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Case number 22-1287 et al.

[00:00:04] Speaker 02:
J.G.

[00:00:04] Speaker 02:
Kern Enterprises, Inc.

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Petitioner versus National Labor Relations Board.

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Mr. Baskin for the petitioner, Mr. Soder for the respondent.

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We're just gonna hold for a moment for Judge Edward Files.

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Didn't seem to have made it to the bench.

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Self-help is often the way to get things done.

[00:00:33] Speaker 06:
Thank you.

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Good morning, Mr. Baskin.

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You may proceed when you're ready.

[00:00:43] Speaker 02:
Good morning.

[00:00:44] Speaker 02:
And I'm Maurice Baskin on behalf of J.G.

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Kern Enterprises against the National Relations Board.

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I've asked for two minutes for rebuttal.

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The board in this case has refused to honor the wishes of the overwhelming majority of current employees who signed a petition four years ago, overwhelming majority saying they don't want to be represented by the union.

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They delivered that petition to the employer 54 days after the certification here expired.

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There had been an election.

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It was certified and there's something called the certification year.

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I'm sure you all read about it.

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And it's makes an irreparable presumption, but that year had expired for 54 days.

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Well, these occurred within the year.

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The ULPs occurred within the year.

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Correct.

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And the board relied on those ULPs.

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Which they have done a lot over the years.

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That's the rule.

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They can extend the certification year if the ULP recusal the bargain or is within the certification year.

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Yes.

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And they all lose.

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Yes.

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And according to the TANCO decision, the master slack factors are supposed to be used to determine whether they are serious enough.

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Never over, I'm sorry, the board has never overruled the precedent that I just mentioned.

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That is still good law.

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There's nothing in board law that overrules the certification year rule, nothing.

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Correct.

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Well, it depends on which rule you're talking about.

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I'm talking about the rule that was applied against you.

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If you commit violations, there is the power to extend the certification year.

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But if you take a look at the Champion Home Building case, as well as the Garden Ridge case cited and relied on in Teneco, they indicate that you don't automatically extend it.

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That's really where we are perhaps

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have a clarification.

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The board had prosecuted your client based on the other rule.

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They had two theories that they could have applied.

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There's nothing that prohibited them from using the theory that they used, which was that there was a ULP that occurred during the certification year, that it can extend the certification year, old news.

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That law has never been overruled by the board, ever.

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It is still good law.

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depends on which precedent you're referring to.

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So I think you're not disputing that an extension of a certification year is an appropriate remedy in a case, for example, where there's a period of time when an employer refuses to bargain.

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I mean, just putting aside the facts of this case, and I know you contest

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whether substantial evidence supports that here.

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But if you had substantial evidence showing, let's say, employer refuses to bargain for six months, and the board finds that the remedy for that is an extension of the certification year bar, you don't dispute that that's an appropriate remedy in that case?

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Correct.

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It can be that remedy in the case that you've described.

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And here I take it that

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your challenge really is to the retrospective extension of the certification year bar to invalidate the section seven, the exercise of the disaffected members, section seven rights to decertify.

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And if you're right about that, then there's no union, there's no extension of the certification year bar, just the case is over, right?

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Right.

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And so then the question is, how do you think about, for example, we have the very test precedent that says Master Slack can coexist with extension of certification year bar.

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And I take your distinction of that to be well there, it was a prior order in place already extending.

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the certification in your bar, and that's not the case here.

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Correct.

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So that's the distinction you raised.

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Huge distinction.

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Yeah.

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Except that there are cases that the board cites a number of them that do have this particular scenario and the board is able to use the precedent that you don't want it to use.

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The dissent understands it.

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The dissent's argument is to suggest that they seem to be inconsistent, shouldn't have both on the books,

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But the board has certainly applied the rule in these circumstances.

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You simply are trying to get us to, without the board having done it itself, overrule the situation.

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The board has had cases in the past consistently.

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When it has been brought to the board, as this case was brought to the board, the board has consistently applied the rule against you.

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You can have an extension of the certification year

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looked at after the certification year if the UOP occurred during the certification year.

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That's not news.

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That's prospective, only prospectively.

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So what about, I mean, I'm probably missing something because you're way more expert in this than I am, but in Frank's Brothers, the old Supreme Court case, the court affirmed the board doing exactly this.

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The union had lost a majority

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And yet the board said there had been a refusal to bargain and the only way to remedy that was to impose an affirmative bargaining order.

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But the only reason they reached that issue was because they invalidated

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The lost the unions lost majority and said, you know, so they did both things and they did it.

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I think in that case in the kind of backward looking way that as as that's different from what we affirmed in very toss.

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I don't think that the scenario is the same.

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And I think that since, addressing Judge Edwards' point, since Master Slag, in the 21st century, in this century, there has been no case in which the board has relied on the Whispersaw precedent, which is what we're talking about here, a vacated decision.

[00:07:11] Speaker 02:
There is just no case like it where there as there are cases in the certification year that have applied the master slack standards.

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That's the issue.

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It's not that they couldn't do it, but they have to do it with applying those standards.

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I know it's in the last century of the 1998 board decision in New Madrid nursing.

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That case seems to me like whisper soft.

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And I take your point that the court, you know,

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in whisper soft for separate reasons said there's not a violation here, but the board's reasoning stands there, but doesn't new Madrid nursing apply a similar analysis to retrospectively both to apply this to extend the certification a year bar and also to invalidate an intervening loss of support for the union.

[00:08:07] Speaker 02:
Of course, not much of a board analysis.

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They just adopted the ALJ decision.

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ALJ has one mention of Whispersoft.

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It's a whole aberration.

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Whether they use the term Whispersoft or not, I guess the question is, isn't the remedial power to do this, whether you tag it as Whispersoft or something else, longstanding?

[00:08:32] Speaker 02:
How can you have, I mean, the board has created two lines of precedent at best.

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We would submit they've abandoned the whisper soft.

[00:08:40] Speaker 01:
I see that's the frailty in your arm.

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When did they abandon it?

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I mean, I understand exactly what you're trying to do.

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This is a good way to overturn board precedent when they haven't done it themselves.

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They have not abandoned this line of precedent.

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And they've had opportunities in a number of cases, which they could have, was never raised.

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It was raised on the list, and the board prosecuted.

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They've never not, when it's come up.

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Never.

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They abandoned it when they issued the Champions case, when they issued the Garden Ridge case.

[00:09:13] Speaker 06:
Not by its terms.

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So why isn't this the way to think about it?

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And I think that,

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Board member Ring's footnote at the end of his opinion is telling, he says, I appreciate that there are unfair labor practices that involve interference with bargaining, refusal to bargain in good faith, that might not taint the employee's choice to repudiate the union, because they may not even be aware of it.

[00:09:50] Speaker 06:
He said, but there are other ways to deal with that.

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But I think the board majority is saying where the unfair labor practice is about bargaining and impedes or frustrates the certification year.

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In that subset of cases, the certification year bar, including the retrospective, like in Hotel Madrid and Whispersoft,

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is appropriate.

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Now, there are reasons not to go straight there.

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There are reasons potentially to do a master slack analysis.

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And partly, it's what you started with, I think, correctly, that the dissenting employees, the Section 7 right, employees need to have a chance to choose to repudiate the union if they want.

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But if you think conceptually about can master slack cohabitate or persist consistent with

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the Hotel Madrid and the WhisperSoft analysis, why doesn't it make sense that they're overlapping but distinct analyses that may be appropriate in different situations?

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Frankly, for the reasons that the dissent said, address that point squarely, it makes it- He overstates it though in saying that there's always a toggle choice, because I don't think every master slack violation would support extension of the certification year bar.

[00:11:15] Speaker 05:
And I'd also ask

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about master slack, you seem to be relying on that as kind of the exclusive way to look at this case.

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And I'm just curious as to how that.

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because the board itself has said so.

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The board itself said that's the only way you can approach the situation.

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The board, because they were confronted with these almost identical facts, that's what precedent is.

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It's cases that are dealing with the same facts.

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And they cited and relied exclusively on master's like, no, they did not say- Look, the strength of your argument, I'm sorry.

[00:11:53] Speaker 01:
The strength of your argument is

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There are some cases in which the board could have applied whispersol and they chose to go master select.

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That's true.

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That's absolutely true.

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It's perplexing.

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One wonders why, but there are also cases where the opposite is true, where they could have applied master select and they applied whispersol and they have never abandoned the whispersol precedent, never.

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And you're trying to say, as you honestly said, well, if you look, it depends on which century you're looking in.

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That's not the way to determine the applicability of precedent.

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Master Select is an appropriate precedent.

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And what you don't like is that the board has a prosecutorial choice.

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There's nothing in the law that says the board has to prosecute by master slide or whisper song.

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I understand why you'd rather go the way you are pushing because it's a tougher burden on the board to make the case.

[00:12:52] Speaker 01:
No question.

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Certification year precedent is it's a presumption.

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That's right.

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They've never abandoned that.

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It's not our role to remove precedent when the agency hasn't considered it and made that decision.

[00:13:04] Speaker 01:
It's very clear they haven't changed.

[00:13:06] Speaker 01:
The majority in this case says,

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We are not abandoning that president.

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Majority is clear.

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That's what the board said in this case.

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We are not abandoning president.

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And it's at first say it's not just in this century.

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It's not just us.

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It's the dissenting opinion.

[00:13:23] Speaker 01:
A member of the opinion is only that a dissenting opinion.

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It is not precedent.

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And the board majority confronted with your argument rejected it.

[00:13:34] Speaker 02:
And they rejected it.

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They had their argument because the dissent raised it and the majority said, no, there is precedent on the books.

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We've always had the choice to go as we choose.

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And this was an appropriate application in their view.

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And that's the way the case was prosecuted.

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but reviewing the course of precedent with regard to Whispersoft, it has to be viewed as discredited.

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Not only was it vacated by the Ninth Circuit, it was denied enforcement.

[00:14:04] Speaker 02:
It was ignored by the board.

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This notion that it was always there to be used.

[00:14:09] Speaker 01:
The Ninth Circuit did not repudiate precedent.

[00:14:12] Speaker 01:
There were factual issues there.

[00:14:14] Speaker 06:
And what about New Madrid Nursing Center?

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I know there are subtleties in these cases, but I read it to present the same situation.

[00:14:23] Speaker 06:
And to the extent you're relying on the Ninth Circuit's vacator.

[00:14:28] Speaker 02:
But the decisions that repeatedly issued after the Madrid case, after Whispersoft, they don't even, they ignore it.

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The judge in this case ignored it.

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The general counsel ignored it.

[00:14:41] Speaker 02:
No one thought it was a precedent, except it's pulled out of nowhere.

[00:14:45] Speaker 01:
No, no, no, they chose not to prosecute.

[00:14:48] Speaker 01:
That's within their authority.

[00:14:49] Speaker 01:
The General Counsel can use any available theory to go after a ULP.

[00:14:55] Speaker 01:
That's what you don't like.

[00:14:56] Speaker 01:
I understand where you're arguing, but we can't overturn an established precedent.

[00:15:01] Speaker 01:
There's nothing in the law that says the board can't pick which theory

[00:15:06] Speaker 01:
prosecutorial theory it wants to pursue to go after unfailing.

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And based on what standards your own decisions have said, the mayor cannot create two lines of precedent.

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And that's what's happened here.

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There's no rationality to when they would pick one versus the other.

[00:15:22] Speaker 02:
There's no notice to the company.

[00:15:24] Speaker 02:
There's no notice to the employees who filed their petition.

[00:15:28] Speaker 06:
No, I was just going to say on the notice point, and that would be the basis, I think, for your

[00:15:36] Speaker 06:
distinction of veritas, that it's one thing if there's an extension of the bargaining year in place and everybody knows, it's another thing if that hasn't been decided yet.

[00:15:47] Speaker 06:
But here there were pending complaints by the general counsel specifically asking for extension of the certification year bar and explaining the basis of that.

[00:16:00] Speaker 06:
So at the time that the one year since election,

[00:16:06] Speaker 06:
expired, surely the employers on notice that that's a potential remedy.

[00:16:12] Speaker 02:
Well, a pending unfair labor practice charge complaint is significantly removed from actual order.

[00:16:20] Speaker 02:
But it does not prevail on.

[00:16:23] Speaker 06:
It does give notice of the possibility that that's a remedy.

[00:16:30] Speaker 02:
It's not been held to be.

[00:16:34] Speaker 02:
Take your point, but we don't think it alters the situation.

[00:16:37] Speaker 02:
Certainly employees sort of.

[00:16:42] Speaker 06:
It would be helpful to me in thinking about the relationship between these two lines of precedent.

[00:16:48] Speaker 06:
In your view, the conflict between them, the reason they can't coexist is what?

[00:16:55] Speaker 02:
Well, because if you use the whisper soft precedent, then it is an irrebuttable presumption.

[00:17:02] Speaker 02:
And that if you use master slack, it's a rebuttable presumption that they are in diametric opposition.

[00:17:08] Speaker 02:
They're not.

[00:17:09] Speaker 01:
They're for the different purposes.

[00:17:10] Speaker 06:
But what about if the irrebuttable presumption is based on the reasoning of the court, the Supreme Court's cases, Frank's and Brooks and the older cases,

[00:17:23] Speaker 06:
that explain, in effect, it's like a categorical taint to say if the union has been unable to function in the way that the employees might have reason to expect it to function in their behalf during that protected certification year, then even if the employees

[00:17:48] Speaker 06:
aren't aware of it, so it's not sort of bearing in that way.

[00:17:52] Speaker 06:
It's presumptively bearing on their satisfaction with the union.

[00:17:56] Speaker 06:
So I'd love to hear, because I know you have a different way of looking at that.

[00:18:00] Speaker 06:
But to me, they seem not inconsistent.

[00:18:03] Speaker 06:
And I do appreciate that master slack requires a kind of showing that the whisper soft analysis doesn't.

[00:18:11] Speaker 06:
But I think only certain kinds of unfair labor practices would support the whisper soft remedy.

[00:18:17] Speaker 06:
So it also requires a different showing that is maybe inaccessible in certain.

[00:18:23] Speaker 02:
Well, the way the board has described Whispersoft, it doesn't matter what kind of unfair labor practices they are, whereas the whole point- Right, if you can show a taint, if you can show a taint.

[00:18:32] Speaker 06:
So that is kind of a subset of unfair labor practices.

[00:18:35] Speaker 06:
And conversely, I'm sorry, I interrupted you, but conversely under Whispersoft, the kind of unfair labor practice that would show a sort of a de facto

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suspension of a portion or all of the bargaining gear.

[00:18:52] Speaker 06:
Not every unfair labor practice is going to support that either.

[00:18:55] Speaker 02:
But if that were true, then all of these other cases, they're dealing with the exact same thing about a delay in bargaining.

[00:19:01] Speaker 02:
That's really the only, the reference was made that while the unions can't doing its job or something, it was just because of a delay in bargaining.

[00:19:08] Speaker 02:
It's happened quite with some frequency and the court, the board has looked at those kinds of cases and always in decades.

[00:19:18] Speaker 02:
of the century has found that the master slack principles apply to decide, did it cause the employee disaffection?

[00:19:27] Speaker 02:
Did it cause a taint?

[00:19:29] Speaker 02:
The Whispersoft

[00:19:31] Speaker 02:
I'm not going to call it a doctrine.

[00:19:33] Speaker 02:
It's a statement that it just said, no matter what, it doesn't give it any concern to the impact on the union or the employees.

[00:19:43] Speaker 02:
It doesn't care whether it creates attention.

[00:19:45] Speaker 02:
It says, oh, you delayed bargaining.

[00:19:47] Speaker 02:
We're just going to automatically do it.

[00:19:49] Speaker 02:
that I think has been abandoned, if not outright overruled.

[00:19:53] Speaker 02:
It hasn't been overruled.

[00:19:54] Speaker 02:
I'm glad you smiled.

[00:19:56] Speaker 02:
It has not been expressly overruled, but there is such a thing as abandonment by the board when they keep issuing

[00:20:06] Speaker 02:
decisions that say the opposite.

[00:20:08] Speaker 06:
Yeah, that's my question is, is it the opposite in the sense that if the board can come to agreement by saying in the cases where there's a delay of bargaining and we can also show that it was in the consciousness of the employees that it tainted their attitude of the union, then why not do that, right?

[00:20:29] Speaker 06:
If it brings the board together, I mean, like if they had done a master slack analysis here, maybe Ring wouldn't have dissented.

[00:20:36] Speaker 06:
So you can see reasons why they would say, well, fine, we'll use that.

[00:20:42] Speaker 06:
But does it require them to abandon this other line of precedent, which has the policy of protecting that certification year and the productive interaction?

[00:20:54] Speaker 06:
of the employer and the employees.

[00:20:55] Speaker 02:
No, they don't.

[00:20:56] Speaker 02:
They don't have the right when they have repeatedly not just master slack repeatedly in five cases that the board acknowledged the majority acknowledged five times in the certification year.

[00:21:10] Speaker 02:
The board has looked at

[00:21:12] Speaker 02:
issues of delay in bargaining and has applied the master slack standards to determine does it cause did it cause the disaffection and you're talking about champion garden ridge yes and garden ridge was cited specifically in the tentacle case

[00:21:29] Speaker 02:
as the standard court within the certification year.

[00:21:33] Speaker 02:
No mention of Whispersoft there, and it was a very thorough opinion that explained the state of the law on... No one raised Whispersoft.

[00:21:42] Speaker 01:
It wasn't prosecuted on those terms.

[00:21:44] Speaker 01:
Well, what kind of precedent is that that no one raises?

[00:21:46] Speaker 01:
The board can prosecute on different theories depending upon the facts scenarios, and sometimes there's more than one theory.

[00:21:53] Speaker 01:
I certainly remember that much from my days in labor law when there were alleged ULPs that arose

[00:21:59] Speaker 01:
There may have been two or different ways that the NLRB could have prosecuted.

[00:22:04] Speaker 01:
You know that as well as I do.

[00:22:05] Speaker 01:
Well, this is an error.

[00:22:06] Speaker 01:
It's strange.

[00:22:07] Speaker 01:
I understand what you're saying, but the rationale is different.

[00:22:10] Speaker 01:
Master Crispusol guarantees that the union

[00:22:13] Speaker 01:
in fact, receives one full year of bargaining after certification.

[00:22:18] Speaker 01:
That's the theory of that prosecutorial approach.

[00:22:21] Speaker 01:
Whereas Master Slide concerns whether there's a causal relationship between the employer's unlawful conduct and the union's loss of support, a different theory.

[00:22:31] Speaker 01:
The certification year is longstanding.

[00:22:34] Speaker 01:
That notion that a union should have one year

[00:22:38] Speaker 01:
and should not have it interrupted is long standing.

[00:22:41] Speaker 01:
The board has never walked away from it.

[00:22:44] Speaker 01:
And there are times when the prosecutor sees it and uses it.

[00:22:48] Speaker 01:
But for the reason stated, you are right.

[00:22:51] Speaker 01:
There are times when the prosecutor could have used it and went with the master's leg.

[00:22:57] Speaker 01:
So what?

[00:22:57] Speaker 01:
That's not an abandonment of precedent.

[00:23:00] Speaker 02:
It's a certification year.

[00:23:02] Speaker 02:
Yes, certification from the data certification, not from the first bargaining session.

[00:23:07] Speaker 02:
And that's what's being applied by Whispersoft.

[00:23:10] Speaker 02:
They are trying to convert.

[00:23:11] Speaker 02:
In fact, in the brief of the general counsel, they describe Brooks as making it a bargaining year.

[00:23:16] Speaker 02:
It's not called a bargaining year.

[00:23:18] Speaker 02:
It's called the certification year.

[00:23:20] Speaker 02:
They complied with that.

[00:23:20] Speaker 02:
They went 54 days beyond it before they withdrew.

[00:23:25] Speaker 05:
the notion of that your client has not committed any unfair labor practices, but the board has explained that rationale and its analysis in that regard.

[00:23:34] Speaker 05:
So are you still holding on to that?

[00:23:36] Speaker 02:
Well, we deny that any unfair labor practices occurred, but with the core issue here is that even if they occur, they were not of the type

[00:23:44] Speaker 02:
that results has resulted in a bargaining order under master slack it doesn't prevent employees the employees didn't even know about whether the cost issue and and and they were the the 10 months that went by happened to be exactly what the amount of time in in tentacle was and was found not to be a reason for finding taint so the issue is they don't cause it

[00:24:12] Speaker 02:
disaffection.

[00:24:13] Speaker 02:
That means the petition was valid and the employer was entitled to rely on it to withdraw recognition as the overwhelming majority of employees asked them to do.

[00:24:23] Speaker 05:
And that's what I'd like to get to next is just kind of your if we were not to enforce the board's decision, then does that include the matter or are you suggesting that there's some type of remand?

[00:24:34] Speaker 02:
We don't think a remand is necessary or desirable.

[00:24:37] Speaker 02:
It's been four years.

[00:24:40] Speaker 02:
The board has an opportunity to get it right.

[00:24:42] Speaker 02:
We maintain or disagree, but we maintain that they got it wrong.

[00:24:46] Speaker 05:
But these matters occurred in 2018 and 2019.

[00:24:49] Speaker 05:
So what does this look like in 2023?

[00:24:52] Speaker 02:
Well, the withdrawal of recognition stands and everybody goes on about their business.

[00:24:58] Speaker 02:
Proceedings concluded.

[00:24:59] Speaker 01:
If we were to agree with your approach, WISPA solve no longer existed.

[00:25:05] Speaker 01:
would have to remand it to the board to apply master's leg.

[00:25:08] Speaker 01:
We would have to create law that the board hasn't created and say, even though you haven't thrown out whispers off, we have apply master's leg, look at the record and tell us whether there's a causal relationship.

[00:25:20] Speaker 01:
You're arguing there isn't the board hasn't said that.

[00:25:23] Speaker 02:
board since the board chose not to.

[00:25:26] Speaker 01:
No, no, no, that's not the way.

[00:25:27] Speaker 01:
Well, that's that you're saying you're saying the board.

[00:25:30] Speaker 01:
Come on, answer my call.

[00:25:31] Speaker 01:
Please, please.

[00:25:32] Speaker 01:
If the board, if your argument is the board applied the wrong law, what the circuit board does is to reverse her man for application of the correct law.

[00:25:41] Speaker 01:
And that would be to apply master's flag.

[00:25:44] Speaker 01:
and to determine whether the board, not whether you, the board thinks on this record there was a causal connection between the withdrawal of recognition.

[00:25:53] Speaker 02:
That is an option available to you.

[00:25:55] Speaker 02:
The courts have taken different approaches.

[00:25:58] Speaker 02:
I don't know that there is a specific standard that applies.

[00:26:02] Speaker 02:
I think the question is whether it's in the best interest of all the parties four years after the fact to go through another four years to get this resolved.

[00:26:11] Speaker 02:
I hate to underestimate.

[00:26:12] Speaker 02:
that it's certainly going to cause delay.

[00:26:15] Speaker 02:
We would say needless delay.

[00:26:18] Speaker 02:
If the board had this opportunity to enforce the order on proper terms and chose not to, then, you know, we think it would be best for everyone to call it a day, but you certainly have discretion to choose to remand.

[00:26:30] Speaker 02:
There's things in the dissent that the inviter

[00:26:34] Speaker 01:
If I don't add law principles correctly, we have an obligation to send it back to the agency to apply the laws that it should have applied in the first instance.

[00:26:42] Speaker 01:
That's the law that the circuit applies all the time.

[00:26:47] Speaker 01:
We don't take it upon ourselves to say, we think the employer would have won under master's flag.

[00:26:52] Speaker 01:
If we think master's flag should have been applied, we would send the case back.

[00:26:57] Speaker 02:
What we have, if the board has gotten it wrong, is they have given no good reason to not honor the withdrawal.

[00:27:06] Speaker 02:
And so that is a way in which you could also rule.

[00:27:10] Speaker 02:
But frankly, either approach is better than the situation as it stands.

[00:27:15] Speaker 02:
Now, right now, it's a complete injustice to the employees and is depriving them of their rights.

[00:27:21] Speaker 02:
I'm not sure what time I have left.

[00:27:22] Speaker 02:
But I'll say what's left of it.

[00:27:25] Speaker 01:
I give you A on persistence.

[00:27:26] Speaker 01:
Thank you.

[00:27:28] Speaker 01:
Thank you.

[00:27:28] Speaker 06:
We'll give you time for rebuttal.

[00:27:35] Speaker 06:
Morning.

[00:27:36] Speaker 04:
Morning.

[00:27:37] Speaker 04:
Mr Sauter.

[00:27:39] Speaker 06:
Sauter.

[00:27:39] Speaker 04:
Yes.

[00:27:41] Speaker 06:
Pillared.

[00:27:41] Speaker 06:
Pillared.

[00:27:45] Speaker 04:
French names.

[00:27:46] Speaker 04:
I know.

[00:27:50] Speaker 06:
Thank you.

[00:27:51] Speaker 04:
Good morning, Your Honor.

[00:27:53] Speaker 04:
This is Greg Soter from the National Labor Relations Board.

[00:28:05] Speaker 04:
Thank you for, please, the Honorable Court.

[00:28:08] Speaker 04:
Given the way the conversation has been going so far, maybe I'm going to take a little bit of an unorthodox approach and instead of launching it to some opening statement, ask the judges if you have any doubt regarding the board's findings, substantial evidence supports board's findings regarding the unlawful delay of bargaining.

[00:28:28] Speaker 04:
the failure to provide information requested and the refusal to discuss a mandatory... I mean, the principle disagreement here is over which theory the board was resting on.

[00:28:42] Speaker 01:
One requires the board in its prosecution, if you're under mass dislike, to show a causal relationship.

[00:28:49] Speaker 01:
If you're using the certification here, cases, Whispersoft, all the board has to show is ULP.

[00:28:56] Speaker 01:
occurred during the certification year.

[00:28:58] Speaker 01:
Now, you're applying this liar theory.

[00:29:02] Speaker 01:
Now, the question, obviously, you understand the weirdness in this case.

[00:29:06] Speaker 01:
You've prepared it.

[00:29:07] Speaker 01:
And it's the weirdness that the dissent points out.

[00:29:10] Speaker 01:
You're in a situation where Whispersaw is, if you're in situations where Whispersaw is clearly applicable,

[00:29:24] Speaker 01:
And the board chooses, as they have in a few circumstances, to go with the master slag, causal relationship test.

[00:29:34] Speaker 01:
How am I as an informed reader to figure out why they do that here?

[00:29:40] Speaker 01:
I don't see how they overruled anything, because in none of those cases did they talk about Whispersoft.

[00:29:46] Speaker 01:
So the board certainly has never grappled with, are we on one theory?

[00:29:50] Speaker 01:
Are they mutually exclusive?

[00:29:52] Speaker 01:
They've never said it.

[00:29:53] Speaker 01:
But how am I supposed to think about it?

[00:29:54] Speaker 01:
That's kind of weird.

[00:29:55] Speaker 01:
And that's some of what the dissent is talking about.

[00:29:58] Speaker 01:
If you've got a whisper salt to use, that's an easy win.

[00:30:04] Speaker 01:
Why would you take on the burden of master's play?

[00:30:08] Speaker 01:
Well, Your Honor, I think- Why did they take on the burden?

[00:30:11] Speaker 04:
Right.

[00:30:12] Speaker 04:
I think it goes back to the point that you made, which is prosecutorial discretion.

[00:30:16] Speaker 04:
Not the boards, but the general counsels.

[00:30:18] Speaker 04:
The general counsel comes to the board with a certain theory of the case and the board applies that theory to facts.

[00:30:26] Speaker 04:
And there are plenty of cases such as David Sachs or the other one will come back to me where the board said, you know,

[00:30:35] Speaker 04:
They overruled the administrative law judge finding there was no violation, but then they refused the union or the employers and treaties to apply another legal theory to the same facts, saying that it had not been brought to them from the beginning.

[00:30:49] Speaker 04:
In this case, just as in WhisperSoft, the general counsel came to the board from the very beginning in the complaint, actually, asking for the board to impose a remedy consistent with MARJAC and extend the certification year for the amount of period applicable.

[00:31:08] Speaker 04:
And.

[00:31:10] Speaker 06:
No, go ahead.

[00:31:11] Speaker 04:
Okay, so I recognize.

[00:31:14] Speaker 01:
When the ALJ chooses, the ALJ was applied which?

[00:31:19] Speaker 01:
in the A.L.J.

[00:31:20] Speaker 01:
apply master's like and then you're in this case in this case.

[00:31:25] Speaker 04:
Yeah, yes, but they but they the G.C.

[00:31:28] Speaker 04:
put forth both.

[00:31:29] Speaker 04:
The G.C.

[00:31:30] Speaker 04:
went the G.C.

[00:31:31] Speaker 04:
actually raised both.

[00:31:32] Speaker 04:
Yeah, they were raised both.

[00:31:33] Speaker 01:
In fact, we're only going to consider the easy one.

[00:31:37] Speaker 04:
Right.

[00:31:37] Speaker 04:
Exactly.

[00:31:38] Speaker 04:
In fact, in the general counsel's hearing brief, the general counsel said, if you find that the

[00:31:49] Speaker 04:
the certification here should be extended.

[00:31:53] Speaker 04:
In that case, the withdrawal recognition occurred during the extension, and the withdrawal recognition is unlawful, regardless of whether the master slack factors are met.

[00:32:04] Speaker 04:
So the GC was pursuing both theories.

[00:32:08] Speaker 06:
So if the board had so chosen, it could have affirmed the ALJ's master slack approach, but basically done both.

[00:32:18] Speaker 06:
Said that because we're going to extend the bargaining year, that's not only from enforcement of our

[00:32:30] Speaker 06:
order forward, but it also means that the decertification is invalid.

[00:32:37] Speaker 06:
So that same result could occur under, with a master slack analysis.

[00:32:43] Speaker 04:
I'm not sure yet.

[00:32:44] Speaker 06:
So there's sort of, when under the new Madrid at Whispersoft, Marjack, Lamar, you know, analysis, Frank's analysis, if there is an intervening decertification petition or actual

[00:32:59] Speaker 06:
decertification action before the board orders enforced.

[00:33:06] Speaker 06:
But the board determines that the certification year was effectively truncated by the employer's action.

[00:33:15] Speaker 06:
One, I mean, going back to Frank's, one of the remedial options is to reject the intervening decertification, right?

[00:33:25] Speaker 03:
The petition.

[00:33:26] Speaker 06:
Well, petition or actual.

[00:33:28] Speaker 03:
Or withdrawal of recognition.

[00:33:29] Speaker 06:
Withdrawal of recognition.

[00:33:31] Speaker 06:
Okay.

[00:33:31] Speaker 06:
And so I guess I'm wondering why the two things, the remedy that is offered under WhisperSoft and Numadrid and the like, that would also be available pursuant to a master slack merits analysis, right?

[00:33:50] Speaker 04:
It would, Your Honor, in the sense that

[00:33:54] Speaker 04:
I don't know if the board would call it an extension of a certification year or a simple bargaining order.

[00:34:00] Speaker 06:
Well, there's the bargaining order in this.

[00:34:02] Speaker 06:
I mean, you wouldn't have if it weren't an extension of the bargaining year.

[00:34:06] Speaker 06:
I mean, that's why I think Mr. Baskin is so focused on the extension of the certification year bar, because if it's just an affirmative bargaining order, well, there's no union to bargain with.

[00:34:19] Speaker 06:
Unless you invalidate the disservice.

[00:34:21] Speaker 04:
Well, unless you invalidated the withdrawal recognition.

[00:34:23] Speaker 04:
Yes.

[00:34:24] Speaker 04:
And under master slack, you can't withdraw recognition based on a tainted petition, right?

[00:34:30] Speaker 04:
So if the petition is tainted by the employer's action, the withdrawal is unlawful.

[00:34:36] Speaker 04:
the union is still there.

[00:34:37] Speaker 06:
So that's out of the way and then you can have an affirmative bargaining order.

[00:34:42] Speaker 03:
Exactly.

[00:34:43] Speaker 06:
So it puts in focus what Mr. Baskin's concern is, is that there's a level of taint that needs to be shown under master slack.

[00:34:51] Speaker 06:
Now as I read the cases, it may be that not every master slack case

[00:34:57] Speaker 06:
is a case in which, for example, an affirmative bargaining order is appropriate.

[00:35:03] Speaker 06:
It depends on whether the underlying unfair labor practices also interfered with a portion of the bargaining year.

[00:35:15] Speaker 06:
Is that your understanding?

[00:35:17] Speaker 04:
Master Slack is not tied to the certification year, Your Honor.

[00:35:22] Speaker 04:
No, I know.

[00:35:23] Speaker 04:
Exactly.

[00:35:24] Speaker 06:
I know.

[00:35:24] Speaker 06:
But WhisperSoft is.

[00:35:27] Speaker 03:
WhisperSoft is.

[00:35:28] Speaker 06:
And what I'm saying is, because Master Slack is not tied to the certification year, are there cases in which an affirmative bargaining order?

[00:35:38] Speaker 06:
I mean, I think the answer is yes.

[00:35:39] Speaker 06:
There are cases.

[00:35:40] Speaker 06:
I think my colleague has written one such opinion recently.

[00:35:44] Speaker 06:
There are cases in which there could

[00:35:46] Speaker 06:
a taint under master slack, decertification could be invalidated, but there's no affirmative bargaining order.

[00:35:54] Speaker 06:
Because the certification year bar was honored, even though the election was tainted.

[00:36:09] Speaker 04:
So let me go back just a little step.

[00:36:14] Speaker 01:
What are you proceeding under?

[00:36:15] Speaker 01:
Whispersoft or master's law?

[00:36:18] Speaker 01:
Because master's law, you've got to show a causal.

[00:36:21] Speaker 06:
Right.

[00:36:21] Speaker 06:
Under master's law, you show a causal.

[00:36:22] Speaker 06:
And that's why the election results are thrown out, is because of taint.

[00:36:26] Speaker 04:
Not the election.

[00:36:27] Speaker 04:
Not the election.

[00:36:27] Speaker 04:
Not the election.

[00:36:28] Speaker 04:
The decertification.

[00:36:29] Speaker 06:
The decertification.

[00:36:30] Speaker 06:
The decertification.

[00:36:32] Speaker 06:
Right.

[00:36:32] Speaker 06:
And when you say not, isn't a decertification pursuant?

[00:36:35] Speaker 04:
No, it's a petition.

[00:36:37] Speaker 04:
It's a petition.

[00:36:37] Speaker 04:
The union, the employees come to the employers say, we have, majority of us have signed this petition.

[00:36:43] Speaker 04:
We want to get rid of the union and therefore we want the board to hold election to show that we no longer want the union here.

[00:36:50] Speaker 06:
So it's a preliminary step prior to the... So in this case, there was a petition, but the union remains in place.

[00:36:58] Speaker 04:
Well, because the union, what will happen is there will be a... So there was no decertification petition and there was no board action on it.

[00:37:06] Speaker 04:
There was a decertification petition.

[00:37:07] Speaker 04:
I'm sorry, this is an elementary, but it's not up to me.

[00:37:10] Speaker 04:
No, no, no, no, not at all.

[00:37:11] Speaker 04:
Believe me, my head hurts.

[00:37:12] Speaker 04:
There was a decertification petition.

[00:37:17] Speaker 04:
The proper way to handle that would be for the employer to say, the employees say they don't want the union anymore.

[00:37:28] Speaker 04:
We're throwing up our hands.

[00:37:29] Speaker 04:
We're going to ask for the board to decide this.

[00:37:32] Speaker 06:
They petition the board.

[00:37:33] Speaker 04:
They petition the board or the employees petition the board.

[00:37:36] Speaker 04:
The board has to come in and figure out what the status is here.

[00:37:40] Speaker 04:
Do the employees still want the union or not?

[00:37:43] Speaker 06:
And that has not happened in this case.

[00:37:45] Speaker 04:
No, because the employer jumped the gun and with recognition.

[00:37:49] Speaker 06:
And now you're in with drew recognition, but that's and is so is the status quo that there is no recognition.

[00:37:56] Speaker 06:
It's just something they can do unilaterally.

[00:37:58] Speaker 04:
So it's something they can do unilaterally at their own peril.

[00:38:02] Speaker 04:
If they and if they're in the situation, they are here and the board finds that the unlawfully withdrew recognition.

[00:38:08] Speaker 04:
Well, they have to face consequences.

[00:38:11] Speaker 01:
If it's within the certification year.

[00:38:13] Speaker 01:
the consequences are most severe which is what the other side's fighting.

[00:38:17] Speaker 01:
I don't want that presumption that you can't do that in the certification year and you have caused the union to lose what the losses are entitled to is one year of good faith bargaining.

[00:38:29] Speaker 01:
You took that away.

[00:38:30] Speaker 04:
Exactly and not just any year of good faith bargaining.

[00:38:33] Speaker 04:
The first year that there is no

[00:38:37] Speaker 04:
This is a unique moment in the collective bargaining relationship.

[00:38:41] Speaker 04:
This will never happen again.

[00:38:42] Speaker 04:
I appreciate that.

[00:38:43] Speaker 06:
I've read the Supreme Court cases.

[00:38:44] Speaker 06:
I've read all the other board precedent on this.

[00:38:46] Speaker 06:
So it's your position that because there was a complaint pending that had asked for extension of the certification year, that that should put J.G.

[00:38:59] Speaker 06:
Kern on notice when it

[00:39:02] Speaker 06:
withdraws recognition, that actually the wiser thing to do at that point would be petition for an election because that would cover them better if the petition to extend the decertification, if the complaint seeking extension of the decertification year succeeded.

[00:39:24] Speaker 06:
How is the employer, the employer thinks, you know,

[00:39:30] Speaker 06:
These unfair labor practice claims are going to come in our favor.

[00:39:34] Speaker 06:
We bargained in good faith.

[00:39:36] Speaker 06:
We didn't do the things that the GC charges us with having done.

[00:39:43] Speaker 06:
We see that there's a petition to decertify.

[00:39:49] Speaker 06:
Our options here are withdraw recognition unilaterally or petition the board.

[00:39:55] Speaker 06:
Is there any greater protection?

[00:39:56] Speaker 06:
Is there any third option and is there any greater protection for the employer in that uncertain moment?

[00:40:02] Speaker 04:
Well, the greater protection is to petition the board for an election to resolve the issue.

[00:40:08] Speaker 06:
And why and would that resolve the issue?

[00:40:10] Speaker 04:
If the board, if there is a question as raised by the employee's petition that they do no longer want the union to represent them, then a board supervised election will resolve the issue.

[00:40:21] Speaker 06:
And is like one arm of the board going to know what the other arm is doing?

[00:40:24] Speaker 06:
Like would the unfair labor practices necessarily be resolved before the decision about whether to hold an election?

[00:40:31] Speaker 04:
I think they,

[00:40:38] Speaker 04:
I don't want to step out of this case too much.

[00:40:43] Speaker 04:
But I think that, obviously, assuming that there would first have to be an analysis as to whether the petition is legitimate, or if it's tainted by the employer's unfair labor practices.

[00:40:55] Speaker 04:
If it is, then the petition itself is unlawful, and you don't have an election.

[00:41:01] Speaker 04:
However, if it turns out the employees have sous-espanté of their own accord without undue

[00:41:07] Speaker 04:
influence decided that they want to get rid of the union, then the election goes forward.

[00:41:15] Speaker 06:
So in the process of deciding the petition for an election, the board would decide whether the employees petition was tainted, but they wouldn't decide.

[00:41:32] Speaker 06:
whether it occurred, whether an extension of the bargaining year was warranted?

[00:41:37] Speaker 04:
You were just talking about this very specific situation of whether the petition is lawful or not or when the election would follow.

[00:41:52] Speaker 04:
If the decertification petition is tainted,

[00:41:57] Speaker 04:
then the board remedies that by saying you have to bargain with the union.

[00:42:04] Speaker 06:
Right.

[00:42:06] Speaker 06:
But if there's a petition and there's not the kind of unfair labor practices that would influence, that would necessarily meet the master plan.

[00:42:18] Speaker 06:
My question is how conceptually does the board think about the whisper soft hype issue in the context of deciding whether to grant a petition for a decertification election?

[00:42:37] Speaker 01:
I want to add to the question.

[00:42:42] Speaker 01:
Sure, go ahead.

[00:42:44] Speaker 01:
The theory of Whispersoft in the certification year is you have to allow the union, unimpeded, to have good faith bargaining for one year.

[00:42:52] Speaker 01:
That's what the fight is if anything goes to the board.

[00:42:55] Speaker 01:
One side's going to be saying,

[00:42:57] Speaker 01:
The employees have lost interest.

[00:42:59] Speaker 01:
The other side is going to be saying, we didn't get a full year because three, four months ago, before this policy was being filed, they wouldn't give us information.

[00:43:07] Speaker 01:
They wouldn't agree to any meetings.

[00:43:09] Speaker 01:
They wouldn't talk to us.

[00:43:10] Speaker 01:
They spit at our representative.

[00:43:12] Speaker 01:
We never had an opportunity for four or five months to bargain.

[00:43:16] Speaker 01:
So all the stuff about the petition really is looking at that.

[00:43:20] Speaker 01:
Did they get for a year an opportunity to bargain?

[00:43:24] Speaker 01:
And if the board finds,

[00:43:26] Speaker 01:
It either could be a ULP filed against the union, if I remember this correctly, ULP filed against the employer saying, they won't talk to us anymore.

[00:43:35] Speaker 01:
They've withdrawn recognition because they think the employees are gone, or the reverse.

[00:43:40] Speaker 01:
The union or the employees come in and file a petition for dessert.

[00:43:43] Speaker 01:
The question is the same.

[00:43:44] Speaker 01:
Did the union during the certification year get the benefit of a full year?

[00:43:50] Speaker 01:
And if not, the board has traditionally extended the year and told the union, even though it may go on forever, years later, months later, they say, now give them the full months you didn't give them.

[00:44:01] Speaker 01:
Am I right or wrong?

[00:44:02] Speaker 04:
Yeah, no, that's absolutely correct.

[00:44:04] Speaker 04:
And to yes, the answer for you is unequivocally yes.

[00:44:10] Speaker 04:
For Judge Pillard, I guess what I'm getting back to your issue is if

[00:44:17] Speaker 04:
If you have a decertification petition that occurs in the context like this one, where there was a delay of bargaining, where the union alleges that it did not get its full 12 months of bargaining, then the board will resolve that.

[00:44:33] Speaker 04:
Because if that is the case, you don't even have to look at whether

[00:44:41] Speaker 04:
whether the petition was tainted or not, it just happened during the extension of the certification.

[00:44:46] Speaker 04:
Now, I was going to ask if maybe you were a board member in a prior life, because you quite stupidly pointed out that sometimes the board will go with one theory of liability over another, because that's how they can all agree to find a violation.

[00:45:06] Speaker 05:
In that regard, though, are we needing to put into the opinion

[00:45:11] Speaker 05:
whether we're driven by Whispersoft or Master Slag?

[00:45:16] Speaker 04:
Well, the board relied solely on Whispersoft to decide this case, so I think yes.

[00:45:22] Speaker 01:
If you enforce the board's order, you would be... Let's be clear in this, the board has not made Master Slag.

[00:45:28] Speaker 01:
Findings no council your opposition is correct.

[00:45:31] Speaker 04:
There are no causal findings here No, and and I agree with your point earlier that if you were to reverse the board the proper proper Avenue would be manned or a master slack analysis determine whether or not the UL peas Affected the loss of employees.

[00:45:51] Speaker 01:
Exactly.

[00:45:52] Speaker 06:
That's the master exactly I think my colleagues probably know this and they would tell me but I'm gonna ask you

[00:45:59] Speaker 06:
What is the difference between a MARJAC remedy and an affirmative bargaining order?

[00:46:05] Speaker 06:
Is there any?

[00:46:07] Speaker 04:
A MARJAC remedy is an extension of the certification year.

[00:46:10] Speaker 04:
As opposed to an affirmative bargaining order that can happen, as I was saying earlier, there's only one certification year.

[00:46:17] Speaker 04:
An affirmative bargaining order can be given at any time later in the relationship.

[00:46:21] Speaker 04:
MARJAC remedy is specifically the certification year.

[00:46:26] Speaker 06:
And yet the MARJAC situation, there was no derecognition of the union.

[00:46:34] Speaker 06:
And so it didn't have the part that I take it Mr. Baskin is most concerned about, which is,

[00:46:41] Speaker 06:
in validating or reviving the union as the representative.

[00:46:46] Speaker 06:
So that wasn't an issue in MARJAC.

[00:46:48] Speaker 04:
In MARJAC, the issue was that the employer had petitioned to decertify the union because it believed the employees no longer

[00:46:59] Speaker 06:
So that's the answer to my prior question.

[00:47:01] Speaker 06:
OK, this is coming together.

[00:47:02] Speaker 04:
Oh, I am OK.

[00:47:03] Speaker 06:
Thank you.

[00:47:04] Speaker 06:
Thank you.

[00:47:05] Speaker 06:
And I wish I could have shorts.

[00:47:06] Speaker 06:
But an affirmative bargaining order in this context is not really different functionally from our debt because the reason that they're being given more bargaining is because they're extending.

[00:47:16] Speaker 04:
So it's not functionally different, but it is different in the sense of.

[00:47:22] Speaker 06:
Margec, it has a certification year bar, affirmative bargaining order, not necessarily.

[00:47:26] Speaker 04:
Exactly.

[00:47:27] Speaker 04:
Is that right?

[00:47:29] Speaker 04:
Well, once there's a decertification bar, you have to bargain.

[00:47:32] Speaker 04:
I mean, the certification year, the rule in the certification year is the union has majority status, and the employer has to, during that year, to recognize and bargain with it.

[00:47:42] Speaker 04:
Those are the two things.

[00:47:43] Speaker 06:
So functionally- Whether you're in the certification year or not, you have a duty to bargain.

[00:47:47] Speaker 06:
So that's why I'm trying to understand what an affirmative bargaining order is, if it's not

[00:47:52] Speaker 06:
the duty that's there anyway, which is you have to bargain with the youth when your employees are represented.

[00:47:56] Speaker 01:
So, certification year is over.

[00:47:59] Speaker 01:
Yes.

[00:47:59] Speaker 01:
Nothing happened.

[00:48:01] Speaker 01:
And then, and the union is still around.

[00:48:04] Speaker 01:
And then the employer, a few months, whatever, after the certification year, says, I have a whole bunch of petitions from the employees saying they don't want this union anymore.

[00:48:18] Speaker 01:
The union says,

[00:48:19] Speaker 01:
after the certification years over, you did all kinds of bad things.

[00:48:23] Speaker 01:
We were still there, presumptively the bargaining agent.

[00:48:28] Speaker 01:
You refused to talk to us.

[00:48:29] Speaker 01:
You fired some people who were union leaders, all kinds of things.

[00:48:32] Speaker 01:
So the fight is going to be, is there any causal connection between the ULPs and the alleged loss of some employee support, right?

[00:48:42] Speaker 01:
Yes, yes.

[00:48:44] Speaker 01:
And if the employer loses a bargaining order, right?

[00:48:49] Speaker 01:
Yes, exactly.

[00:48:50] Speaker 06:
And so it's a way of holding off a looming petition for a decertification election.

[00:49:02] Speaker 04:
Yes, basically it's a way of saying from now on for a specific amount of time, the union is once again presumed to have majority status and you have to bargain with it.

[00:49:13] Speaker 04:
Now, I'm sure there are reasons the board refers to the two of them

[00:49:18] Speaker 04:
separately besides the fact that one occurs right after the certification year there are probably some some nuances but for the purpose of this our discussion here it's it's more or less the same thing the remedy is the same you have to recognize and bargain with the union for a certain amount and then i have i know we're keeping neither of you expect to be here this long but where to go is there any um if we held that the board could only impose

[00:49:45] Speaker 06:
certification year extension before an employer's withdrawal of recognition.

[00:49:50] Speaker 06:
In other words, only we would limit the whisper soft type remedy to a very tough situation, a very tough situation.

[00:49:58] Speaker 06:
Exactly.

[00:49:59] Speaker 06:
Is there any, how feasible is it that the board could provide remedies to unfair labor practices within the certification year?

[00:50:10] Speaker 03:
Well,

[00:50:11] Speaker 06:
and do an extension that's not retrospective in the way that Mr. Baskin is telling us is really painful.

[00:50:20] Speaker 04:
To be quite honest, Your Honor, it wouldn't happen.

[00:50:24] Speaker 04:
The board is

[00:50:27] Speaker 04:
willfully understaffed, if I may say so.

[00:50:29] Speaker 04:
I mean, there's just no way to keep up with, especially right now, and much as the board would love to decide these cases as they come, it takes time.

[00:50:40] Speaker 04:
And that is- In Veritas, that was- No, no.

[00:50:47] Speaker 04:
In Veritas, what happened was that the employer, with true recognition, the board found

[00:50:56] Speaker 04:
You violated the certification year.

[00:50:58] Speaker 04:
We're imposing a prospective extension.

[00:51:02] Speaker 04:
And then the employer, again, tried to withdraw recognition during the extension.

[00:51:08] Speaker 04:
So that's what happened.

[00:51:09] Speaker 04:
And you can see how long that can take.

[00:51:12] Speaker 04:
And I wanted to get back to something that you had sort of been alluded to earlier.

[00:51:20] Speaker 04:
The reason we're here right now is because, as you pointed out, it is very difficult for the board to resolve these issues in real time.

[00:51:31] Speaker 04:
And what the company is trying to do here, essentially, is to take advantage of the delays inherent in the administrative process to make an end run around the certification year, Doctor, and to avoid its duty to bargain.

[00:51:47] Speaker 04:
It's basically trying to take advantage of the fact that the board can't be everywhere at once.

[00:51:51] Speaker 06:
But what about the notice concerns?

[00:51:54] Speaker 06:
I mean, if you're an employer, if you're a union, if you're employees that don't want union representation and you come to the putative end of the decertification year and you want to know how to act and not dig yourself into a deeper hole,

[00:52:15] Speaker 06:
General counsel has sought an extension of the decertification year.

[00:52:19] Speaker 06:
It hasn't been acted on.

[00:52:22] Speaker 06:
But if you would give your best answer to Mr. Baskin's notice concerns, that would be helpful.

[00:52:27] Speaker 01:
Don't do bad things during the certification year.

[00:52:31] Speaker 01:
I mean, that's it.

[00:52:32] Speaker 01:
That's already water under the bridge.

[00:52:35] Speaker 01:
That's what the board's looking back at, right?

[00:52:38] Speaker 01:
To get the extension.

[00:52:39] Speaker 01:
That is, yes, that is basically the answer.

[00:52:43] Speaker 01:
If you do bad things during the certification year and this all comes up afterwards, you're going to pay.

[00:52:50] Speaker 01:
And it's no winning argument for you to say under this approach, oh, wait, we're already past the certification year.

[00:52:56] Speaker 01:
Too bad you did bad things there.

[00:52:58] Speaker 01:
And there's a presumption that it had an effect.

[00:53:00] Speaker 01:
And here's the remedy.

[00:53:01] Speaker 01:
We extend the certification year.

[00:53:03] Speaker 01:
That's the rule.

[00:53:04] Speaker 04:
Now, if I may.

[00:53:06] Speaker 04:
Things to add.

[00:53:07] Speaker 04:
It is, yes.

[00:53:08] Speaker 04:
It is the way Judge Edwards says it.

[00:53:12] Speaker 04:
It sounds harsh.

[00:53:14] Speaker 04:
But you have to remember, this is when you're talking about- Nothing Judge Edwards says ever sounds harsh.

[00:53:22] Speaker 01:
The gentlest person on this board.

[00:53:26] Speaker 04:
Absolutely.

[00:53:27] Speaker 04:
Especially today.

[00:53:32] Speaker 04:
When you're talking notice,

[00:53:34] Speaker 04:
You're talking about notice.

[00:53:37] Speaker 04:
You're not talking about due process, right?

[00:53:39] Speaker 06:
Notice is an element of due process.

[00:53:41] Speaker 06:
Last time I checked, key element of it.

[00:53:43] Speaker 04:
Yes, but it is an element once complaint issues.

[00:53:47] Speaker 04:
It is an element of the...

[00:53:51] Speaker 06:
It is not.

[00:53:52] Speaker 06:
There's no workout with the doctrine.

[00:53:53] Speaker 04:
OK, but there's no I don't unless maybe you could correct me.

[00:53:57] Speaker 04:
I don't think there is a due process requirement for an employer to know what legal theory the board is going to use against it at the time that it commits the unfairly.

[00:54:07] Speaker 06:
I'm asking a more practical question.

[00:54:09] Speaker 04:
about?

[00:54:10] Speaker 04:
No, I understand.

[00:54:12] Speaker 06:
I do renote it.

[00:54:14] Speaker 06:
So in terms of whether you adopt or would tweak the explanation that my colleague gave, that the conundrum that Mr. Baskin's client finds itself in is no conundrum at all because it's a pit of its own making.

[00:54:32] Speaker 06:
Or any other answer about

[00:54:37] Speaker 06:
The safe thing to do is to petition.

[00:54:40] Speaker 04:
The safe thing to do in this case would be now.

[00:54:48] Speaker 04:
The safe thing to do in this case would be to ask for the board to step in.

[00:54:52] Speaker 04:
You have this petition going on.

[00:54:54] Speaker 04:
Now the board is obviously gonna, and not withdraw.

[00:54:57] Speaker 04:
Because you're asking for it.

[00:54:59] Speaker 04:
Yes, and not withdraw recognition and let all the charges and complaints and all that stuff be resolved by the board and that the chips fall where they may.

[00:55:10] Speaker 04:
Now, the employer may find itself back in the situation where it is today, meaning with an extension of the certification year, because for one reason or another,

[00:55:24] Speaker 04:
attention was unlawful or whatever, but it will not have unlawfully withdrawn recognition.

[00:55:29] Speaker 06:
Again, I'm at risk of displaying my ignorance.

[00:55:31] Speaker 06:
Do employers ever ask for decertification elections?

[00:55:36] Speaker 04:
It happened in Marjack.

[00:55:38] Speaker 04:
That was a long time ago.

[00:55:39] Speaker 04:
But no, it does happen.

[00:55:41] Speaker 04:
It does happen.

[00:55:41] Speaker 04:
Yes, sure.

[00:55:43] Speaker 04:
I think it depends on the advice that they receive and on how certain they are of their standing with employees.

[00:55:58] Speaker 00:
you.

[00:55:59] Speaker 03:
Thank you.

[00:56:00] Speaker 03:
With that.

[00:56:00] Speaker 03:
Thank you very much.

[00:56:01] Speaker 03:
And we asked with the

[00:56:10] Speaker 06:
Mr. Baskin, we kept you up here and used up all your rebuttal time, but we will give you two minutes for rebuttal.

[00:56:15] Speaker 02:
Well, I'll be brief because what's at stake here is the mode of analysis.

[00:56:22] Speaker 02:
Are you going to leave the regulated community rudderless with a board that is not a prosecutor, by the way, it's not prosecuting.

[00:56:30] Speaker 02:
The board is supposed to adjudicate cases that come before it and you have in

[00:56:34] Speaker 02:
many, many cases said to the board, you've got to have your precedents match up.

[00:56:41] Speaker 02:
You can't just go on a tangent at a whim.

[00:56:44] Speaker 02:
because it's Thursday or for some other irrational reason.

[00:56:49] Speaker 02:
And there is no rationality to this.

[00:56:51] Speaker 02:
You know, they have created a per se rule.

[00:56:53] Speaker 02:
I go back to what Judge Edwards, you described on what an employer could do is not do bad things.

[00:57:00] Speaker 02:
But you were describing the master slack test, which is how bad are they?

[00:57:05] Speaker 02:
Or, in response to what your question was, what could they do to protect themselves?

[00:57:10] Speaker 02:
Well, if you've delayed, you could make sure to cure that delay by engaging in two meetings a month over the rest of the 10-month period, finding 35 different agreements, making extensive progress towards resolution of the bargaining.

[00:57:28] Speaker 02:
And that should do it.

[00:57:29] Speaker 02:
Under Master Slack, it would.

[00:57:31] Speaker 02:
and they pull out of nowhere this per se rule.

[00:57:35] Speaker 02:
It says once you miss that deadline of the, you know, you didn't hold the first meeting for January 10th, why it wasn't January 9th or December 17th when the company representative said it was available.

[00:57:47] Speaker 02:
Putting that aside, once that happens, it's over and you didn't even know it because we at the board can pick and choose the rationales when we feel like that's wrong.

[00:57:57] Speaker 02:
You said it's wrong and we ask that you say it again.

[00:58:00] Speaker 06:
Thank you.

[00:58:01] Speaker 02:
Thank you.

[00:58:04] Speaker 06:
Case is submitted.