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Case number 23-1164 et al.

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Troy Grove, a division of Riverstone Group Inc.

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and Vermillion Quarry, a division of Riverstone Group Inc.

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petitioners versus National Labor Relations Board.

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Mr. Eggers for petitioner Troy Grove.

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Mr. Davidson for petitioner International Union of Operating Engineers, Local 150 AFL-CIO.

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Ms.

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Sheehy for the respondent.

[00:00:28] Speaker 05:
Mr. Eggers.

[00:00:30] Speaker 05:
Come speak to us.

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

[00:00:34] Speaker 03:
May it please the court, Arthur Eggers, on behalf of Petitioner Troy Grove and Vermillion Quarries, divisions of Riverstone.

[00:00:43] Speaker 03:
This case has to do with negotiations at the bargaining table.

[00:00:47] Speaker 03:
I represented Riverstone at the bargaining table.

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At the bargaining table, I said we were at impasse.

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I threatened to implement our final offer.

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After I said that, we did not implement our final offer.

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We did not make any unilateral changes with regard to wages, hours, terms, conditions of employment.

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We did not direct deal with employees.

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In fact, I was talking to the union representative at the bargaining table.

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We did not present a fiat accompli without an offer to bargain.

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We were bargaining.

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We continued bargaining after I made my statement.

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What Riverstone did is to maintain the status quo with regard to wages, hours, terms, conditions of employment.

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So there's no issue here about whether we, in fact, were at impasse.

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Had we implemented, that would have been the issue, because you can't implement without being at impasse.

[00:01:37] Speaker 03:
I'm sorry, but one of your arguments I thought was that there was an impasse.

[00:01:42] Speaker 03:
It certainly is.

[00:01:43] Speaker 03:
That's an even-if argument, Your Honor.

[00:01:45] Speaker 05:
I thought that was your strongest one, and it's not the most compelling opening on that argument to say, oh, we were still bargaining.

[00:01:55] Speaker 03:
Well, given what you've said, Your Honor, maybe I should advance that argument a bit higher on the list, but it was offered as an even if argument.

[00:02:03] Speaker 03:
We believe that correctly it should be analyzed as member Kaplan did.

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And what this should be analyzed as is what is the restriction with regard to us at the bargaining table

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Can we start with the impasse?

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Were we in fact at impasse?

[00:02:20] Speaker 03:
Yeah.

[00:02:21] Speaker 03:
Sure.

[00:02:21] Speaker 03:
Glad to, Your Honor.

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So what happened here is that bargaining started in 2016.

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The prior collective bargaining agreement required contribution to Midwest Operating Engineers Pension Fund.

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We went into bargaining with a proposal in the first meeting that would continue that contribution to that fund.

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Then things changed.

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We found out that this fund, which is mismanaged, it had set out to do its business in a way that had increased our withdrawal liability from $900,000 to $1.3 million, about $400,000 more, about 40% more.

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From that point forward, we proposed getting out of the fund.

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We would not agree to the fund in the new collective bargaining

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Then we fast forward for the purposes of this discussion to 2021.

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We're in a bargaining meeting.

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And I say to the union, will you accept a new contract without contribution to the fund?

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The union says no.

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The union asked me a question.

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Will I accept a new contract that has contribution to the fund?

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I say no.

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At that point, we have two positions that are polar opposites, diametrically opposed

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And at that point, we are impasse because of the fact that these are opposites.

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And so given what transpired, we were impasse because at that moment there was no reasonable likelihood that bargaining would get us to a resolution of the issue, the single critical issue under CalMAT that we were a part on.

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So we were in fact at impasse.

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And what happened, it's probably not in the record, but very puzzled by, just looking at the course of negotiations, I had that reaction.

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It seemed like that was an absolute showstopper for you, and the union was insisting on pension contributions, and that was gonna be that.

[00:04:37] Speaker 03:
then but it turns out that wasn't that and you kept making contributions and you're still making contributions not at all your honor what happened is that we won we got a new contract that does not have contribution to fund the union got to the point where it gave up and agreed to what we were proposing and we're not making contribution to the fund anymore that's what happened

[00:05:03] Speaker 01:
On the issue of impasse, so at the July 12th meeting, didn't Riverstone say that it was open to hearing counterproposals?

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Yes.

[00:05:16] Speaker 01:
On July 12th.

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So you were not at an impasse on July 12th?

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Yeah, I asked the question, are we at impasse?

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And they said no, and they said... And you agreed that you were not at impasse on July 12th?

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In my opinion, we were, but we didn't declare impasse then because they said they were going to try to come up with a counter proposal.

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They were going to try and think outside the box.

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And so we continue down with negotiations, Your Honor.

[00:05:42] Speaker 01:
Right.

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And then on, I guess, July 14th, the union asked for further information.

[00:05:50] Speaker 03:
Yes, Your Honor.

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So then you wouldn't have been at impasse at that point either.

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We did not declare impasse.

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I believe we've been at impasse for a long time, but we continued on with negotiations.

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We continue supplying information.

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We did not declare impasse at that time.

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That's correct, Your Honor.

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You don't have to declare an impasse, do you?

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No, we don't, but... You can just implement the disputed term.

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You can exactly correct, Your Honor, but the issue in this case, as I understand it,

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is did we declare impasse, which we did, and then is that declaration of impasse the equivalent of an unfair labor practice?

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That's the issue.

[00:06:33] Speaker 02:
Well, you have to be a fool as an employer after this decision if it stands to declare it.

[00:06:42] Speaker 03:
Well, I think fool understates it.

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I think maybe suicidal might better describe it.

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The effect of this decision is a disaster.

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The purpose of the National Labor Relations Act is industrial peace.

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That's to be achieved by employees joining unions, bargaining collectively and having collective bargaining agreements.

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That's what this law is about that the National Labor Relations Board is supposed to enforce.

[00:07:07] Speaker 01:
So why not seek reconsideration based on member Kaplan's dissent?

[00:07:12] Speaker 03:
Because what happened is that the board considered this issue and it would have been an effort and futility

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to go through that step, your honor, I think, I think that required for us to have jurisdiction over the issue under section 10 E, not after Loper bright, your honor.

[00:07:29] Speaker 01:
How does Loper bright intersect with that?

[00:07:31] Speaker 03:
Loper bright says that it is to the court to make an independent review of issues of law.

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And the issues that we're dealing with your issues of law, nothing can strip this court

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of what I would say is it's right and obligation to determine issues of law.

[00:07:48] Speaker 01:
I mean, of course we have an obligation to make determinations of law, but Congress can create statutory schemes of exhaustion that require parties to preserve issues before the agencies.

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And if a party fails to meet those requirements, we may not have jurisdiction over the issue.

[00:08:05] Speaker 03:
Yes, Your Honor, but in 10E, there's nothing that says there is a lack of jurisdiction if the requirements of 10E aren't met.

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What the board has set out to do is to try and take the position of the folks that are on the bench here today.

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They're trying to set up procedural hurdles that would prevent this court from deciding issues of law.

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I think that's absolutely wrong.

[00:08:28] Speaker 01:
Can I just ask you one thing that's not, what is the remedy that the petitioners here care about the most?

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Why are they're litigating this?

[00:08:39] Speaker 01:
Because the pension issue, as you say, has been resolved.

[00:08:41] Speaker 01:
Like what is the thing

[00:08:43] Speaker 01:
I mean, just as a practical matter that you most care about from this board's decision.

[00:08:47] Speaker 03:
As a person who bargains collected bargaining agreements, it is something that prevents me from doing my job.

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Something that says the board is now going to police what is said at the bargaining table.

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Not only a huge problem for me because I want to talk at the bargaining table, I want to say the thoughts that are in my mind.

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More importantly, that I list, I want to hear what the other side has to say, right, wrong or indifferent.

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Because whatever they tell me is going to give me some insight into the thoughts in their mind is going to tell me how they prioritize proposals, is going to tell me the resolve with regard to issues, and is going to tell me how I should try to present things to get a collective bargaining agreement.

[00:09:25] Speaker 03:
Maybe I'm personalizing this too much, but as a person,

[00:09:28] Speaker 01:
You're interested in the general principle of law, not in any particular remedy for this party.

[00:09:34] Speaker 03:
Well, certainly the remedy here is to do the right thing and to see to it that we're not found to have violated the act when we didn't.

[00:09:41] Speaker 03:
That's the issue I perhaps I was speaking to personally and not necessarily on behalf of my client with some of what I said, but certainly they're going to be bargaining collective bargaining agreements in the future.

[00:09:52] Speaker 03:
I think what I said about me personally is equally applicable to them.

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as a party that's going to be bargaining in the future.

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This decision is a disaster.

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It is directly contrary to the Nationally Relations Act.

[00:10:05] Speaker 03:
How we got to this point is maybe a matter of amazement to me.

[00:10:11] Speaker 03:
If I may speak briefly as, unless there's anything else with regard to the impasse issue, I could touch on the layoff issue.

[00:10:20] Speaker 03:
I'll give you a minute or two.

[00:10:22] Speaker 03:
Okay, so another issue.

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here is with regard to layoff.

[00:10:26] Speaker 03:
What happened is the two employees received temporary weather-related layoff notices.

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And the nature of the layoff notice is very important because what the board relies upon is the Print Fulfillment Services case.

[00:10:42] Speaker 03:
Very, very different, distinguishable, and in fact supports our position.

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In Print Fulfillment Services, the employees received notices of layoff.

[00:10:52] Speaker 05:
There was no layoff.

[00:10:54] Speaker 03:
There was no layoff.

[00:10:55] Speaker 03:
Good view, but there was a threat.

[00:10:57] Speaker 03:
But what kind?

[00:10:59] Speaker 05:
It seemed like as tightly connected as can be to the request to leave to monitor the election.

[00:11:07] Speaker 03:
But what was that, Your Honor, I think is critical.

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What that was was a temporary seasonal layoff notice that was rescinded before it took effect.

[00:11:16] Speaker 05:
What the right with the ULP standard is whether the employer is doing anything that could reasonably restrain.

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Interfere employee interfere with our course.

[00:11:29] Speaker 05:
Yeah, collective bargaining.

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So, I mean, you sort of threaten to fire someone and then take it back.

[00:11:37] Speaker 05:
I mean, there's still a pretty strong message conveyed.

[00:11:40] Speaker 03:
And that's print fulfillment services.

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That's what you just described, Your Honor, I believe to be print fulfillment services, the equivalent of capital punishment in the workplace.

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Kind of like killing someone.

[00:11:53] Speaker 05:
Our case, because- It's kind of like killing someone and like, you know, staged executions are a form of torture.

[00:12:00] Speaker 03:
But I would submit, Your Honor, this is very different.

[00:12:03] Speaker 03:
Even when you don't kill the person, right?

[00:12:06] Speaker 03:
Well, this isn't even an injury, much less a murder.

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This is a person

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who received a temporary seasonal layoff notice that was rescinded before it took effect.

[00:12:15] Speaker 03:
There was nothing in here about the people getting these notices based on work performance, like in print fulfillment services, something that would create a negative record for them.

[00:12:24] Speaker 03:
It's not that at all.

[00:12:25] Speaker 03:
If our case were print fulfillment services, we wouldn't be having this discussion, right?

[00:12:31] Speaker 03:
Okay, thank you.

[00:12:33] Speaker 05:
We'll give you a rebuttal.

[00:12:34] Speaker 05:
Thank you.

[00:12:35] Speaker 05:
Appreciate it.

[00:12:38] Speaker 05:
All right, next up is the Union.

[00:12:41] Speaker 05:
Mr. Davidson.

[00:12:48] Speaker 04:
Thank you, Your Honors.

[00:12:49] Speaker 04:
May it please the Court, my name is Steve Davidson and I represent the International Union of Operating Engineers Local 150 in this matter, which is before the Court, as you know, petition for review of a decision of the NLRB.

[00:13:03] Speaker 04:
The Labor Board got the decision absolutely correct on all fronts.

[00:13:08] Speaker 04:
Okay, but we dispute and we have an issue with some of the remedies that the board issued with respect to RiverSones violation of the 8A5 and also

[00:13:21] Speaker 04:
with respect to not ordering training.

[00:13:24] Speaker 04:
Riverstone made a bargaining proposal, as you just heard, attempting to get out of the pension plan.

[00:13:31] Speaker 04:
And what happened on July 12th was a complete charade of, well, because they had predetermined that they were not going to budge from this.

[00:13:38] Speaker 04:
They did not enter negotiations with any spirit of give and take, without any spirit of understanding or wanting to actually negotiate with them.

[00:13:47] Speaker 01:
Mr. Davidson, do you agree that the standard of review here is abuse of discretion?

[00:13:51] Speaker 01:
for the board's remedies?

[00:13:53] Speaker 01:
Yes.

[00:13:54] Speaker 01:
So can you just speak to why there was an abuse of discretion?

[00:13:57] Speaker 01:
Specifically?

[00:13:58] Speaker 04:
Specifically, yes.

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Because what Riverstone did on the 21st and what they did on July 12th was substantially similar.

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The board recognized that there was a violation on July 21st and issued an order to remedy that infraction, to remedy that violation.

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Riverstone's actions on the 12th were substantially similar.

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They refused to negotiate after we explained that there were issues on the table and after we explained that we were drafting a counter proposal or working on that.

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But instead, they just got up and left the table and refused to bargain on both the 12th and then on the 21st.

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And the board's decision itself is internally inconsistent because it ordered a remedy because it recognized the violation on the 21st

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That remedy should also apply to the 12th because it was the same action, it was the same activity from the 12th through the 21st.

[00:14:56] Speaker 04:
It was the same charade.

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They had no intention.

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And in fact, in Riverstone's brief in support of its exceptions, it states that they believed that they were at impasse on the 12th.

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So everything that was happening on the 12th and also the 21st, also on the 21st, within two hours after they left the bargaining,

[00:15:17] Speaker 04:
What they did is they filed a lawsuit in federal court claiming or alleging in part that we were at impasse.

[00:15:23] Speaker 04:
So everything that happened on 21st was happening on the 12th, virtually everything.

[00:15:28] Speaker 04:
And therefore, again, the board's remedy is inconsistent.

[00:15:31] Speaker 04:
So that's where they've abused their discretion by omitting a remedy they should have awarded for the activities on the 12th.

[00:15:38] Speaker 05:
Why do you call their position a charade?

[00:15:45] Speaker 05:
and they have a duty to bargain in good faith, but they don't have a duty to make any particular in session.

[00:15:55] Speaker 05:
So they come into the bargaining process and say, look, we'll talk about a lot of things.

[00:16:03] Speaker 05:
We're not going to talk about this million dollar withdrawal liability problem.

[00:16:09] Speaker 05:
That's just, you know,

[00:16:11] Speaker 05:
That's non-negotiable for us.

[00:16:13] Speaker 05:
We'll bargain about all the other stuff.

[00:16:15] Speaker 05:
That's their position.

[00:16:16] Speaker 05:
And they go through years of bargaining on all the other elements.

[00:16:20] Speaker 04:
Oh, I call it a charade because what they were doing on the 12th was that meeting on the 12th was more than three years after bargaining hiatus.

[00:16:30] Speaker 04:
So after three years of not bargaining, they come in at the table and disingenuously, sarcastically say- Same position.

[00:16:41] Speaker 05:
I mean, you know, there's that crescendo moment with the questions back and forth and we can't review the tone of voice.

[00:16:50] Speaker 05:
I get that.

[00:16:51] Speaker 05:
But the position they were taking seems consistent with the position they had been taking through the years and years of bargaining, which is we just can't go on in this pension fund.

[00:17:06] Speaker 04:
But there is an obligation to listen to the counter proposal

[00:17:10] Speaker 04:
understand the counter proposals and have a dialogue back and forth.

[00:17:14] Speaker 04:
They were predetermined.

[00:17:18] Speaker 04:
They were just going through the motions.

[00:17:20] Speaker 04:
They had no interest in bargaining anything.

[00:17:23] Speaker 04:
And they said, this is it.

[00:17:25] Speaker 04:
My way or the highway, we're leaving.

[00:17:28] Speaker 04:
We had wages on the table.

[00:17:29] Speaker 04:
We had health insurance contributions on the table.

[00:17:32] Speaker 04:
We had a mix of different other issues on the table.

[00:17:35] Speaker 04:
We were working on a counter proposal to address that proposal.

[00:17:39] Speaker 04:
And they said,

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So to bed, we're leaving.

[00:17:41] Speaker 04:
And that's where it was all a straight because they came into the meeting, knowing that they were going to leave, knowing that they were going to declare impasse no matter what we said.

[00:17:50] Speaker 04:
And in fact, as the board points out,

[00:17:54] Speaker 04:
And as the ALJ pointed out, there were at least twice where we actually agreed to their proposal.

[00:18:00] Speaker 04:
And then as the ALJ said, they moved the goalpost.

[00:18:03] Speaker 04:
So after we agreed with their proposal, they backtrack and say, oh wait, that's not good enough.

[00:18:08] Speaker 04:
We've got to lump something else on.

[00:18:09] Speaker 04:
So this is like, that's why I call this a complete charade of the 12th and the 21st.

[00:18:18] Speaker 05:
Okay, thank you.

[00:18:19] Speaker 05:
We'll give you a rebuttal.

[00:18:21] Speaker 05:
Thank you.

[00:18:23] Speaker 05:
We'll hear from the board.

[00:18:28] Speaker 06:
Good morning, Your Honor.

[00:18:30] Speaker 05:
Good morning.

[00:18:31] Speaker 06:
Yes, may it please the court, Barbara Sheehy for the National Labor Relations Board.

[00:18:35] Speaker 06:
I'm going to start with the threat of the unilateral implementation and the impasse issues because it seemed like we gained most traction with the panel on those issues.

[00:18:43] Speaker 06:
So first, I just want to address immediately the issue that this decision in order is somehow unprecedented and is a disaster and is going to upend all of collective bargaining.

[00:18:52] Speaker 06:
As we point out in the brief, and it's in the board decision and order, this wasn't new law.

[00:18:56] Speaker 05:
In fact, the board cites- That seems like an exaggeration, but can, just for my purposes, can you walk me through the impasse determination?

[00:19:09] Speaker 05:
I mean, there's certain really sort of basic facts that are-

[00:19:16] Speaker 05:
Awkward for the board.

[00:19:18] Speaker 05:
26 meetings.

[00:19:21] Speaker 05:
They're five years after the bargaining agreement has expired.

[00:19:26] Speaker 05:
They're three years into a strike.

[00:19:28] Speaker 06:
But no bargaining happens during that time, right?

[00:19:31] Speaker 06:
There's a complete bargaining hiatus for the three years.

[00:19:34] Speaker 05:
The consistent position of this company is the one thing we're going to insist on is getting out of this fund, which seems pretty reasonable under the circumstances.

[00:19:46] Speaker 05:
And that's their position.

[00:19:47] Speaker 06:
So, I think the issue is though, sorry.

[00:19:51] Speaker 05:
I mean, they just sort of never get past that.

[00:19:54] Speaker 05:
They come to July 12 after years and years and years, and one side says, will you accept a deal without a pension contribution?

[00:20:04] Speaker 05:
No.

[00:20:04] Speaker 05:
The other side says, will you accept a deal with?

[00:20:06] Speaker 05:
No.

[00:20:07] Speaker 06:
But then we know, as Judge Rao points out, other things happened after that.

[00:20:11] Speaker 06:
So we were very long, I think, on opposing counsel's presentation about what his view of what happened.

[00:20:15] Speaker 06:
But let's remember what's in the board's findings.

[00:20:17] Speaker 05:
Other things happen, which is Mr. Eggers says, sure, we'd be interested in

[00:20:24] Speaker 05:
Absolutely.

[00:20:25] Speaker 05:
A proposal that does not include.

[00:20:29] Speaker 06:
Right.

[00:20:29] Speaker 06:
And the union says, we're going to try to do that for you.

[00:20:32] Speaker 06:
So I think what we could look at as July 12 is more posturing than anything else.

[00:20:36] Speaker 06:
We won't accept an agreement with this.

[00:20:37] Speaker 06:
We won't accept it with this.

[00:20:38] Speaker 06:
And the union goes and caucuses, comes back and says, we're going to try again.

[00:20:42] Speaker 06:
And let's remember, historically, the union had on multiple occasions agreed to get out of the pension fund.

[00:20:50] Speaker 06:
They wanted more authority, though, on how employees

[00:20:53] Speaker 06:
could allocate their money into different funds.

[00:20:56] Speaker 06:
So it wasn't I don't I don't think it's fair to characterize this as the union was steadfast on we are staying in this pension fund hell or high water that I don't think was the case.

[00:21:06] Speaker 06:
I think the union was trying to leverage the position.

[00:21:08] Speaker 06:
It was clear the employer wanted to leave the pension fund.

[00:21:11] Speaker 06:
That is absolutely clear.

[00:21:13] Speaker 06:
what is absolutely clear and uncontested is that it was losing money, there was a big withdrawal liability, all of that.

[00:21:19] Speaker 06:
Everybody understands the employer wanted out, but the union doesn't necessarily say or what the union's actions conveyed wasn't that there wasn't room for movements.

[00:21:28] Speaker 06:
They do go back in the caucus, they submitted information request, the employer says we'll try to respond to that, they do respond to that before the July 21st meeting.

[00:21:38] Speaker 06:
I think there's an initial

[00:21:39] Speaker 06:
round of information that's given, but it's not fully complied with.

[00:21:42] Speaker 06:
And then you have, I think at that point, pure frustration out of the employer.

[00:21:47] Speaker 06:
Understandable, but still unlawful.

[00:21:49] Speaker 06:
Still unlawful to say when there are issues on the table, so if the employer wants to claim single issue impasse, setting aside the fact that there was still that outstanding information request.

[00:21:59] Speaker 06:
And the board law is very clear on this.

[00:22:01] Speaker 06:
If there's an outstanding information request, you cannot be at impasse.

[00:22:06] Speaker 06:
They don't accept to that.

[00:22:07] Speaker 06:
That can't be.

[00:22:08] Speaker 06:
it is then there will never be no that's not true it's if you look at circuit case law right mike sells potato chips or right saying that you can't strategically avoid impasse just by continuing to ask for information right so so here what you have here though is there's no so the board makes this fine and the board in its decision modifies the administrative law judge's decision and says on top of all the reasons that the alj did not find

[00:22:32] Speaker 06:
the parties at single issue impasse, or impasse in particular of the three-pronged test on the pension fund issue in particular, so just prom one, the board adds, on top of that there was an outstanding information request.

[00:22:45] Speaker 06:
Now, and then they cite a board law that says,

[00:22:48] Speaker 06:
You know, the standard is that if it's a valid request, the employer doesn't object to that.

[00:22:52] Speaker 06:
The employer doesn't take it to this court and object and say, actually, that information request, they do it in their reply brief, but not before.

[00:22:59] Speaker 06:
So this case is riddled with failures by the employer to raise its objections at the proper time.

[00:23:06] Speaker 06:
The board added the information request in its decision order, said, this is another basis to find that you were not at impasse.

[00:23:13] Speaker 06:
If the employer didn't like that, the employer should have filed a motion for reconsideration.

[00:23:17] Speaker 06:
Let me ask you about that.

[00:23:18] Speaker 01:
So here the board Sue Espante considers, for instance, the idea that issuing the layoff notices, right, is a violation.

[00:23:29] Speaker 01:
But then they say that Riverstone fails to preserve this issue.

[00:23:33] Speaker 01:
So I'm kind of wondering how these standards intersect.

[00:23:35] Speaker 01:
So for the board to Sue Espante raise an issue, the standard is you're only allowed to add new claims if the claim is closely related to the complaint and the issue is fully litigated.

[00:23:46] Speaker 01:
Sure.

[00:23:47] Speaker 01:
So if the board passes that standard in order to bring up a new issue, how does the petitioner here fail under Section 10E for failure to raise the issue?

[00:24:02] Speaker 01:
Because if it's been fully litigated,

[00:24:05] Speaker 01:
And if it's closely related to the claim, then how is there no jurisdiction under term?

[00:24:10] Speaker 01:
I mean, don't these standards, aren't these standards sort of two sides of the same coin?

[00:24:14] Speaker 06:
I don't think I would say that there are two sides of the same coin, although I will admit that it's sort of a sticky issue when the board has reversed the initial 8A3 violation, which is a discrimination-based violation.

[00:24:25] Speaker 06:
They say, that's not the one.

[00:24:27] Speaker 06:
We don't agree with it, administrative law judge.

[00:24:30] Speaker 06:
And instead, they go with a non-motive

[00:24:33] Speaker 06:
coercive interference, but it's a different legal analysis too.

[00:24:38] Speaker 06:
So I think what's, so the closely related is in the context of when the board is able to still decide an issue because there's a factual record and it was something that the parties fairly litigated.

[00:24:51] Speaker 06:
There weren't additional facts if the original complaint had alleged, this is sort of the theory I think, if the original complaint had alleged the issuance of these layoff notices,

[00:25:02] Speaker 06:
had the tendency to coerce or interfere with the exercise of Section 7 rights.

[00:25:06] Speaker 06:
If it had alleged that the employer wouldn't have put on a different case, then it did.

[00:25:11] Speaker 06:
That's the conclusion of we can still reach this issue.

[00:25:14] Speaker 06:
We think the employer and the general counsel, for that matter, put on all the evidence that they would have otherwise.

[00:25:20] Speaker 06:
But I don't think that relieves the employer of its obligation or any party,

[00:25:24] Speaker 06:
doesn't have to set to the employer any party of its obligation when the board Sue Espante acts, because oftentimes this is how the board is Sue Espante acting.

[00:25:32] Speaker 06:
They couldn't just find a violation out of thin air.

[00:25:36] Speaker 06:
It has to be something where it's either closely connected or otherwise you see sort of a different view of the record evidence.

[00:25:43] Speaker 01:
If it's closely connected and fully litigated, though, then how is it not preserved?

[00:25:48] Speaker 06:
Because they didn't object to the, they didn't file exceptions to, they filed exceptions related to the 8A3.

[00:25:55] Speaker 06:
And in this case, I'll admit that the- You see the problem.

[00:26:00] Speaker 06:
I do.

[00:26:00] Speaker 01:
And I think what's particularly difficult in this case- The board gets to just add things based on the standard, but then, you know, the petitioner, you know, the party that's being charged doesn't have the same

[00:26:12] Speaker 01:
It's not symmetrical.

[00:26:14] Speaker 06:
Right, no, but they certainly were on notice that the board changed the decision in order.

[00:26:21] Speaker 06:
They were on notice that their liability changed between what the administrative law judge found and what the board found.

[00:26:26] Speaker 06:
So I don't think it's an onerous burden for them to have filed a motion for reconsideration.

[00:26:31] Speaker 06:
But here's what I was trying to say, where I think in this case it gets

[00:26:35] Speaker 06:
a little more complicated be cut to sort of figure out, well, didn't they do enough when they objected to the 8A3 as opposed to the 8A1?

[00:26:44] Speaker 06:
And I think the problem here is fact bound to this case.

[00:26:48] Speaker 06:
I think there is still a fundamental misunderstanding on the part of the employer on what the analysis is for the board on the 8A1.

[00:26:55] Speaker 06:
meaning they continued to brief in this court the same things that they objected to when they filed their exceptions on the 83.

[00:27:04] Speaker 06:
So I so I think their brief looks quite honestly the same as it would if they're if they were only objecting to the 83.

[00:27:14] Speaker 06:
So I think that's creating some of the confusion that normally you would see if somebody properly preserved the 81

[00:27:19] Speaker 06:
and properly preserved the coercive conduct, you would see a different argument being launched.

[00:27:27] Speaker 06:
And then we would be in a different position and a better position, I think, for illustration purposes to say, this is why you can't do it.

[00:27:34] Speaker 06:
You didn't tell the board this.

[00:27:36] Speaker 06:
The fact is a little bit strange here in that they didn't change their argument.

[00:27:41] Speaker 06:
They still continue to maintain the proximity.

[00:27:44] Speaker 06:
It doesn't matter.

[00:27:46] Speaker 06:
That's an 83.

[00:27:47] Speaker 06:
That's an 83 argument.

[00:27:48] Speaker 01:
That's not the board's argument.

[00:27:49] Speaker 01:
The board's argument is that they couldn't really raise those issues unless they sought reconsideration.

[00:27:54] Speaker 01:
Right.

[00:27:54] Speaker 01:
No, and we still couldn't change their theory in a petition here.

[00:27:57] Speaker 06:
No, no, but I'm saying for illustration purposes and for just sort of coming up with this, that it's difficult to see why didn't they do enough.

[00:28:05] Speaker 06:
I think part of the reason that it's not clear in this case why they didn't already do enough is because their argument hasn't changed.

[00:28:12] Speaker 06:
So I think in the context so but the board's position remains the same whether you continue to advance these arguments underneath a three violation even though that's no longer the theory or you didn't properly preserve it and you didn't preserve the argument.

[00:28:25] Speaker 06:
And I think here relief that just issued out this court on Tuesday is is a little helpful in this with a court there.

[00:28:32] Speaker 06:
It's an unpublished decision.

[00:28:34] Speaker 06:
because they didn't break it in new ground or anything.

[00:28:36] Speaker 06:
But in that case, the court talks about challenging facts and making legal arguments matter.

[00:28:43] Speaker 06:
And it was specifically for the purposes of TENI.

[00:28:45] Speaker 06:
So I think that's what we have here.

[00:28:47] Speaker 06:
You have the employer basically objected to the facts, because they have the same underlying facts, but didn't make the legal argument.

[00:28:53] Speaker 06:
And again, it's not directly on point, but I think it's useful.

[00:28:56] Speaker 01:
The court has to come up with a new legal argument based on the fact that it's closely connected and fully litigated.

[00:29:02] Speaker 06:
Right, and all the board then is saying, if you still have an opportunity to tell the board, we think you got it wrong.

[00:29:08] Speaker 06:
We think you got it wrong.

[00:29:09] Speaker 06:
Here's why.

[00:29:10] Speaker 06:
File your motion for reconsideration.

[00:29:12] Speaker 06:
So just because the board has the opportunity to, in fact, what they did was they corrected.

[00:29:16] Speaker 06:
This is what we want, right?

[00:29:17] Speaker 06:
They corrected the administrative law judge, said this wasn't an 8.83, but you didn't look at this in the different context through a different lens of the 8.81.

[00:29:25] Speaker 06:
But employer, you have the opportunity to tell us why you still think we got it wrong.

[00:29:29] Speaker 06:
They didn't do that.

[00:29:31] Speaker 06:
And that precludes the court's jurisdiction.

[00:29:33] Speaker 06:
And Loper-Brite had no effect on this court's jurisdiction under Tenney.

[00:29:37] Speaker 06:
I don't think I'm over my time, unless there were other specific questions.

[00:29:45] Speaker 06:
We'd ask for full enforcement.

[00:29:48] Speaker 06:
I couldn't tell if you had a question, Judge Randolph.

[00:29:49] Speaker 06:
I thought you were taking your glasses off to ask them.

[00:29:52] Speaker 06:
Anyway, thank you.

[00:29:52] Speaker 06:
I appreciate it.

[00:29:53] Speaker 05:
Thank you.

[00:29:55] Speaker 05:
Rebuttal.

[00:29:56] Speaker 05:
Yes, Mr. Eggers.

[00:29:57] Speaker 05:
We'll give you two minutes.

[00:30:06] Speaker 03:
It's difficult to imagine any case that would be a more obvious case of impasse than this one.

[00:30:14] Speaker 03:
To the extent there was any uncertainty going to the meeting in July, when I asked the union if they would accept a new contract that did not have contribution to the fund, and they said no.

[00:30:25] Speaker 03:
And they asked me the question, would we accept a new contract that did have contributions to the fund?

[00:30:31] Speaker 03:
And we said no.

[00:30:33] Speaker 03:
Any uncertainty was at an end.

[00:30:35] Speaker 03:
That was definite.

[00:30:37] Speaker 03:
The comment by the intervener that there were other issues to bargain over, and the comment that was made then about, well, think outside the box, none of that negates the fact that we clearly were at impasse.

[00:30:51] Speaker 03:
If this court were to ever accept the argument that saying, think outside the box, or there are other issues to bargain over would somehow cause there not to be an impasse, I can assure this court, there'll never be an impasse.

[00:31:05] Speaker 03:
I would bet I'm not a betting man.

[00:31:07] Speaker 03:
I would bet every nickel that there will never be an impasse and that I agree with you completely, Judge.

[00:31:14] Speaker 03:
Thank you, Your Honor.

[00:31:15] Speaker 03:
Now, I would urge this court to set aside or modify what has happened here so that there is not a finding of any unfair labor practice by my client.

[00:31:24] Speaker 03:
Thank you.

[00:31:25] Speaker 05:
Thank you.

[00:31:27] Speaker 05:
Mr. Davidson, we'll give you two minutes.

[00:31:33] Speaker 04:
Thank you, Your Honor.

[00:31:34] Speaker 04:
Just very quickly, a few comments that Mr. Eggers has made throughout was he asked the question, we said no, we asked the question, they said.

[00:31:42] Speaker 04:
That is two seconds of a negotiation session.

[00:31:47] Speaker 04:
There were, after we said, after he asked that.

[00:31:51] Speaker 04:
My recollection is it was clear.

[00:31:53] Speaker 05:
I will take another look, but what I want to ask you is it's against this backdrop of years and years of

[00:32:02] Speaker 05:
parties being unable to bridge that issue?

[00:32:07] Speaker 04:
There was, yeah, numerous back and forth.

[00:32:09] Speaker 04:
And at that point in time on the 12th, we said, no, but, comma, but we're exploring it.

[00:32:16] Speaker 04:
We're looking into it.

[00:32:17] Speaker 04:
We send an information request.

[00:32:19] Speaker 04:
We're putting back a counterproposal.

[00:32:20] Speaker 04:
We will draft a counterproposal.

[00:32:22] Speaker 04:
And in fact, we did draft a counterproposal that the parties ultimately used to come to a final agreement.

[00:32:29] Speaker 04:
So with CalMAT, it's a three-part test.

[00:32:32] Speaker 04:
So we were not at impasse on this issue because we were drafting a counterproposal and we did draft a counterproposal.

[00:32:41] Speaker 04:
And secondly, is this a critical issue?

[00:32:43] Speaker 04:
The judge doesn't get to it.

[00:32:45] Speaker 04:
I'm not conceding that it is a critical issue.

[00:32:48] Speaker 04:
I mean, not every issue we bargain is critical.

[00:32:51] Speaker 04:
Is it important?

[00:32:51] Speaker 04:
Yes.

[00:32:52] Speaker 04:
Is it critical?

[00:32:52] Speaker 04:
They would say yes.

[00:32:53] Speaker 04:
It wasn't a critical issue.

[00:32:55] Speaker 04:
And in fact, we were able to bargain and come to a resolution.

[00:32:58] Speaker 04:
Number three, was it a breakdown of overall negotiations?

[00:33:01] Speaker 04:
Absolutely not.

[00:33:04] Speaker 04:
We hadn't even talked about wages.

[00:33:06] Speaker 04:
We hadn't talked about contributions to health insurance.

[00:33:08] Speaker 04:
It was not a breakdown of overall positions and proposals.

[00:33:14] Speaker 04:
So Mr. Eggers is taking one question, and that happens in negotiations.

[00:33:20] Speaker 04:
Are you willing to move on this?

[00:33:21] Speaker 04:
No.

[00:33:22] Speaker 04:
That doesn't mean you're an impasse.

[00:33:23] Speaker 04:
That's the give and take.

[00:33:25] Speaker 04:
But in his mind, in Riverstone's mind,

[00:33:28] Speaker 04:
What it meant was all I have to do is get him to say no once and I can leave the bargaining table and I don't care what they say.

[00:33:33] Speaker 04:
And that's exactly what he did on the 12th and on the 21st.

[00:33:36] Speaker 04:
I heard you say no, bye.

[00:33:38] Speaker 04:
That's how negotiations work.

[00:33:40] Speaker 04:
It was a threat as far as we had a union steward and another bargaining team.

[00:33:46] Speaker 04:
employee bargaining unit member at the bargaining table listening to this from the other side.

[00:33:53] Speaker 04:
So with that, we were not at impasse.

[00:33:57] Speaker 04:
Thank you, Your Honor.

[00:33:58] Speaker 05:
Thank you, Counsel.

[00:33:59] Speaker 04:
Thank you.

[00:34:00] Speaker 05:
The case is submitted.