[00:00:00] Speaker 04: Case number 23-1235 et al. [00:00:02] Speaker 04: Hood River Distillers, Inc. [00:00:05] Speaker 04: Petitioner versus National Labor Relations Board. [00:00:09] Speaker 04: Ms. [00:00:09] Speaker 04: Petrova for the petitioner, Ms. [00:00:11] Speaker 04: Beard for the respondent. [00:00:13] Speaker 03: May begin, thank you. [00:00:15] Speaker 04: Thank you. [00:00:16] Speaker 04: May it please the court, Sasha Petrova on behalf of Petitioner Hood River Distillers. [00:00:20] Speaker 04: I'd like to reserve two minutes of my time for rebuttal, please. [00:00:24] Speaker 04: The board's decision in this case effectively means that no matter how diligently an employer pursues bargaining with a union, no matter how long the parties actually bargained for on the same critical issues, a union can still avoid impasse by simply denying that it exists, making incremental 11th hour movements, and then placing conditions on bargaining that it knows are impossible to meet in order to avoid having to test an employer's last, best, and final offer. [00:00:52] Speaker 04: The record in this case does not support the board's conclusion. [00:00:57] Speaker 04: For 14 months, HRD attempted to make a new agreement with the union. [00:01:01] Speaker 04: HRD offered upwards to 80 bargaining dates with the union. [00:01:05] Speaker 03: Are you aware of any cases where a court has concluded that there was no valid impasse when the parties negotiated for 14 months or more? [00:01:17] Speaker 04: I am not aware of such a case. [00:01:21] Speaker 03: If we agree with you that there was an impasse, should we vacate the board's order in its entirety? [00:01:29] Speaker 04: We did make a couple concessions in our reply brief as to which parts of the board's order do not directly stem from the impasse determination. [00:01:38] Speaker 04: But for the most part, the impasse determination here is what drove the majority of the violations, findings, and the consequential, the remedy that was actually implemented. [00:01:51] Speaker 00: I don't understand if that's a yes or no. [00:01:54] Speaker 04: Yes, please. [00:01:55] Speaker 04: We would like to, yes, we would ask that if you find an impasse that we would vacate the decision and reverse it. [00:02:00] Speaker 03: Do you know moving from impasse to regulatory tactics and bad faith, [00:02:05] Speaker 03: Do you know if this court has ever relied on dilatory tactics to conclude that an employer had a right to unilaterally implement its last offer? [00:02:17] Speaker 04: Your honor, I'm not aware of any instances of this court actually finding that that exception would apply. [00:02:23] Speaker 04: The one case that we discussed in the briefing is the Sarah Monte Oldsmobile case. [00:02:28] Speaker 04: And in that case, this court found that the exception [00:02:31] Speaker 04: to impasse rule didn't apply ultimately because the challenge delay was about a month for the union to come to the bargaining table and when it did get there, the union apparently didn't make any specific proposals or counter proposals on that date. [00:02:47] Speaker 04: And in that case, the ALJ found that the evidence was not clear as to which party was primarily responsible for that month of delay. [00:02:54] Speaker 04: And so under those circumstances, there was no exception to impasse. [00:03:00] Speaker 04: But here we have something much, much different. [00:03:02] Speaker 04: And I think the briefs adequately explain the length of delay, the overwhelming amount of time that HRD spent. [00:03:11] Speaker 04: Let's talk about the 14 months, because it seems to me that [00:03:14] Speaker 05: there was a lot of progress in the first seven months. [00:03:17] Speaker 05: And you came very close to reaching an agreement. [00:03:20] Speaker 05: But then it was HRD that sort of scrambled the negotiations, because HRD made a decision that they really wanted to focus on health care. [00:03:31] Speaker 05: And there was sort of a balance between, like, should we focus on achieving our goals on health care plan versus wages? [00:03:38] Speaker 05: And it seemed that after seven months of negotiation and people got very close to a deal, HRD changed its focus. [00:03:44] Speaker 05: And then we're looking at the second half of the seven months. [00:03:49] Speaker 05: And then there was a month where there was delays in January where it was nobody's fault. [00:03:55] Speaker 05: But ice storms, medical things happened. [00:03:57] Speaker 05: And then they start negotiating again in March. [00:04:01] Speaker 05: And then on the last bargaining day, [00:04:04] Speaker 05: It was productive there was movement and then it was HRD email that said I appreciate the progress the parties made today on health care, however, the company in the union have come as far as they can go on and the other open matter matters, but it's hard to say that you're at the end of your rope and. [00:04:23] Speaker 05: an impasse when you've just said I appreciate the progress we've just made and there was movement on wages as well because both you moved you added an extra year to the bargain you had said we want 1% for these three years and you've added a fourth year so you moved on wages and they moved on wages because they said now we're going to accept [00:04:46] Speaker 05: something lower than what we originally had. [00:04:48] Speaker 05: So it's just really hard for me to see that there's an impasse given that the last time you bargain, there was movement on both sides. [00:04:55] Speaker 04: So your honor, we would take issue with that characterization of the record in some respects, because at the very start of bargaining, it was made clear to the union that [00:05:04] Speaker 04: there were going to be significant concessions requested on both health care and wages. [00:05:10] Speaker 04: And from the start, there was a wide gap. [00:05:12] Speaker 04: I believe the first offer was a 6% total increase in wages from the union at the very start of negotiations and no move to health plan. [00:05:21] Speaker 04: Now, by the end of negotiations, yes, that gap on wages decreased and the union proposed potentially to move to the [00:05:28] Speaker 04: employer health plan. [00:05:30] Speaker 04: That seems like huge progress. [00:05:32] Speaker 04: After 14 months of back and forth. [00:05:35] Speaker 05: Well, I kind of look at this as the back seven because the first seven was productive and the reason it got sort of wiped out was because HRD changed its position. [00:05:45] Speaker 04: Respectfully, we would disagree. [00:05:46] Speaker 04: HRD has been consistent that it would not entertain a wage increase of higher than 1% since about September. [00:05:56] Speaker 04: But on March 30th, you added a year. [00:05:58] Speaker 05: Which is a change. [00:05:59] Speaker 05: That's a change to your wage negotiating position. [00:06:02] Speaker 04: So that change was based on the fact that the parties had been negotiating for 14 months. [00:06:06] Speaker 04: So it basically is essentially made in order to make sure that the parties actually entered into a three-year perspective agreement rather than something much, much shorter. [00:06:14] Speaker 04: OK. [00:06:14] Speaker 04: But you changed your position. [00:06:16] Speaker 05: You added a year. [00:06:17] Speaker 05: It's a negotiation about wages. [00:06:19] Speaker 05: You were saying 1% for these three years. [00:06:21] Speaker 05: Now you're adding a fourth year. [00:06:22] Speaker 05: So that's a change in your position. [00:06:24] Speaker 05: I'm just saying it doesn't look like an impasse to me when you're making a new offer on wages. [00:06:32] Speaker 04: was a new offer on only in the length of the actual contract but effectively that's real money because the one percent builds on what's come before it you've you've changed your position of wages i think the bottom line though is that the one percent uh increase is we never strayed from the one percent increase and despite every offer that was made to us suggesting 2.5 2.25 you never [00:06:57] Speaker 05: on the amount of the increase, but you strayed on the number of years it covers, which is a different amount of money. [00:07:04] Speaker 05: So it's a different change in wages. [00:07:06] Speaker 04: And I think the bottom line being that it was still a bigger increase that HRD was willing to entertain. [00:07:15] Speaker 04: And it had explained that position very clearly to the union on the 30th. [00:07:21] Speaker 04: I guess the point is, [00:07:24] Speaker 05: All this is a differential standard review. [00:07:27] Speaker 05: We just have to see if the board's decision is supported by the evidence. [00:07:31] Speaker 05: And the board says this wasn't an impasse. [00:07:34] Speaker 05: There was all this movement on March 30th, which was the last time you bargained. [00:07:38] Speaker 05: And that's supported by the evidence. [00:07:40] Speaker 05: You moved and they moved. [00:07:42] Speaker 05: March 30th, that's it. [00:07:43] Speaker 04: That's supported. [00:07:45] Speaker 04: There was movement at the last bargaining session, but it was very incremental. [00:07:49] Speaker 04: And the point here is- Doesn't matter. [00:07:52] Speaker 04: It's not an impasse. [00:07:52] Speaker 04: You're not at the end of your rope. [00:07:54] Speaker 04: We were at the end of their rope. [00:07:55] Speaker 04: And we specifically said that in our last, best, and final offer. [00:07:58] Speaker 04: There's no reason to doubt- You said that for the fifth time. [00:08:00] Speaker 04: Our position on that, I will address that certainly, but it was actually one prior LBF. [00:08:08] Speaker 04: But the point being here is that there was an offer on the table that said that we as the employer are unwilling to move any further than the current, the final offer. [00:08:19] Speaker 04: And it was communicated very clearly. [00:08:21] Speaker 04: And in response, all we got was [00:08:23] Speaker 04: We're not going to meet with you further, unless it's in person, which was impossible at the time. [00:08:28] Speaker 04: And so our position is that we were at the end of our rope. [00:08:33] Speaker 04: There was no reason to doubt that we were at the end of our rope. [00:08:38] Speaker 05: Except that you said you were at the end of your rope four times before, and you were, and you kept negotiating. [00:08:45] Speaker 00: So our position is that we were not at the end of our rope four times and it was one lbf and i'm happy to address that so that issue is have you used the same or similar language when you were acting like you were final you know in your decision making so that we would then say well it didn't appear to be final because you said it'd be [00:09:07] Speaker 04: I think there was significant difference in the LBF that came in March 30th. [00:09:13] Speaker 04: So first, it was issued through HRD's attorney, which the prior offer was communicated through the HR manager. [00:09:19] Speaker 04: But I'm asking about language. [00:09:20] Speaker 04: Yes, and the language specifically in [00:09:25] Speaker 04: March 30th. [00:09:27] Speaker 04: It's it made clear in very certain terms that there was no more room on wages and the record reflects this. [00:09:34] Speaker 04: And so it was qualitatively different and the first LBF came at the heels of about one and a half months of HRD not hearing back from the union after making its last proposal. [00:09:45] Speaker 04: And as the court is, I'm sure, well aware, impasse is intended to continue negotiations to the point in time, and it can be overcome. [00:09:53] Speaker 04: And so here, the record does not reflect any indication that HRD made the last best offer initially in any bad faith. [00:10:02] Speaker 04: It wanted to continue negotiating with the union. [00:10:04] Speaker 04: It was attempting to schedule for it. [00:10:06] Speaker 05: But the issue is just the credibility of you declaring an impasse when you've previously done so. [00:10:11] Speaker 05: And it wasn't real. [00:10:13] Speaker 05: Like, how is the union supposed to know when you mean it and when you don't, when you just do this as a bargaining? [00:10:17] Speaker 05: There's evidence in the record that your HR person said that you would declare an impasse without meaning it. [00:10:23] Speaker 05: This is J.A. [00:10:25] Speaker 05: 2094 to 96, human resources manager, Jeanine Summerfield. [00:10:31] Speaker 05: If we were still not going to hear anything or any movement from them, we were willing to take the next step. [00:10:34] Speaker 05: Yes, we were hoping we would get back to the bargaining table. [00:10:37] Speaker 05: That's the in response to a question about why did you declare an impasse? [00:10:40] Speaker 05: They just wanted to set dates, and they would declare an impasse. [00:10:43] Speaker 05: And then the question was, I believe you testified that this declaration of impasse, you really didn't mean to declare impasse, but this was more of a bargaining strategy to get the union back to the table. [00:10:53] Speaker 05: Do you recall that testimony? [00:10:54] Speaker 05: Answer, yes. [00:10:56] Speaker 05: I'm sorry. [00:10:57] Speaker 05: Best case scenario, that is what we were hoping to do, to get some bargaining dates on the calendar and not to have to declare an impasse. [00:11:03] Speaker 05: So you're strategically declaring impasses throughout this negotiation. [00:11:07] Speaker 05: How are they supposed to know when you really mean it? [00:11:10] Speaker 04: I would, again, disagree. [00:11:11] Speaker 04: So sure, there was a declaration at impasse, and it was intended to bring the union back to the bargaining table. [00:11:17] Speaker 04: There is nothing in the record that suggests that that's a nefarious intention. [00:11:22] Speaker 04: I'm not saying it's nefarious. [00:11:23] Speaker 05: It's just that when do we take it seriously when you're declaring an impasse, when sometimes you do it just to get them back to the bargaining table, and then sometimes you do it, and then all of a sudden unilaterally impose your own terms? [00:11:34] Speaker 04: I think in this case, it is very clear at the end. [00:11:38] Speaker 04: Again, a very detailed letter was issued by the... I mean it this time. [00:11:45] Speaker 04: You know, there is a different gravity coming from a party's attorney. [00:11:50] Speaker 04: I would say it imbues the offer with legitimacy. [00:11:53] Speaker 04: This is our final bargaining position. [00:11:54] Speaker 04: We are using the word impasse because we are at the very end of our rope and we are saying the other side of the table. [00:12:02] Speaker 05: They're supposed to be reading into what you're saying, depending on who's saying it. [00:12:06] Speaker 05: I feel that it's not their responsibility. [00:12:07] Speaker 05: It should be your responsibility to speak with one voice when you're negotiating. [00:12:12] Speaker 04: So sure, but a position can change. [00:12:14] Speaker 04: And so after, you know, the first impact declaration was about, I think, eight months into the negotiations. [00:12:18] Speaker 04: Now we're about 13 to 14 months in. [00:12:22] Speaker 04: It has been a protracted negotiation. [00:12:24] Speaker 04: And there is nothing here to suggest, this is important, I believe, that there's nothing here to suggest that the union was actually confused about whether the last offer was a last best final legitimate offer. [00:12:36] Speaker 04: It actually, the union reached out on May 1st, the date of implementation said, Hey, can you guys hold off on implementing the offer? [00:12:44] Speaker 04: So the record reflects that the union understood this was going to be implemented and it had an obligation at that point to respond. [00:12:51] Speaker 04: There's nothing here to suggest that the union was confused. [00:12:53] Speaker 04: And that's why it didn't respond or didn't engage with the last best and final on March 30th. [00:12:59] Speaker 04: So I think that's very important, because the union could have reached out to test this, and I'm not saying that it's the union's obligation necessarily, but the evidence shows that there was no confusion. [00:13:10] Speaker 04: So any contrary finding that it detracted from the legitimacy of HRD's ability to issue a final offer? [00:13:17] Speaker 04: So their response was, let's have a face-to-face mediation. [00:13:21] Speaker 05: And you're saying, well, that's impossible. [00:13:23] Speaker 05: But at that time, it wasn't clear how long [00:13:27] Speaker 05: pandemic was going to last because we're talking March 30th. [00:13:30] Speaker 05: This is early days of the pandemic. [00:13:31] Speaker 05: So that doesn't seem to be a dilatory tactic. [00:13:34] Speaker 05: It doesn't seem to be an unreasonable position to take in that moment. [00:13:37] Speaker 05: Like in retrospect, it's like, well, yeah, we're talking a long pandemic. [00:13:41] Speaker 05: But back then, they didn't know that. [00:13:43] Speaker 04: Sure. [00:13:43] Speaker 04: So we're not contesting the fact that the union might have at some point thought the pandemic would only last a couple of weeks. [00:13:51] Speaker 04: What we are contesting here is on the evidence in this case that... But they don't think it's over. [00:13:55] Speaker 04: They want to continue mediating. [00:13:56] Speaker 04: They don't want to continue meeting because we've repeated... They asked for face-to-face mediation. [00:14:00] Speaker 04: They asked they they didn't ask for they insisted that any further mediation meetings that occur I want to keep talking. [00:14:08] Speaker 04: They don't want to keep talking because we so respectfully we disagree that the record reflects that every time that we reached out said we are more than happy to meet with the federal mediator. [00:14:17] Speaker 04: by the way something that HRD initially suggested and the union declined to accept the offer to mediate with a federal mediator. [00:14:24] Speaker 00: This still comes down to deference to the board's findings and what those findings were particularly stated on the record you know with respect to the negotiations so how can you get us away from that? [00:14:37] Speaker 04: So the correct theory, this is a differential. [00:14:40] Speaker 04: Generally impasse is a deferential issue, but this court clearly in its jurisprudence does not rubber stamp any impasse decision and does consider the record as a whole. [00:14:49] Speaker 04: Our position here is not that there's a credibility finding that we're disputing. [00:14:53] Speaker 00: So we're not saying just agree to mediation, just not in-person mediation. [00:14:57] Speaker 00: So that even moves the ball further to say it wasn't at an impasse. [00:15:02] Speaker 04: So the fact that we continually left the door open for the union to break the impasse, that should not go against HRD. [00:15:10] Speaker 04: Clearly, impasse, again, is a moment in time. [00:15:12] Speaker 04: It is a deadlock that is intended to be broken. [00:15:16] Speaker 04: It's meant to be broken. [00:15:17] Speaker 04: That's the whole point. [00:15:17] Speaker 04: We want parties to reach agreement. [00:15:19] Speaker 00: The impasse exists where the parties have reached the end of their rope. [00:15:23] Speaker 00: And if you're leaving the door open, you're not done. [00:15:26] Speaker 04: The record and I would ask that the court review the record site specifically in the reply brief on this. [00:15:32] Speaker 04: The record is clear. [00:15:34] Speaker 04: We communicated. [00:15:35] Speaker 04: We are at the end of our rope on wages. [00:15:37] Speaker 04: We have rejected multiple, multiple times when the union has proposed something healthcare dealt with. [00:15:43] Speaker 00: Were you done there? [00:15:45] Speaker 04: So towards the end, there was a potential agreement on moving to HRD's healthcare. [00:15:51] Speaker 04: But the main sticking point, the wages, the something that has communicated as one of the most important issues in this entire negotiation from the very beginning, there was no further room on that. [00:16:01] Speaker 04: And just because the union says, yes, we will continue negotiating or there is further room, that alone cannot defeat impasse because. [00:16:09] Speaker 05: So can we just review what happened on March 30th? [00:16:12] Speaker 05: You proposed a four-year contract. [00:16:14] Speaker 05: That was the first time you'd gone to four. [00:16:15] Speaker 05: You said the employee should switch to Blue Cross BCBS and receive a 1% wage increase in the second, third, and fourth years. [00:16:25] Speaker 05: So this is a new offer on wages because before you were only talking about a three-year contract. [00:16:29] Speaker 05: Now you're talking about a four-year contract. [00:16:32] Speaker 05: The union agrees to the four-year contract. [00:16:34] Speaker 05: They agree to switch to the BCPS, and they agree to a wage increase in the first year, and they propose an average wage increase of 2.5 in the last three years. [00:16:43] Speaker 05: So you still have to talk about that. [00:16:44] Speaker 05: But they're moving. [00:16:46] Speaker 05: And that is an overall lower wage increase than before because of the freeze in the first year. [00:16:51] Speaker 05: And then you say that's regressive. [00:16:56] Speaker 05: They disagree. [00:16:56] Speaker 05: But then they move again. [00:16:58] Speaker 05: They propose a 0.25 wage increase reduction for each of the contract years that they had proposed. [00:17:04] Speaker 05: This seems like a lot of back and forth and a lot of movement on both sides. [00:17:08] Speaker 05: So that's why I'm just really flummoxed by the idea that there's an impasse at this point. [00:17:14] Speaker 04: So I'm going to back up to the last counter proposal that happened, I believe it was March 10th. [00:17:22] Speaker 04: So the union's counter proposal was either that they stay on OPEC with no cost sharing with a pay freeze or that they move to HRD's plan with a 2% wage increase each year and it's retroactive. [00:17:35] Speaker 04: So the the general negotiations reflect a pattern of giving on one thing, insurance while regressing it or being unwilling to move. [00:17:46] Speaker 04: to HRD's final position on wages. [00:17:48] Speaker 04: And so then on March 30th, sure, HRD proposed that the new expiration date would be February, 2023. [00:17:56] Speaker 04: So again, it's not necessarily a four-year contract, it's to make it a prospective three-year agreement. [00:18:00] Speaker 04: Again, because we've been bargaining for 14 months here. [00:18:04] Speaker 04: So the union's counter proposal, it accepts the HRD health plan, but it offers wage increases of about 2.5% per year. [00:18:11] Speaker 05: But with a threes in the first year. [00:18:16] Speaker 05: the math was done and that was coming down on wages because of the freeze. [00:18:20] Speaker 04: So this is where we certainly disagree with the math being done because first of all the ALJ did some calculations and took testimony of understanding that was not laid out his calculations and [00:18:33] Speaker 05: they work and you don't have a counter calculation. [00:18:36] Speaker 04: So the ALJ is not permitted to sit judgment on the offer. [00:18:40] Speaker 04: And the only evidence in the record, and I can point you to that's JA 2175 to 81, is that HRD did its own analysis of the counter. [00:18:51] Speaker 04: And it did determine that it was regressive and that there was no further room for movement. [00:18:57] Speaker 05: But the ALJ's math is in the record [00:18:59] Speaker 05: and I looked at it and it works, and you're just saying, we have a contrary opinion without saying what that is. [00:19:05] Speaker 05: And again, this is a deferential standard of review. [00:19:08] Speaker 04: Again, the bottom line here is that HRD's position was that it was unwilling to move any further on wages. [00:19:17] Speaker 04: And concluding that- But on March 30th, you went to a four-year contract. [00:19:21] Speaker 05: which is a move on wages, and the union moved on wages. [00:19:26] Speaker 05: They changed their position to say, well, take a freeze in the first year, and then this increase in the latter years. [00:19:32] Speaker 05: And then they moved again and said, well, take a smaller increase in the latter years. [00:19:35] Speaker 05: How was that an impasse? [00:19:37] Speaker 04: So the impasse here is that we are still leagues away. [00:19:41] Speaker 04: So the impasse is you just haven't reached an agreement. [00:19:44] Speaker 04: The impasse is that despite communicating multiple times that we are no longer moving on wages, we were getting... But you moved on March 30th. [00:19:54] Speaker 04: And there was no... So I guess the point being is that the act does not compel agreement. [00:19:59] Speaker 04: It does not tell a party, it does not tell an employer that it must accept a concession on wages or what that... All we're trying to figure out is if there's an impasse, you're both at the end of your rope, there's a finding that you weren't and it's supported by the evidence. [00:20:13] Speaker 04: We disagree because at the end, it's at least two times higher than the ultimate position that we were willing to take on wages. [00:20:23] Speaker 04: And again, because there is no compulsion to reach agreement, HRD's final offer should be credited. [00:20:31] Speaker 04: It should be allowed to draw. [00:20:34] Speaker 04: You're asking us to make a credibility fund? [00:20:35] Speaker 04: No, we are not. [00:20:36] Speaker 04: Then why are you saying that? [00:20:38] Speaker 04: Because that's effectively what happened at the board. [00:20:41] Speaker 04: So the board effectively said that, [00:20:43] Speaker 04: HRD's final position couldn't be final because there was further movement to be made. [00:20:48] Speaker 04: But again, the union never represented what that movement could be. [00:20:53] Speaker 04: HRD expressly put forward, let us know if there's any further movement on wages. [00:20:58] Speaker 04: And the union never responded. [00:21:00] Speaker 04: It never had any indication of how the parties could reach agreement on wages. [00:21:06] Speaker 04: And that to us represents impasse. [00:21:10] Speaker 04: I see I'm over my time, but okay. [00:21:13] Speaker 04: nothing. [00:21:14] Speaker 03: Thank you. [00:21:16] Speaker 03: We'll give you two minutes on rebuttal. [00:21:17] Speaker 03: Yeah. [00:21:21] Speaker 03: Spirit. [00:21:23] Speaker 02: Good morning. [00:21:24] Speaker 02: My name is Heather Beard for the Labor Relations Board, and we seek enforcement of the board's order in full. [00:21:29] Speaker 02: I think the discussion just now demonstrates [00:21:32] Speaker 02: The board's position that substantial evidence supports its finding that the company didn't carry its burden of establishing impasse. [00:21:38] Speaker 02: Now, my colleague Hood River presents what is its alternative view of the record, but that is not something under the standard of review of this court. [00:21:46] Speaker 02: This court is compelled to accept. [00:21:48] Speaker 02: So I would boldly stand here and declare that the discussion between Judge Pan [00:21:55] Speaker 02: And my colleague, I would like to say that we agree with all of the points that Judge Pan was making in terms of all of those issues with regard to the impasse finding. [00:22:06] Speaker 02: I would like to circle back, if I may, to Judge Walker's initial question to my colleague about the length of the negotiations. [00:22:12] Speaker 02: I'd like to address that. [00:22:13] Speaker 02: So first, what I would say about that is the board itself recognized and in fact, a finding in terms of the support for the length of these negotiations was the fact that the company initially was asking a big ask. [00:22:26] Speaker 02: The company was saying we'd like to save a lot of money. [00:22:29] Speaker 02: Great. [00:22:30] Speaker 02: Fine. [00:22:30] Speaker 02: Nothing wrong with that. [00:22:32] Speaker 02: Okay. [00:22:32] Speaker 02: Because of that, what the board found is that protracted negotiations could be expected. [00:22:36] Speaker 02: An impasse finding is one where both parties exchange offers, move, move, and then determine whether or not they can have a contract at the end of the rope. [00:22:46] Speaker 02: This is exactly what happened here. [00:22:48] Speaker 02: So there is, in my view, there's a lot of cases with a lot of months and a lot of factors in impasse. [00:22:53] Speaker 02: That's the exact issue here, which is the board. [00:22:56] Speaker 03: My question, Ms. [00:22:58] Speaker 03: Beard, was are you aware of any cases where a court has concluded there was no valid impasse? [00:23:06] Speaker 03: when the parties negotiated for 14 months. [00:23:09] Speaker 02: I do not know as I stand here, unfortunately, however, I believe there are cases where there are similar months, like the length of negotiations has been long. [00:23:18] Speaker 02: There are many cases with that, but that's one of five factors. [00:23:21] Speaker 02: And this is not. [00:23:23] Speaker 02: So that's my answer to that question. [00:23:26] Speaker 03: There was September 27th, 2019 offer from Hood River. [00:23:32] Speaker 03: And there was a March 30th, 2020 offer. [00:23:37] Speaker 03: You're looking at like maybe you want me to describe the September offer. [00:23:40] Speaker 03: Do you know what? [00:23:41] Speaker 02: I know exactly what you're talking about. [00:23:43] Speaker 02: That's cool. [00:23:44] Speaker 03: What's the difference between those offers? [00:23:46] Speaker 02: Right. [00:23:46] Speaker 02: So on September 27th, the Hood River offer was not an offer for a three year. [00:23:54] Speaker 02: It was an offer for a three year, not a four. [00:23:56] Speaker 02: Are you asking March 10th? [00:23:57] Speaker 02: I'm sorry, or March 30th. [00:23:58] Speaker 02: Because I know that on March 30th, as Judge Pan was stating, they were saying we will do a wage freeze in the first year, but we will have a 1% increase in the back end on the last year of the contract. [00:24:09] Speaker 03: Sorry, can you say that a little slower? [00:24:11] Speaker 02: I apologize. [00:24:12] Speaker 02: So excited about this. [00:24:16] Speaker 03: Everyone left after the last argument. [00:24:17] Speaker 03: So they had known how exciting. [00:24:19] Speaker 02: I mean, impasse is the most exciting of all the labor. [00:24:23] Speaker 02: So on March 30th, negotiations were going on prior to March 30th and days and months were passing. [00:24:33] Speaker 02: So what the company was doing is saying, [00:24:35] Speaker 02: let's at the end of the contract, let's add on another year of the contract. [00:24:39] Speaker 02: And in response to that, we, the union had moved in that meeting to say, okay, that's fine. [00:24:46] Speaker 02: We'll, we'll give up our retroactive to the date that the contract would have started offer. [00:24:51] Speaker 02: So that's, so the difference between September, the offer in September of 2019 was the company saying we will give you [00:24:59] Speaker 02: The last two years of the three-year contract will give you just a 1% increase and we're not going to give you retroactive to the date this contract would have started. [00:25:07] Speaker 02: So the wages were different in the offer of March 30th. [00:25:11] Speaker 02: The other thing that was different is that the union, okay, that's one other thing I need to emphasize here, whether or not Hood River thought it was at its end of its rope is not the end. [00:25:22] Speaker 02: to torture that metaphor. [00:25:24] Speaker 02: It's not the end of the discussion. [00:25:25] Speaker 02: There has to be a contemporaneous understanding of the parties. [00:25:29] Speaker 02: And the union was not ever at the end of this rope, is what this demonstrates. [00:25:33] Speaker 02: But nonetheless, the offer that HRD made was different in terms of wages. [00:25:37] Speaker 02: And the union had moved to, by March 30, say, OK, [00:25:41] Speaker 02: We'll give up our great health insurance plan and we'll move to HRD. [00:25:46] Speaker 02: And what the board recognized is in that move. [00:25:48] Speaker 03: I just want to make sure I have the answer to the question, which is the only difference between the September 27th through the 19th offer and the March 30th, 2020 offer was this kind of three-year versus four-year retroactive date issue. [00:26:03] Speaker 02: There also was in the union access, there are two other issues besides wages and pension. [00:26:09] Speaker 02: There was a union access policy when the union comes on to the plant and they're not also employees, how many hours do they have to give in terms of notice that they're there? [00:26:20] Speaker 02: And at one point HRD, and I believe it was between September and March, that HRD gave up one of the things it was asking for, which was we want you to have to have 24 hour access. [00:26:31] Speaker 02: There was some movement there that HRD [00:26:33] Speaker 02: gave up the 24 hour access. [00:26:35] Speaker 03: That seems pretty on the margins. [00:26:37] Speaker 02: Well, that was one that you asked me the difference. [00:26:39] Speaker 03: I want a complete answer. [00:26:41] Speaker 05: The now follow up question is and that I just I think a big change to wasn't it? [00:26:48] Speaker 05: September was where they decided they're switching to BCPS. [00:26:51] Speaker 05: That's thank you. [00:26:52] Speaker 05: Which is an important change. [00:26:54] Speaker 02: Yes, thank you Judge Pan. [00:26:55] Speaker 02: That was an important change because the switching to the HR plan does not [00:27:00] Speaker 02: Like as Judge Pant said, it doesn't include something significant, which is the healthcare change plan. [00:27:06] Speaker 02: And that took, that meant that the company was giving different benefits. [00:27:11] Speaker 02: And in fact, the union needed to give that sort of analysis, get a third party analysis and communicate it to its employees. [00:27:19] Speaker 02: Yeah, sure. [00:27:20] Speaker 03: So I just want to make sure there's the three year to four year change. [00:27:24] Speaker 03: There's this union access policy, and then there's a switch [00:27:30] Speaker 03: So after September 27, 2019, there was a switch from Blue Cross Blue Shield to Cigna. [00:27:37] Speaker 03: That's correct. [00:27:38] Speaker 05: From Cigna to Blue Cross. [00:27:40] Speaker 03: The other way around. [00:27:40] Speaker 03: Okay. [00:27:41] Speaker 03: And then what's the, you were maybe going to tell me one other? [00:27:45] Speaker 02: Yeah, there was a discrepancy throughout about language for the 401k plan. [00:27:51] Speaker 02: And the 401k plan was what was going to be the matching formula that the employer was going to do. [00:27:57] Speaker 02: And the contract previously had some language that the parties went back and forth over. [00:28:02] Speaker 02: Should we change the language? [00:28:03] Speaker 02: Is the language OK? [00:28:04] Speaker 02: Should it be 230? [00:28:05] Speaker 02: There were all sorts of arguments about that. [00:28:08] Speaker 02: And the thing that matters is that the March 30th offer, the company had a little asterisk next to it accepting the union's access policy and said, [00:28:18] Speaker 02: If you accept the union to access policy, we'll accept your 401k policy. [00:28:22] Speaker 02: So they were willing to exchange those two proposals. [00:28:25] Speaker 03: OK, then. [00:28:27] Speaker 03: New questions, but still somewhat fact related questions for you. [00:28:34] Speaker 03: You saying your brief that Hood River repeatedly labeled its offers final. [00:28:39] Speaker 03: You provide three dates November 1st, 14th and December 17th. [00:28:45] Speaker 02: Or December 14th. [00:28:47] Speaker 03: OK. [00:28:49] Speaker 03: A date in December? [00:28:51] Speaker 03: Yeah. [00:28:52] Speaker 03: As I read the ALJ's fact findings that were from by the board, all three of those dates refer to the same author. [00:28:57] Speaker 02: The September 27th author. [00:28:59] Speaker 03: That's correct. [00:29:00] Speaker 03: Great. [00:29:00] Speaker 03: And then grateful for your patience here. [00:29:03] Speaker 03: I just want to make sure I have the facts, all the facts right. [00:29:06] Speaker 03: In February 2019, Hood River suggested a mediator. [00:29:09] Speaker 03: Sorry, it's February 20th. [00:29:10] Speaker 03: I mean, February 2020. [00:29:13] Speaker 03: In February 2020, Hood River suggested a mediator. [00:29:16] Speaker 03: And at that point, [00:29:18] Speaker 03: the union said they didn't think the mediator was appropriate, right? [00:29:24] Speaker 03: Correct. [00:29:24] Speaker 03: Okay. [00:29:25] Speaker 03: Then the government, sorry, the government, that's the last case. [00:29:32] Speaker 02: What about the government? [00:29:34] Speaker 03: All three cases today. [00:29:37] Speaker 03: The governor's executive orders in March of 2020 about COVID. [00:29:43] Speaker 03: prevented an in-person meeting between Hood River, the union, and the mediator. [00:29:49] Speaker 03: That's correct, right? [00:29:51] Speaker 02: I would love to just say yes, but I'm going to say yes, but if you'll let me. [00:29:54] Speaker 02: Yes, but there is a discrepancy between when you say with the mediator, the union believed, and again, [00:30:02] Speaker 02: Important is what the union and the company believe that the mediator would have would agree to meet in person. [00:30:08] Speaker 02: But the company and their communications with the mediator believe that the mediator would not do that. [00:30:13] Speaker 02: So they they disagree. [00:30:14] Speaker 02: Parties disagree as to what the mediator would do. [00:30:17] Speaker 03: The governor would not. [00:30:18] Speaker 02: The governor's orders. [00:30:20] Speaker 02: Yes. [00:30:20] Speaker 02: In, you know, the governor's orders said at that point. [00:30:25] Speaker 02: At one point the governor's orders, like it was everywhere was changing 25 and so I'm not sure that that exact point if it was the 25 people in the same room and I would note that as we know, and it was in the fact hood river in its March 30 telephone meeting did have its. [00:30:41] Speaker 02: Um, principles in the same room, six feet apart in distance. [00:30:44] Speaker 02: So I don't want to quibble over that. [00:30:46] Speaker 03: There was just, I'm not asking what each side believed about the governor. [00:30:50] Speaker 03: I'm just asking you, right? [00:30:52] Speaker 02: I would say that the governor's orders, um, I I'm not sure. [00:30:56] Speaker 02: I'm going to say, I don't know. [00:30:57] Speaker 02: I don't know if the governor's orders strictly precluded any in-person meetings the way that maybe the union would have sent one person. [00:31:03] Speaker 02: They never agreed to do it without a mediator. [00:31:07] Speaker 03: The order prohibited in office as long as telework was possible. [00:31:12] Speaker 02: Right. [00:31:12] Speaker 02: I'm going to, I'm going to actually the ALJ said that. [00:31:15] Speaker 02: Yes. [00:31:15] Speaker 02: If that's what the ALJ said, then that's, and the board affirmed it. [00:31:18] Speaker 01: I'm going to go. [00:31:19] Speaker 02: No, I apologize. [00:31:20] Speaker 02: I do think though that shows that at the time people were trying their best in good faith to figure out what the orders meant and if they could do what they wanted to do within them. [00:31:28] Speaker 02: And I don't want to suggest being glib about how serious COVID was. [00:31:33] Speaker 03: Right now, I didn't take you to be risking that. [00:31:37] Speaker 03: In June 2019, the union proposed a 2.5% wage increase. [00:31:43] Speaker 03: Am I remembering that right? [00:31:44] Speaker 03: It might not be. [00:31:46] Speaker 01: Yeah, I think it was 2.5 in June. [00:31:49] Speaker 01: Give me one second. [00:31:58] Speaker 02: Yep, the union proposal after they gave their what if proposal, yes, they said if you were going to take the offer that was not going to be, well, actually they said, look, and the what if proposal will freeze wages and that's what they said in June and that was what was rejected. [00:32:23] Speaker 02: So I guess your question is what was their movement on June 25th? [00:32:27] Speaker 03: No, I'm eventually going to get to what was what was the movement after this, but I'm just trying to 20. [00:32:33] Speaker 03: Okay, I'm what they were saying in June. [00:32:36] Speaker 03: Yes, in June 20 about wages. [00:32:38] Speaker 02: Yes, June 24th. [00:32:40] Speaker 02: They made their third contract proposal, which they went from their original. [00:32:45] Speaker 02: The boom from 4% in the first contract year and 3% in the second and third contract years to a two and a half percent increase in each year of a three year contract with a first increase that would be retroactive to March 1st. [00:32:58] Speaker 03: Okay. [00:32:58] Speaker 03: And then I think nine months later, the union proposed a nearly identical offer. [00:33:05] Speaker 03: The only difference was that [00:33:08] Speaker 03: it was a 2.25% wage increase. [00:33:10] Speaker 02: Right, they moved a quarter reduction in that percentage. [00:33:13] Speaker 02: With the wage fees in the first year? [00:33:14] Speaker 02: Correct, yes. [00:33:16] Speaker 03: So those were the only differences? [00:33:19] Speaker 02: Those were the significant differences along with the change in the healthcare plan that the union agreed that it would switch to, which again opened up a lot of other, but I know you just want to stick to the fact questions. [00:33:29] Speaker 03: Well, no, I am trying to figure out. [00:33:31] Speaker 03: So the proposal [00:33:37] Speaker 03: from June 24th, 2019, fast forward to March 10th, 2020, those offers were, and maybe this is the same, I think it's the same question I asked. [00:33:51] Speaker 03: So, no, it's not, it's different. [00:33:55] Speaker 03: So those offers were nearly on the key issues, identical, except for, [00:34:04] Speaker 03: They gave up 0.25% on wages. [00:34:08] Speaker 03: And what else? [00:34:10] Speaker 05: And accepted a wage freeze in the first year. [00:34:11] Speaker 03: Accepted a wage freeze in the first year. [00:34:13] Speaker 05: Yes. [00:34:14] Speaker 03: OK. [00:34:17] Speaker 03: Then? [00:34:17] Speaker 05: And they switched their health care. [00:34:19] Speaker 05: They agreed to the health care. [00:34:22] Speaker 03: And they made concessions on health care. [00:34:26] Speaker 03: On the question of good faith and dilatory bargaining, the union [00:34:35] Speaker 03: Hood River made an October 4th request for availability. [00:34:38] Speaker 03: And that was not answered until December 11th. [00:34:43] Speaker 03: Is that correct? [00:34:45] Speaker 02: There were times like that where the union did not email the employer back right away and vice versa. [00:34:52] Speaker 02: However, those time gaps. [00:34:55] Speaker 02: What does that mean? [00:34:56] Speaker 02: There were times when the company didn't respond right away to the union either. [00:34:59] Speaker 03: So there were times where the company waited two months in a week. [00:35:03] Speaker 03: respond? [00:35:04] Speaker 02: No. [00:35:04] Speaker 03: Not available? [00:35:06] Speaker 02: No. [00:35:06] Speaker 02: Okay. [00:35:07] Speaker 02: The company, though, during that time knew that what the union was doing is trying to assess the health care plan and compare it. [00:35:14] Speaker 02: That's my next question. [00:35:15] Speaker 03: So not the first comparison, but the second health care plan comparison, which occurred after Hood River switched providers. [00:35:22] Speaker 03: Right. [00:35:23] Speaker 03: That took two months. [00:35:26] Speaker 03: My first question, that new plan was, would you say, [00:35:32] Speaker 03: materially identical to the old plan or materially different. [00:35:39] Speaker 02: I am not aware of whether it was material identical or not. [00:35:42] Speaker 02: I know that there was no finding, there was no evidence that the union delayed purposefully in getting that third party assessment. [00:35:50] Speaker 02: And in fact, I also know the union [00:35:52] Speaker 02: On March 30th, importantly, this answers one of the questions you were talking about with my colleague. [00:35:57] Speaker 02: The Union did say where its movement could be when the Union was asking and Hood River eventually was provided this after March 30th. [00:36:06] Speaker 02: They wanted to know the cost that would save Hood River to go to Blue Cross Blue Shield. [00:36:11] Speaker 02: And they wanted to know that because as the union bargaining agent testified, if there were significant cost savings to Hood River from the new health care plan, separate from what the benefits would be to the employees in a different way, those were things the union could consider in formulating its next wage offer. [00:36:27] Speaker 02: So for example, the company was not going to be saving a significant amount of money. [00:36:31] Speaker 02: The union may not have had in its wage offer something higher. [00:36:34] Speaker 03: I understand that a comparison between the two health plans would be important for the union's negotiating position. [00:36:41] Speaker 03: And I take you to have just said there was not a finding that the two months it took to run the comparison was unreasonable. [00:36:49] Speaker 03: I don't really see why it should take two months to compare two health plans, especially when I think federal employees only have three weeks during open enrollment to compare their health plans. [00:37:00] Speaker 03: And unlike the union, it's not our job to compare health plans. [00:37:04] Speaker 05: Is it correct that between December 4th and January 9th, it was the company that didn't get back to the union? [00:37:15] Speaker 02: There was not necessarily a two-and-a-half month, as you just described it, Judge Walker, but there were times the parties didn't get back. [00:37:23] Speaker 05: But that was a month that the company- The company, yes. [00:37:25] Speaker 05: Absolutely. [00:37:26] Speaker 05: From December 4th to January 9th. [00:37:29] Speaker 05: Yes. [00:37:30] Speaker 05: between June 24th and July 22nd, also, four week periods. [00:37:36] Speaker 03: I'm just saying, once the union had the two health plans to compare, how long did it take? [00:37:45] Speaker 02: Right. [00:37:45] Speaker 02: I think the first time when it had Cigna compared to OPEC, it took five weeks. [00:37:49] Speaker 02: And it took, I believe, as you said, two months for it to compare now. [00:37:53] Speaker 03: And I think that- And so that's my question on the second one, that it took them two months to compare. [00:37:58] Speaker 02: Why? [00:37:58] Speaker 02: Right. [00:38:00] Speaker 02: Because they wanted to not only make sure that the employees had comparable benefits to what they had under OPET, but they also had to check with their employees to see what their employees [00:38:10] Speaker 02: would accept before they could get back to the company. [00:38:12] Speaker 02: This was something that was thrust on them just then. [00:38:15] Speaker 02: And I would say, as a federal employee who looks at my health care benefits, sometimes it takes me longer to decide what to do. [00:38:21] Speaker 02: And I think that in this instance, because they had done a comparison of OPET to Cigna and then looking for, oh, now the company wants, instead of Cigna, to do Blue Cross, they took them some time. [00:38:32] Speaker 02: And I think the key, though, to this court's review role here is whether or not the view of the evidence is compelled here. [00:38:40] Speaker 02: that the union in some way was dilatory throughout these months. [00:38:44] Speaker 02: And that is just not what the record shows. [00:38:46] Speaker 03: I think that two months to compare two health plans and two months, October 4th, December 11th, just to respond to an email about availability strikes me as quite dilatory, nevermind requiring or insisting on an in-person meeting. [00:39:05] Speaker 03: when it could easily have been done by zoom and no one was allowed to meet in person. [00:39:11] Speaker 03: Strikes me is somewhat deletory, but would you say we are at an impasse? [00:39:19] Speaker 02: I would say we may be at a good faith impasse. [00:39:23] Speaker 02: We can break the impasse. [00:39:25] Speaker 02: Although this isn't a case about breaking any impasse when there wasn't one to begin with. [00:39:29] Speaker 03: So we asked my colleagues if they have additional [00:39:35] Speaker 01: Okay. [00:39:36] Speaker 03: Thank you. [00:39:37] Speaker 03: Very good. [00:39:43] Speaker 03: This Petrova will give you two minutes. [00:39:46] Speaker 04: Thank you. [00:39:47] Speaker 04: I'm gonna try to succinctly cover a couple of points. [00:39:49] Speaker 04: Um, so the first is on impasse. [00:39:53] Speaker 04: So to the extent we're not talking about exception to impasse, I did want to just highlight that this court held in Mike sells potato chip company [00:40:00] Speaker 04: that if an employer is firm during bargaining as to one or more of the essential issues in Judge Pan, I know your concept of how the position shifted slightly towards the end. [00:40:10] Speaker 04: But if an offer is consistent with and flows logically from a position of we're not going to increase wages past this 1%, then the union's failure to agree creates an impasse. [00:40:22] Speaker 04: And just the denial that impasse exists or some last minute movement under that case law is not enough to avoid impasse. [00:40:30] Speaker 04: Our position is that that's what we have in this case, because there is no dispute that despite 14 months of bargaining, the union never once offered a proposal that met both of the bottom lines that HRD had put forward on insurance and wages. [00:40:46] Speaker 04: And I just also want to bring this court's attention to other case law from this court, like TrueServe Corporation, where a finding of no impasse was not supported by substantial evidence in the record, where the parties bargained eight times over six weeks. [00:41:00] Speaker 04: And at the end, the union's wage demand was twice as high as what the employer was willing to do. [00:41:04] Speaker 04: And the union failed to explain how it had any further room for movement on that issue. [00:41:11] Speaker 04: And that's exactly what we have here in this case. [00:41:15] Speaker 04: I do want to address quickly the exception to impasse. [00:41:19] Speaker 04: I do think the delays are quite significant in this case. [00:41:22] Speaker 04: Again, my colleague here did not have a case to illustrate where someone who had bargained for 14 months and the rec reflects that affirmatively sought to repeatedly schedule bargaining was not an impasse or was not able to move forward with implementing a last final offer under an exception. [00:41:40] Speaker 04: So, just as a very concrete example of the delay on November 27 2019 the union received this healthcare comparison which took two more than two months to procure. [00:41:51] Speaker 04: It did not communicate this to HRD. [00:41:54] Speaker 04: And the first dates that the union offered for bargaining in response to HRD's efforts to again move forward bargaining were in late January. [00:42:02] Speaker 04: And when January didn't work out and we're not contesting it was nobody's fault for the January dates not working out. [00:42:09] Speaker 04: The union refused to schedule anything in February and instead only offer dates in March. [00:42:15] Speaker 04: That all, in conjunction with the long history of the case and these efforts to continuously put bargaining out further, that alone meets the exception to impasse. [00:42:28] Speaker 04: It should be sufficient to qualify as an exception to impasse. [00:42:34] Speaker 03: If you could wrap it up in the next couple seconds, please. [00:42:37] Speaker 04: Thank you, Your Honor. [00:42:39] Speaker 04: For all the reasons that we've already discussed, either because there was an impasse or the exception to impasse existed, we would ask that this court vacate the board's order. [00:42:47] Speaker 04: Thank you very much. [00:42:48] Speaker 03: Thank you for your argument.