you have to bargain in good faith for a reasonable period of time, six months to a year.

[00:09:26] Speaker 04:
Six months is an insignificant period of time.

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And that's what the board was essentially saying.

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It protects the rights because employees are now in flux because it's a new employer.

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And so the lease that they're entitled to is good faith bargaining or a reasonable period of time.

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If it doesn't work out, it doesn't work out.

[00:09:46] Speaker 03:
But Your Honor, given the factual situation here, that you have at best a dysfunctional union relationship with their own members,

[00:10:00] Speaker 03:
The issue here in terms of whether they have to automatically recognize the union for six months to a year in the face of objective evidence, which the ALJ wouldn't look at because of the irreparable presumption.

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When you've got that issue there, the board should have to at least consider that issue before finding that there was an unfair labor practice by not negotiating with the union after they had received the objective evidence of failure of

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desire not to be represented by that.

[00:10:45] Speaker 05:
Can you give us any sense outside the successorship context?

[00:10:52] Speaker 05:
Just in the ordinary course, how often

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is a recognized union challenged through one of these various mechanisms?

[00:11:05] Speaker 03:
I mean, in terms of generally, in terms of the majority status?

[00:11:08] Speaker 05:
Yeah.

[00:11:09] Speaker 03:
I mean, it is not a common occurrence.

[00:11:12] Speaker 03:
It is not?

[00:11:13] Speaker 03:
It's not a common occurrence.

[00:11:15] Speaker 03:
I mean, all I can give you is sort of my anecdotal experience.

[00:11:19] Speaker 05:
Yeah, just sort of all park, right?

[00:11:21] Speaker 05:
I mean, it doesn't typically happen every few months.

[00:11:24] Speaker 03:
Right.

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It's not a standard part of my practice, nor has it ever been.

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And I think most labor attorneys on the national side would agree with that.

[00:11:34] Speaker 05:
So if that's true, then there's a lot of force to Judge Edwards' point that six months to a year

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is not a huge infringement on the employees' Section 7 rights?

[00:11:53] Speaker 03:
Well, I would say the opposite.

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I would say that because it doesn't happen very often, it really shows that the employees themselves have an issue in terms of their representation by the union, and their Section 7 rights should be powered.

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And by requiring them to continue to be in the successor position,

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After they've been represented by this union already over the course of four or five or more years, it's unfair to the employee.

[00:12:26] Speaker 04:
Did they file a DCERT petition before the successor came in?

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I don't have that information.

[00:12:33] Speaker 04:
Isn't that relevant?

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Obviously, the employees were not so distressed that before the successor came in, they were filing a DCERT to get out of the existing relationship.

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They weren't that dysfunctional apparently.

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So I mean, they're in the same situation they were in before the successor came in.

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They were in a bargaining relationship.

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If they wanted to get out of it, they could at the appropriate time file a decertification petition.

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They hadn't done that.

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So all that happened was a new owner came in and the new owner had the same obligation as the old owner to bargain in good faith.

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And it's limited because it is a successor and the board has said, no, you don't have to bargain in good faith forever.

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We're not going to assume there's a majority support for you forever.

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You have to do it for a reasonable period of time.

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And if it doesn't work, then you can fly the coop.

[00:13:25] Speaker 03:
But Your Honor, again, what they may have done prior to the sale, the fact of the matter is when the petitioner came in, they ultimately were confronted with this evidence that they were given.

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And given that evidence,

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we would argue that the Section 7 rights should be paramount.

[00:13:42] Speaker 04:
Well, that's because you want a different rule.

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You want to be able to say there's a rebuttable presumption, which really makes the situation dysfunctional if you understand what goes on when employees, the union, pro-union, anti-union are now fighting about whether or not anyone represents them.

[00:14:02] Speaker 04:
And that may go on for a lot longer than the six months to a year before you ever get that resolved.

[00:14:08] Speaker 04:
So I mean, what the board is saying, look, all things considered, yes, it's employees' rights that have to be protected.

[00:14:14] Speaker 04:
We're not disturbing those rights, because they already had a union, and they hadn't done anything to get rid of the union.

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The only thing that's happened is there's a new employer.

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And we're saying to new employers, you're on notice.

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You've got to bargain for six months to a year, reasonably.

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And then if it doesn't work out, then it's a different situation.

[00:14:33] Speaker 01:
And I also think we need to look at the timing

[00:14:36] Speaker 01:
of these petitions because if they were happening at the same time the new employer was handing out cash payments and other things, I'm not so sure that those petitions to get rid of the union are a little tainted by that.

[00:15:00] Speaker 03:
We don't the issue about it.

[00:15:01] Speaker 03:
I take it your honor.

[00:15:03] Speaker 03:
You're talking about the hurricane bonus, the $150.

[00:15:06] Speaker 03:
Well, all the goodies that were suddenly coming.

[00:15:10] Speaker 04:
Because the employer was doing, I mean, years and years and years ago, I used to do this.

[00:15:15] Speaker 04:
I mean, I know the situation.

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And employers are doing everything they can now to try and win this battle.

[00:15:22] Speaker 04:
That is not to have a union when this is all over.

[00:15:25] Speaker 04:
And so it's a little here and a little there.

[00:15:27] Speaker 04:
And what the board rule says is, no, we're going to have a little repose during a period of time when you have to bargain in good faith.

[00:15:36] Speaker 04:
And if it doesn't work, then that's another.

[00:15:39] Speaker 03:
But what's interesting, Your Honor, though, is that the board previously had the rebuttable present.

[00:15:43] Speaker 03:
I understand.

[00:15:44] Speaker 03:
And they went back and forth as.

[00:15:45] Speaker 04:
No, as well as I do.

[00:15:47] Speaker 04:
You may not be as old as I am, but you're old enough to know.

[00:15:51] Speaker 04:
The board changes substitute policy determinations all the time.

[00:15:57] Speaker 04:
I understand, Your Honor.

[00:15:57] Speaker 04:
In my lifetime, they've probably done it, what, 20,000 times.

[00:16:02] Speaker 04:
And we have said it's their job.

[00:16:05] Speaker 04:
They can take into account circumstances as they see them.

[00:16:08] Speaker 03:
We'll take in your honor, but I would suggest that you're as old as I am.

[00:16:15] Speaker 03:
I may be after this hearing.

[00:16:16] Speaker 03:
I don't know.

[00:16:19] Speaker 03:
Your honor, I would just take one issue with respect to the certificate, the rebuttable versus irrebuttable presumption.

[00:16:29] Speaker 03:
And when the board went back on the irrebuttable presumption,

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The only rationale was this mergers and acquisitions argument, which did not connect in any way to labor.

[00:16:44] Speaker 03:
They said, oh, there's a lot of mergers and acquisitions.

[00:16:47] Speaker 03:
And looking at the Lilly transportation case that the First Circuit had dealt with, Justice Souter said he kind of tried to fill in what he called the laconic

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exercise of the board in terms of providing a rationale for why they were changing it.

[00:17:09] Speaker 03:
But his was basically a workload.

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He said, well, there's going to be a lot of cases coming in.

[00:17:14] Speaker 05:
But what's wrong with the Justice Souter's core reasoning, right?

[00:17:20] Speaker 05:
Which is you can't extract from the words of Section 7

[00:17:28] Speaker 05:
bright line rule about when elections have to happen or not.

[00:17:34] Speaker 05:
10 years, clearly too much.

[00:17:40] Speaker 05:
Two weeks, clearly okay.

[00:17:42] Speaker 05:
And so the board is exercising discretion in balancing the degree of

[00:17:50] Speaker 05:
intrusion under the section seven interest with a lot of other competing interests about stability and such.

[00:17:58] Speaker 05:
And that question is just, we just review their balancing as a matter under the arbitrary and capricious standard.

[00:18:10] Speaker 05:
And that's all we do.

[00:18:11] Speaker 03:
Well, I would argue, Your Honor, that there's a,

[00:18:14] Speaker 03:
a lot of what you had mentioned, sort of procedural in nature in terms of timing of elections and things like that.

[00:18:19] Speaker 03:
This is substantive.

[00:18:20] Speaker 03:
And we would argue because it's dealing with our view, depriving the employees of their section seven rights because they have expressed their desire not to be in the union.

[00:18:32] Speaker 05:
I don't know if it's procedural or substantive.

[00:18:34] Speaker 05:
The point is there's no judicially discernible

[00:18:42] Speaker 05:
timeline, then elections have to happen.

[00:18:48] Speaker 05:
We can't stare at the text and say, oh, it has to be every four years, or every two years, or every one year.

[00:18:54] Speaker 03:
You're in terms of talking about changing majority status.

[00:18:58] Speaker 03:
Right, correct.

[00:18:59] Speaker 03:
But again, whether it's every two years, four years, et cetera, what we had in this case is we received those petitions at the time we received them.

[00:19:09] Speaker 03:
So whether it's whenever the

[00:19:12] Speaker 03:
time frame for taking elect doing an election.

[00:19:15] Speaker 03:
We are we were confronted with.

[00:19:18] Speaker 03:
Expressions by the by the employees that they no longer wish to be represented by that union and wanted to deal with Tishner direct me.

[00:19:26] Speaker 05:
You want to?

[00:19:28] Speaker 05:
You keep.

[00:19:29] Speaker 05:
Trying to talk about the facts of your case.

[00:19:34] Speaker 05:
Not sure they're helpful to you, but I'm just asking you about.

[00:19:36] Speaker 05:
The bright line rule.

[00:19:39] Speaker 05:
I mean,

[00:19:40] Speaker 05:
Well, generally, agencies can just draw lines and say, like, you know, we'll mandate a reconsideration every two years just to make sure, or we'll prohibit a reconsideration within a year of an election, because the union needs some time to do its thing.

[00:19:59] Speaker 03:
OK.

[00:20:00] Speaker 03:
You're talking about the certification bar.

[00:20:02] Speaker 03:
And in that one, we're not, you know, there's a, that's a new relationship where the union is just coming in.

[00:20:09] Speaker 03:
This is a relationship that's been existing for some time.

[00:20:12] Speaker 03:
So the concerns and the policy issues behind the certification bar don't apply here in the successor bar.

[00:20:22] Speaker 03:
And again, we're not arguing there shouldn't be a rule.

[00:20:25] Speaker 03:
What we're arguing is that there needs to be

[00:20:29] Speaker 03:
possibility that that rule should not be as bright line in these kinds of circumstances, because you have you have people coming into different in working environment in different in terms of the relationship between the union.

[00:20:43] Speaker 05:
They've established a rule.

[00:20:46] Speaker 05:
You're advocating.

[00:20:47] Speaker 05:
What rule are you advocating?

[00:20:49] Speaker 03:
Going back to the going back to the rebuttable presumption.

[00:20:53] Speaker 05:
right?

[00:20:54] Speaker 05:
So they can never think.

[00:20:58] Speaker 05:
Can't establish a bar for a month.

[00:21:03] Speaker 03:
That if there's if there is a if there's evidence, sufficient evidence that would justify removing the bar, they should be able to consider.

[00:21:15] Speaker 05:
Judge Henderson.

[00:21:15] Speaker 01:
Any other questions?

[00:21:17] Speaker 01:
I don't have a question, but I would like the record to reflect that Judge Edwards is not that old.

[00:21:23] Speaker 01:
I am right behind him.

[00:21:27] Speaker 03:
Thank you.

[00:21:27] Speaker 03:
Thank you, Judge.

[00:21:28] Speaker 03:
And I'm right behind both of you.

[00:21:30] Speaker 03:
You're ours.

[00:21:31] Speaker 03:
Thank you.

[00:21:36] Speaker 05:
Thank you.

[00:21:37] Speaker 05:
We'll hear from the board.

[00:21:40] Speaker 05:
Ms.

[00:21:40] Speaker 05:
Beard.

[00:21:42] Speaker 02:
Yes, good morning.

[00:21:42] Speaker 02:
Heather Beard from the Labor Board.

[00:21:45] Speaker 02:
As the board said, and as your honors were discussing, the facts here in this case,

[00:21:53] Speaker 02:
provide support and make it crystal clear why the protection of a successor bar is reasonable for the board to have as a rule and appropriately balances the rights of employees under section seven and the interest in stability and collective bargaining relationships, which itself is a precept for employee rights.

[00:22:16] Speaker 02:
And I believe there are a few points I'd like to address first that my opponent made, if I may.

[00:22:21] Speaker 02:
The first one,

[00:22:23] Speaker 02:
is in regards to the fact that they received this petition from the employees at that many times.

[00:22:30] Speaker 02:
The law has been clear since 2011, which is any such petition received from employees during this reasonable period of time, which is at least six months, is something that cannot be considered by the employer.

[00:22:44] Speaker 02:
So it isn't like we have a case here where the employer didn't know what the law was.

[00:22:48] Speaker 02:
That's number one.

[00:22:49] Speaker 02:
Number two, this situation where my friend on the other side is saying that the hospital came in and knows now that the employees had a dysfunctional relationship because they didn't have a bargaining agreement, as Judge Edwards said, is simply, we don't know that from the record.

[00:23:05] Speaker 02:
It is absolutely not necessarily true.

[00:23:07] Speaker 02:
What we do know is that the employees had voted for and had a union

[00:23:13] Speaker 02:
all five units and collective bargaining agreements in three that had expired, whose terms and conditions of employment were the ones that govern.

[00:23:20] Speaker 02:
We know.

[00:23:21] Speaker 05:
Let's just take a step back from the facts and just talk about the successor bar.

[00:23:29] Speaker 05:
So what is it about the change in ownership that

[00:23:37] Speaker 05:
moves the needle one way or the other on the question whether the employees support their union.

[00:23:43] Speaker 05:
It seems totally different from the most conventional bar, which is triggered by a certification.

[00:23:52] Speaker 02:
Or a contract bar.

[00:23:54] Speaker 02:
That's another one.

[00:23:55] Speaker 05:
Well, actually, a question about that.

[00:23:56] Speaker 05:
The contract bar, does that apply

[00:24:00] Speaker 05:
in cases where the employees don't ratify the contract or only in cases when they do?

[00:24:09] Speaker 02:
Well, if the employees don't ratify the contract, then my understanding is the contract doesn't apply because it would have to be a, the employees have to cert, have to ratify a contract that the union is signing, I think.

[00:24:24] Speaker 05:
I couldn't find any.

[00:24:24] Speaker 05:
So if that's how it works, then the contract bar,

[00:24:28] Speaker 05:
and the certification bar are triggered by events that affirmatively indicate support by the employees of the union.

[00:24:42] Speaker 02:
When the union is certified, the law, as it is the board law, is that the union is the collective bargaining exclusive of the employees.

[00:24:49] Speaker 05:
For one year, conclusive makes perfect sense because the board has just made that determination.

[00:24:56] Speaker 02:
And that's in the statute, yes.

[00:24:59] Speaker 05:
When the owners change, what does that have to do with whether the employees support the union or not?

[00:25:06] Speaker 02:
A lot to do with it because they're the bargaining partner on the other side of the union in terms and conditions of employment.

[00:25:14] Speaker 02:
This case was one of them where the employer who's new comes in and decides that, as they can, they don't have to accept any collective bargaining agreement that's there, but they have to bargain.

[00:25:23] Speaker 02:
And in this case, what they also did is they changed the terms and conditions of employment that all the employees were used to working under when they had their union and under the terms of the three bargaining units who had the collective bargaining agreements that had expired but whose terms would have been the same.

[00:25:39] Speaker 02:
So when you have a new bargaining partner coming in, a new bargaining partner, especially here, that changed the terms and conditions of- They can unilaterally change.

[00:25:48] Speaker 05:
Yes, under Berns- Berns says that.

[00:25:50] Speaker 05:
If there were no successorship,

[00:25:52] Speaker 05:
Status quo ante, the employer could not unilaterally change.

[00:25:59] Speaker 02:
Correct.

[00:25:59] Speaker 02:
That's black letter board law.

[00:26:00] Speaker 02:
No unilateral changes when they're in terms and conditions of employment without discussing with the union.

[00:26:06] Speaker 02:
Okay.

[00:26:06] Speaker 02:
Yes.

[00:26:07] Speaker 02:
So in this particular case, that is why the board when considering when a new employer comes in, and this was goes back to fall river dying.

[00:26:18] Speaker 02:
When a new employer comes in, that's one of the most destabilizing situations you can have because this new employer is

[00:26:25] Speaker 02:
new and so here and in other cases when a new employer comes in what the board was doing is saying what's the best way and the board is the expert um agency doing this that we can balance the the rights of of the employees and in order to keep i mean it's throughout supreme court and other case law that in order for there to be stability um during a collective bargaining relationship there has to be some amount of time that it's set to um

[00:26:54] Speaker 02:
to continue as you all were talking about the presidential election, various elections.

[00:26:58] Speaker 02:
It's not new to have some limited period of time where there isn't an election.

[00:27:02] Speaker 02:
And the key here is the board did not find for 10 years, you can't decertify or file a petition for certification simply six months from the six months seems to me clearly reasonable for reasons Judge Edwards suggests.

[00:27:20] Speaker 05:
I agree.

[00:27:20] Speaker 05:
But but

[00:27:22] Speaker 05:
I'm a little concerned with, and I think the dissent made this point, the interaction between the successor bar and the contract bar.

[00:27:34] Speaker 05:
So you imagine the contract bar gives the union three years of protection before successorship.

[00:27:44] Speaker 05:
Then the successor bar attaches, gives them another year within which they execute another contract, which would have given them three more years.

[00:27:55] Speaker 05:
That's seven.

[00:27:56] Speaker 05:
The board said, oh, seven sounds long.

[00:27:58] Speaker 05:
We'll make it six.

[00:28:00] Speaker 05:
Six or seven is really long.

[00:28:02] Speaker 05:
That's a huge burden on employee rights to choose their union.

[00:28:08] Speaker 02:
I would respectfully disagree with that.

[00:28:09] Speaker 02:
I would say that when the board did go, it wasn't

[00:28:14] Speaker 02:
insignificant when the board considered exactly as you said, how there might be a possibility of a length of bars like that.

[00:28:23] Speaker 02:
However, if there was a contract bar following the employer bargaining with the union and coming up with a contract.

[00:28:30] Speaker 02:
And I think that the way that they did decide that even though that is speculative, that they were shortening the

[00:28:36] Speaker 02:
amount of time from three years to two years is pretty significant in the board looking at the facts and some of the counter arguments and coming up with what was reasonable and certainly has not been, I would point out, my opponent has not challenged that.

[00:28:50] Speaker 05:
I can't remember.

[00:28:51] Speaker 05:
Did they reserve the possibility of an as-applied challenge under Section 7 in a scenario like that?

[00:29:00] Speaker 05:
Because you're right, the 312 won't always arise, but it might.

[00:29:07] Speaker 05:
Is that an open question or no?

[00:29:10] Speaker 02:
I guess I'm sorry, Your Honor.

[00:29:11] Speaker 02:
I don't understand your question.

[00:29:13] Speaker 05:
Can you repeat it?

[00:29:14] Speaker 05:
The board approved a general rule of six months or a year, which could latch on to the three years in pre-succession, two years post-succession.

[00:29:25] Speaker 05:
If you have that perfect storm of restricting employee rights, what happens in that specific case?

[00:29:35] Speaker 02:
So first of all, I respectfully disagree that that's restricting employee rights.

[00:29:39] Speaker 02:
I got it.

[00:29:40] Speaker 02:
OK.

[00:29:41] Speaker 02:
But beyond that, I would say, no, the board is saying should that happen, that would be OK under its successor bar, that there would be the three.

[00:29:47] Speaker 05:
Right.

[00:29:47] Speaker 05:
So that sounds so you have a rule that in some applications seems pretty modest in others just for the sake of argument, just assume is pretty

[00:30:01] Speaker 05:
county.

[00:30:02] Speaker 02:
So well it could be it could be I mean the thing that we're also now putting in that calculus of speculation respectfully is the fact that if the employer comes in and all like it didn't do here and bargains which is its obligation that

[00:30:17] Speaker 02:
six months goes by pretty quickly if it bargains.

[00:30:21] Speaker 02:
In this particular instance, we don't have that as applied challenge that you're talking about.

[00:30:24] Speaker 02:
Not only was that not raised by my opponent, it's something that in this instance, we're sort of in the very, very key and easy case where you have an employer that comes in and as substantial evidence supports on this record does not fulfill its bargaining obligation with the union.

[00:30:44] Speaker 02:
You then have, you know, you would have to see that this was a case where, as the board said, and you know, why, you know, the board gave one of its extraordinary remedies here, which is it said, look, this bargaining relationship did not have any chance to succeed under this.

[00:31:01] Speaker 02:
So here, what you had is the employee's rights and the equation really.

[00:31:05] Speaker 05:
The facts here are pretty good for you, but I'm worried about how the rule might apply.

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

[00:31:10] Speaker 04:
Let me make sure we're on the same page.

[00:31:13] Speaker 04:
using this situation.

[00:31:15] Speaker 04:
Union comes in.

[00:31:17] Speaker 04:
They have an obligation to bargain.

[00:31:18] Speaker 04:
I mean, the employer has an obligation to bargain six months or so.

[00:31:22] Speaker 04:
And they bargain in good faith.

[00:31:24] Speaker 04:
They reach no agreement.

[00:31:26] Speaker 04:
What are the rights of the employees?

[00:31:28] Speaker 02:
And they reach no agreement?

[00:31:29] Speaker 02:
No agreement.

[00:31:30] Speaker 02:
Right.

[00:31:30] Speaker 02:
OK.

[00:31:31] Speaker 02:
So under the successor bar, they've bargained.

[00:31:35] Speaker 02:
Six months has gone by.

[00:31:36] Speaker 02:
The general counsel then, in order to claim there's any sort of unfair labor practice with regard to

[00:31:43] Speaker 04:
just answer my question what are the employees rights in that situation no agreement is reached no it was good faith bargaining and there's it and there's an impasse then the employees ostensibly yes the employees could file a decertification I mean we're walking around one obvious answer to the express concern by council on the other side the employees are not locked in the period is minimal

[00:32:06] Speaker 04:
They don't reach an agreement, and they can't reach an agreement if the employees don't agree.

[00:32:10] Speaker 04:
So if the employees hate this union, they're not going to buy anything the union does.

[00:32:15] Speaker 04:
And at the end of the six-month period, say, no, we're not ratifying anything you put on the table, and we're going to file a dessert petition, right?

[00:32:23] Speaker 02:
Yes.

[00:32:23] Speaker 04:
OK.

[00:32:24] Speaker 04:
So I mean, that's the answer to the other side.

[00:32:28] Speaker 04:
Just be honest.

[00:32:29] Speaker 04:
Do what the law requires, because it may be protecting employees' interests.

[00:32:33] Speaker 04:
And if it doesn't work out,

[00:32:34] Speaker 04:
the employee's interest will now come to the fore because they're gonna say, we're gonna get out of this, get out from under this union.

[00:32:41] Speaker 02:
Right, I mean, that's exactly right.

[00:32:43] Speaker 04:
There's no contract bar or any other bar that prevents employees from walking away after six months.

[00:32:51] Speaker 02:
As long as that was a reasonable period, right.

[00:32:53] Speaker 02:
As long as that was a reasonable period of time, absolutely.

[00:32:57] Speaker 02:
So the board's balancing here that it did is incredibly common for what the board does and why it is considered the expert on labor law.

[00:33:09] Speaker 02:
I do want to speak to the mergers and acquisitions point that my opponent raised in terms of like, that the only reason this is happening.

[00:33:16] Speaker 02:
I would agree in back reading UGL Unico, that was one

[00:33:21] Speaker 02:
consideration where the majority made the point, which I think is an excellent one, the fact that there are mergers and acquisitions that are taking place at a faster and faster pace simply demonstrates it's really important to get this right.

[00:33:33] Speaker 02:
It's really important.

[00:33:33] Speaker 02:
Back in UGL Unico, they were changing what the law was and explaining why they were doing it and why they thought rebuttable presumption wasn't adequate.

[00:33:40] Speaker 02:
And now we've had that law.

[00:33:42] Speaker 02:
We're not up here justifying the board changing a rule recently.

[00:33:46] Speaker 02:
We're up here talking about a rule that the board has had in place after it had made a policy decision to change it back.

[00:33:53] Speaker 04:
The board had already justified in the prior case.

[00:33:57] Speaker 04:
And in the current case, it was simply saying our prior justification is the same one we had off a year.

[00:34:03] Speaker 04:
It wasn't just mergers and acquisitions are the reason we're not going to flip again.

[00:34:09] Speaker 04:
the mergers and acquisition had come up in the prior case.

[00:34:12] Speaker 04:
That's correct.

[00:34:13] Speaker 04:
And so in this focused on was stability.

[00:34:15] Speaker 04:
Again, I said, look, this is about stability for the employees.

[00:34:20] Speaker 04:
It's a destabilizing period.

[00:34:22] Speaker 04:
It's a very short period of time to make sure they have a chance to bargain in a potentially destabilizing period.

[00:34:28] Speaker 04:
And if it doesn't work out, it doesn't work out.

[00:34:31] Speaker 02:
Absolutely.

[00:34:31] Speaker 02:
I agree, Judge Edwards.

[00:34:34] Speaker 02:
And as Judge Henderson was saying as well, I mean, we can see how this could sort of be a destabilizing period where we're not sure what's going to happen or how the employees really feel when the employer came in and the new employer did make a bunch of unilateral changes that could be considered favorable to the employees.

[00:34:50] Speaker 02:
So this sort of is a poster child for a reasonable application of the successor bar and further

[00:35:01] Speaker 02:
further buttresses the reasoning in UGL Unico that the board did in terms of why this is the policy choice that the board thinks best fulfills the rights of all the parties involved.

[00:35:10] Speaker 05:
Can I ask you a question about Burns?

[00:35:13] Speaker 05:
Sure.

[00:35:14] Speaker 05:
So the second holding of Burns, which is that the successor is not bound to accept the agreement of the predecessor, the court says

[00:35:30] Speaker 05:
the alternative position of compelled acceptance would cause, and then it has this reductio.

[00:35:39] Speaker 05:
And part of the reductio is the court says among these problems, the successor would be bound to observe the contract despite good faith doubts about the union's majority during the time the contract bar.

[00:35:55] Speaker 05:
So it seems like,

[00:35:58] Speaker 05:
You know, what Burns views as a reductio is what the board now views as great policy.

[00:36:06] Speaker 02:
Well, I would say it's a very different thing to talk about binding a new employer to a contract that it has not signed versus saying to a new employer coming in who knows it's buying a company that has a union there, you're going to have to at least talk to these people.

[00:36:20] Speaker 02:
You're going to have to bargain.

[00:36:21] Speaker 05:
I take that point, except the court seemed to link the two.

[00:36:25] Speaker 02:
In Burns, though, I think they were talking about having the employer bound to the contract.

[00:36:30] Speaker 02:
And nothing in Burns says that a period of time with a conclusive presumption, like the one the board has adopted, is in any way unlawful.

[00:36:40] Speaker 02:
And in fact, I think Burns does focus on the problem with making an employer adopt the contract, which this successor bar rule doesn't do, doesn't get involved in the reductio at all, I would say.

[00:36:51] Speaker 04:
No, it doesn't.

[00:36:52] Speaker 04:
It's not happening.

[00:36:53] Speaker 02:
Correct.

[00:36:53] Speaker 04:
That's not the situation.

[00:36:55] Speaker 02:
Nor is it something that even if it wasn't this factual situation broadly generally for Judge Katz's question for policy.

[00:37:02] Speaker 02:
No, there's nothing about, as former Associate Justice Souter said in Lilly, there's nothing about burns or fall where we're dying for that matter in any way that conflicts with what the board's doing.

[00:37:16] Speaker 02:
I see my time has expired.

[00:37:18] Speaker 05:
Judge Henderson, anything else?

[00:37:20] Speaker 05:
No questions.

[00:37:21] Speaker 05:
Okay, thank you very much.

[00:37:22] Speaker 05:
Thank you.

[00:37:30] Speaker 05:
Give you two minutes.

[00:37:32] Speaker 03:
Thank you, Your Honor.

[00:37:34] Speaker 03:
Just a couple of points to address with respect to my colleague here.

[00:37:41] Speaker 03:
First of all, I just want to make sure it's clear that I thought there was some confusion in the prior colloquy.

[00:37:50] Speaker 03:
Obviously, a successor employer's responsibility is to bargain with the union.

[00:37:57] Speaker 03:
It's not to come to, it's not to agree to the contract and just make sure that's clear that- No confusion.

[00:38:03] Speaker 03:
We not.

[00:38:03] Speaker 03:
No confusion.

[00:38:05] Speaker 03:
No confusion whatsoever.

[00:38:06] Speaker 03:
But I would indicate though, Your Honor, that in those cases- Target good faith.

[00:38:11] Speaker 04:
What's that?

[00:38:12] Speaker 04:
Bargain in good faith.

[00:38:14] Speaker 04:
That's the obligation.

[00:38:15] Speaker 03:
We agree on that too, Your Honor.

[00:38:17] Speaker 03:
We agree on bargaining in good faith.

[00:38:19] Speaker 03:
But, Your Honor, we would argue that when you look at Falls River in particular, Falls River, while that was the, they referenced the existing NLRB test at that time, which was the rebuttable presumption when they talked about, when they were dealing with successorship issues.

[00:38:36] Speaker 03:
And they did not criticize it.

[00:38:39] Speaker 03:
Now, again, it wasn't necessarily right before them, but one would expect that there would have been at least something, if they had a concern with it, that they would have raised about that issue.

[00:38:48] Speaker 03:
Also, with respect to, in the Burns case, Justice White did make a comment with respect to the successorship issues in front of him, that these cases needed to be decided on a case-by-case basis.

[00:39:02] Speaker 03:
we would argue that this is a similar situation when there's evidence to suggest that the bar should not be applied, the board should have to consider it, that that's part of their responsibility as an agency that's adjudicating the rights of employees to adjudicate issues that come up that may be an exception to the general rule.

[00:39:27] Speaker 03:
And again, that was sort of where the board was before the most recent change in the law.

[00:39:39] Speaker 03:
And then also, I would just indicate, again, the timeline here is

[00:39:45] Speaker 03:
The petition required the hospital in September.

[00:39:48] Speaker 03:
The changes, the withdrawals of recognition were in February.

[00:39:55] Speaker 03:
So we're talking, we're talking pretty close to six months as it is.

[00:39:59] Speaker 03:
And so to the extent that they want, that the board wants to create a bright line rule there, the bright line rule, I think, sort of, the bright line rule, I think, betrays the idea that there are facts that, exceptions that would prove

[00:40:13] Speaker 03:
that there should be consideration of an exception to the rule.

[00:40:20] Speaker 03:
And then lastly, I would argue again to my colleague's point that there is no connection, the board never connected the mergers and acquisitions to any kind of stability issue with respect to labor relations.

[00:40:38] Speaker 03:
They just indicated that there's been a lot of a lot of mergers and acquisitions, but there's no connection to labor.

[00:40:46] Speaker 05:
Anderson, any questions?

[00:40:49] Speaker 05:
No.

[00:40:50] Speaker 05:
OK, thank you.

[00:40:50] Speaker 05:
Thank you.

[00:40:51] Speaker 05:
Submitted.