[00:00:00] Speaker 00:
Base number twenty four dash thirteen forty six at out.

[00:00:04] Speaker 00:
Sanford of Montana, I think a subsidiary of women technologies, and they share versus national women relations board.

[00:00:12] Speaker 00:
Mr. Sun for the addition, Mr. Cantor for the respondent, Mr. Demery for the interview.

[00:00:18] Speaker 00:
Mr. Scully.

[00:00:21] Speaker 03:
Thank you, Your Honor.

[00:00:21] Speaker 03:
I may please the court.

[00:00:23] Speaker 03:
On August 10th, 2021, business manager George Bland, whose union represents a small group of employees at the incumbent local exchange carrier in and around Kalispell, Montana, sent an information request to John Bemis, the local manager.

[00:00:38] Speaker 03:
The information request sought information about non-bargaining union employees.

[00:00:43] Speaker 03:
It is undisputed that Mr. Bland did not say anything regarding why the non-unit information was relevant to his role as the representative.

[00:00:50] Speaker 03:
In fact, he testified that he had no reason to even suspect that non-unit employees were infringing on the jurisdiction of the employees he represented.

[00:00:59] Speaker 03:
It is undisputed that Mr. Bland said nothing about any contractual claim, any grievance, or any related issue.

[00:01:06] Speaker 03:
Mr. Bland said he just wanted to investigate.

[00:01:09] Speaker 03:
What you've seen in the briefing of this case is the government and the union's attempt to backfill and augment the simple interaction between Mr. Bland and Mr. Bemis.

[00:01:18] Speaker 03:
That effort began at the unfair labor practice trial in this case when counsel for the general counsel for the NLRB produced for the first time reported reasons for Mr. Bland's request.

[00:01:29] Speaker 03:
At the Unfair Labor Practice hearing, it was first disclosed that the information request at issue in this case was a form request based on internal communications from sister local IBEW unions, not even authored by Mr. Bland.

[00:01:44] Speaker 03:
Then the NLRB council introduced some old settled grievances unrelated to the interaction between Mr. Bland and Mr. Bemis.

[00:01:51] Speaker 03:
He suggested that those might provide a basis for Mr. Bland's request for non-unit information.

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On cross-examination, Mr. Bland denied that any of these newly introduced elements formed the basis of his request.

[00:02:04] Speaker 03:
It is undisputed he did not reference these things at the time.

[00:02:07] Speaker 03:
He didn't claim even that he had a suspicion that national techs were doing bargaining unit work.

[00:02:12] Speaker 03:
He denied, in fact, that he had such suspicion.

[00:02:16] Speaker 03:
When asked by the judge, he specifically denied hearing or seeing anything that would give rise to a reasonable suspicion that national technicians were performing bargaining unit work.

[00:02:26] Speaker 07:
Can I ask you a question?

[00:02:27] Speaker 07:
And this is just might be that I'm not an expert at NLRB matters.

[00:02:32] Speaker 07:
But is it correct that we can decide this case based on at any point was there reasonable belief or that it was relevant?

[00:02:43] Speaker 07:
Because it seems to me that there are sort of three different moments in time that seem to be at issue or that are discussed in the briefs.

[00:02:51] Speaker 07:
And it seems that if

[00:02:53] Speaker 07:
For example, we could just resolve this case based on a finding, could we not, that at the hearing there was sufficient evidence of relevance, that there was a reasonable belief that there was relevance, and that we don't have to consider sort of

[00:03:09] Speaker 07:
The first point in time, which was the contact or the second point of time, which was the phone call.

[00:03:14] Speaker 07:
I just, I just want to understand, like, is it that we have a menu of options that if we find that there's relevance at any of those points in time, then then that would be sufficient.

[00:03:26] Speaker 03:
Judge Pan, I think that the answer to that question was certainly is no under the precedence of this court as well as the NLRB, specifically this court's decision in New York and Presbyterian Hospital, which looked at the request as the reasons proffered at the time of the request.

[00:03:42] Speaker 03:
And if you consider the facts in this case, there is no reason that Mr. Bemis would have known about these interactions.

[00:03:48] Speaker 07:
But do we have to address that if we think that there's enough evidence at the time of the hearing?

[00:03:53] Speaker 07:
And I understand that there's a due process argument, but that seems to be forfeited.

[00:03:56] Speaker 03:
Well, Your Honor, I think we do have to address it because that's the time when the violation allegedly occurred.

[00:04:03] Speaker 03:
So Mr. Bemis at that point is in a position where he will violate or not violate section 85 of the National League Relations Act based on his response.

[00:04:12] Speaker 07:
Correct me if I'm wrong, because again, I'm not an expert in NLRB matters.

[00:04:14] Speaker 07:
I thought that at the hearing, they were addressing this question as to whether or not

[00:04:19] Speaker 07:
At the time that the request was made, it was relevant.

[00:04:22] Speaker 07:
But at the hearing, they looked at additional evidence and a bunch of other stuff.

[00:04:28] Speaker 07:
And I understand you to be arguing it wouldn't be fair to bring in information that Bemis didn't even know about.

[00:04:37] Speaker 07:
But I think that there's precedent on point that says you're allowed to do that in an NLRB hearing, and you're not asking us to overturn that precedent, which is Conalton.

[00:04:47] Speaker 03:
Right.

[00:04:47] Speaker 03:
I'm not asking you to overturn any precedent, Your Honor.

[00:04:49] Speaker 03:
I think I'm saying that the precedent does not say what the government and the union claim it says.

[00:04:55] Speaker 03:
What those cases concern is they concern whether or not the union must actually prove relevance and that that proof could be adduced at the unfair labor practice hearing.

[00:05:03] Speaker 03:
This case involves a rare situation that has never been seen before the NLRB where the union agent did not articulate any kind of basis of relevance.

[00:05:12] Speaker 03:
When when pushed, he repeatedly said, I just want to investigate whether or not this is occurring.

[00:05:18] Speaker 07:
Correct.

[00:05:18] Speaker 07:
And so I think I would probably agree with that, that he didn't articulate it.

[00:05:22] Speaker 07:
But then it seems that.

[00:05:27] Speaker 07:
made statements that indicated that he knew that this was relevant based on the fact that non-union workers were in the jurisdiction working.

[00:05:37] Speaker 07:
And so I think that it is unusual in that I think they are relying on Bemis's statement to say that it was relevant as opposed to just Glantz's statement.

[00:05:47] Speaker 03:
Well, I think, Your Honor, what happened in this case was that there was a conversation that occurred, and there's a difference of opinion about what was said.

[00:05:54] Speaker 03:
It was clearly, it occurred after the request was made.

[00:05:58] Speaker 03:
So it couldn't have been a basis for Mr. Bland's request to begin with, and he didn't articulate it as a basis at any time thereafter.

[00:06:03] Speaker 07:
But that's one interaction, because it's the request and then the rejection.

[00:06:06] Speaker 07:
Look, the request and the rejection.

[00:06:08] Speaker 07:
And the rejection hadn't happened yet.

[00:06:11] Speaker 03:
Correct, but the time the conversation occurred, and I would say that there's nothing remarkable about national technicians being in the state of Montana, which is all that Mr. Beame has affirmed in his conversation.

[00:06:24] Speaker 03:
That is throughout the system, and that has nothing to do.

[00:06:29] Speaker 07:
And I understand that that's kind of disputed, and that's why I think it makes it trickier to sort of look at the facts at that point in time.

[00:06:37] Speaker 07:
And that's why I was asking, can we just affirm based on what happened at the hearing?

[00:06:43] Speaker 03:
I don't think you can.

[00:06:44] Speaker 03:
And I don't think it's consistent with this court's precedent to do that.

[00:06:47] Speaker 03:
How is it not?

[00:06:48] Speaker 03:
Because in New York Presbyterian Hospital, this court said specifically that we consider the reasons proffered by the union at the time of the request, relying on General Electric.

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And in General Electric, the Seventh Circuit clearly said that you can't rely on the circumstances presented at trial.

[00:07:05] Speaker 03:
And I think that that is- What was that case?

[00:07:08] Speaker 03:
The General Electric case was the case upon which New York and Presbyterian Hospital relied.

[00:07:13] Speaker 03:
New York and Presbyterian Hospital is 649, 533, 723.

[00:07:18] Speaker 04:
So Presbyterian Hospital didn't, well, did it involve the actual scenario here, like in the Piggly Wiggly case?

[00:07:30] Speaker 04:
I'm going to try to minimize the number of times I have to say that.

[00:07:35] Speaker 04:
where they really were trying to introduce evidence for the very first time because it didn't seem to me that in Presbyterian Hospital, we actually confronted and rejected that issue.

[00:07:47] Speaker 04:
And it does seem that the board's cases are pretty clear that this is permitted in terms of introducing the evidence for the first time at a hearing.

[00:07:54] Speaker 03:
If I may address that, Judge Garcia, that the piggly wiggly, sorry to say that again, and Kenilton clearly dealt with a situation where there were some facts on the ground that related to the allegation of an alter ego status.

[00:08:09] Speaker 03:
that there was something that the employer did.

[00:08:12] Speaker 03:
They had a, and the double rusting cases that the government relies on, the union relies on, there are always circumstances where the employer has done something and that that has given rise to an allegation or suspicion.

[00:08:25] Speaker 03:
sufficient to put the employer on notice that this could connect to the bargaining obligation, which of course makes sense.

[00:08:32] Speaker 03:
This case, there was absolutely nothing that occurred.

[00:08:35] Speaker 03:
That's not to concede the violation, but it's to say that there has to be something or else we've lost the distinction between presumptively relevant information and non-unit information because we're saying that Mr. Bemis

[00:08:49] Speaker 03:
has to regard a request like that as presumptively relevant and can't say what's the basis for that request.

[00:08:56] Speaker 05:
Even if the record shows that he was employed at the time these previous grievances were filed, in other words, you are not arguing that the owner of the company as an individual had to be aware of these previous grievances.

[00:09:18] Speaker 03:
Well, Judge Rogers, I think that two things about the grievances.

[00:09:22] Speaker 03:
Number one, they were settled.

[00:09:23] Speaker 03:
And there is not supported by substantial evidence that there was any prior diversion of work that is absolutely not supported by substantial evidence.

[00:09:31] Speaker 03:
But they were from a prior entity.

[00:09:34] Speaker 03:
So there was no recency as well.

[00:09:37] Speaker 03:
Those were three years old at least.

[00:09:40] Speaker 03:
There was nothing that would have put Mr. Bemis.

[00:09:42] Speaker 03:
And again, I had the good fortune of being trial counsel and getting to ask

[00:09:48] Speaker 03:
Mr. Bland, you know, was there anything, did you see anything?

[00:09:51] Speaker 03:
Did you, any of your memberships see it?

[00:09:53] Speaker 03:
The judge asked him.

[00:09:54] Speaker 03:
There was nothing that occurred.

[00:09:56] Speaker 03:
And that definitively distinguishes this case from other cases in which there are some facts upon which the bargaining agent relies to say, hey, we want to know more about that situation so that we can bargain.

[00:10:07] Speaker 05:
Your view is Mr. Bland's testimony could only be properly interpreted as a phishing expedition.

[00:10:16] Speaker 03:
That is what I would say, and that it destroys the distinction between, again, presumptively relevant, where bargaining employees have admittedly consented to the union getting information about them, about their whereabouts, about their job duties.

[00:10:29] Speaker 03:
Non-union employees have not exercised their Section 7 rights and impliedly authorized the union to ask for that information.

[00:10:36] Speaker 03:
And I think that that's what's lost.

[00:10:38] Speaker 03:
in this conversation about Hamilton and other cases is that there is this group of employees that haven't chosen the union as their representative.

[00:10:46] Speaker 03:
And their rights are being infringed upon by treating a request like this as presumptively relevant, which this court has instructed us not to do.

[00:10:55] Speaker 05:
How are their rights being impinged upon when the statute authorizes requests for information

[00:11:07] Speaker 05:
And whether the request is valid, legitimate, or what, is a completely different question.

[00:11:14] Speaker 05:
So there's no suggestion that Mr. Mimas was asking for something he was not authorized to ask for.

[00:11:23] Speaker 05:
But simply that, as I understand your argument, he had no reason to be concerned.

[00:11:32] Speaker 05:
And yet, as you point out,

[00:11:35] Speaker 05:
These non-union employees have been around for a long time.

[00:11:38] Speaker 05:
We've got these previous grievances, what were settled.

[00:11:44] Speaker 05:
I mean, I'm just trying to understand why Mr. Bland's inquiry has to be viewed as somehow, you know, suspect, if I can.

[00:12:00] Speaker 03:
I can address that, Your Honor.

[00:12:03] Speaker 03:
I think that the point is that the reason there is presumptive relevance is because a majority of employees have certified the union as its bargaining representative and thus empowered it to ask for information relevant to its duty to represent those employees.

[00:12:18] Speaker 03:
And there is no connection that the union agent has through that certification to the non-union employees.

[00:12:24] Speaker 03:
And in that sense,

[00:12:26] Speaker 03:
there is has to be a demonstration there has to be and all we're saying is there has to be an articulation of relevance and there has to be or there has to be evident facts and circumstances and in this case we have neither of those things we have we have we have no no facts on the ground can we can just focus on the the call and proceed as if that was basically the only fact so uh this is certainly not a slam dunk for the board but i'll do my best uh

[00:12:55] Speaker 04:
to say what I think is going on and give you a chance to respond.

[00:12:58] Speaker 04:
So I think it basically comes down to whether the call would give someone is a basis to think there might be work diversion occurring.

[00:13:08] Speaker 04:
And from the company's perspective, when Bemis says there are national technicians working in your general geographic area, that's not suspicious at all, because you know, apparently, that they've been there for a long time and they do different kinds of work.

[00:13:24] Speaker 04:
But

[00:13:25] Speaker 04:
Bemis didn't say any of that to Bland.

[00:13:27] Speaker 04:
So from Bland's perspective, the situation is, I represent a bargaining unit of this general type of technician.

[00:13:34] Speaker 04:
I just found out.

[00:13:36] Speaker 04:
It's news to me that now there's these other technicians in our area.

[00:13:41] Speaker 04:
I ought to look into it.

[00:13:43] Speaker 04:
And again, not a slam dunk, but why is that not a reasonable view of the evidence?

[00:13:49] Speaker 03:
Your Honor, because there are all manner of people employed by this company working all over the state of Montana, both in the incumbent local exchange carrier, their managers, their supervisors, their people of all stripes who are working there.

[00:14:04] Speaker 03:
The fact that they're merely working in the geographic area.

[00:14:08] Speaker 03:
gives no rise to no suspicion with respect to any infringement on the bargaining unit work.

[00:14:13] Speaker 03:
And I think that by identifying that, and I would also challenge the point that Mr. Blam was unaware on cross-examination, he acknowledged not only another IBEW Local 206,

[00:14:24] Speaker 03:
which is a separate jurisdiction as well he indicated the previous employer century link had national technicians and he acknowledged that in his cross-examination so I don't think it's accurate to say that he didn't acknowledge that but even if we accept that there are these other employees

[00:14:41] Speaker 03:
managers, supervisors outside the bargaining unit who are performing tasks in the geographic area and without something to give rise to any kind of suspicion that that individual can articulate, it is simply improper under this court's precedent to impose a duty to provide information.

[00:15:00] Speaker 05:
Thank you.

[00:15:02] Speaker 06:
Do you have any other questions?

[00:15:06] Speaker 06:
Thank you.

[00:15:19] Speaker 02:
May it please the court, Jared Cantor on behalf of the National Labor Relations Board.

[00:15:25] Speaker 02:
Your honors, I want to make two points that I think will help.

[00:15:27] Speaker 02:
First, there seems to have been agreement that the controlling standard here is a liberal relevance type standard, which requires a mere probability of relevance.

[00:15:39] Speaker 02:
Second,

[00:15:43] Speaker 02:
Essentially, in plain English, the question here is, for the board's first analysis, did the union, and this is language coming from the New York Presbyterian, did the union explain why it was asking for this information?

[00:15:57] Speaker 02:
And when you look at how the court talked about this in US testing, you're looking at, did the employer have notice of why this was being asked for?

[00:16:08] Speaker 02:
Was it adequately informed?

[00:16:11] Speaker 02:
And respectfully, under the deferential substantial evidence standard, I would submit that the board's primary analysis might be the most straightforward to enforce the borders on.

[00:16:21] Speaker 02:
What do you mean by primary analysis?

[00:16:23] Speaker 02:
So that was the board's analysis that the union established relevance upon making its request.

[00:16:30] Speaker 02:
That analysis talks about or relies on the request itself.

[00:16:35] Speaker 02:
And then the board talks about Bemis's admission.

[00:16:39] Speaker 02:
That conversation is sort of independently establishing the relevance of that request.

[00:16:45] Speaker 02:
And as Your Honor Judge Pan, I believe, talked about, the request is made and this phone call happens within hours, same day for certain.

[00:16:56] Speaker 02:
Bemis is not the one who refuses.

[00:16:59] Speaker 02:
He essentially just passes this along.

[00:17:01] Speaker 02:
It's not until

[00:17:04] Speaker 02:
September 1st, I believe, that you get, I want to make sure I'm accurate on that, September 1st, that Noble replies.

[00:17:14] Speaker 02:
She gives some information, she withholds others.

[00:17:16] Speaker 02:
That's where you essentially get the refusal to provide that information.

[00:17:21] Speaker 02:
And I think what's noticeable about both Bemis and Noble is Bemis clearly understands that there

[00:17:31] Speaker 02:
has a concern.

[00:17:32] Speaker 02:
What's going on here?

[00:17:33] Speaker 02:
He's not confused.

[00:17:34] Speaker 02:
He says in his testimony, there was no grievance pending, so this sort of caught my attention.

[00:17:41] Speaker 02:
What's going on here?

[00:17:44] Speaker 02:
Noble in her answer, September 1st, for the information she doesn't provide, her response is these national technicians are not in the unit and they're not performing bargaining unit work.

[00:17:55] Speaker 02:
So the company essentially

[00:17:58] Speaker 02:
is on notice that why is the union asking for this information?

[00:18:01] Speaker 04:
This would not be trying to think of... Can I ask, I just want to understand as a threshold matter, what do you think the rule is?

[00:18:09] Speaker 04:
Imagine a case where this union had no indication whatsoever that work diversion wasn't correct.

[00:18:18] Speaker 02:
In its jurisdiction?

[00:18:19] Speaker 02:
Or anywhere?

[00:18:21] Speaker 02:
It would affect it.

[00:18:23] Speaker 04:
And they asked these questions.

[00:18:25] Speaker 04:
The company would not be required to respond, right?

[00:18:28] Speaker 04:
There needs to be some, maybe very minimal, but a basis to think that it's relevant to their union.

[00:18:36] Speaker 02:
Well, I think, Your Honor, potentially, but

[00:18:42] Speaker 02:
The facts here obviously show these Telecommunication Council reports.

[00:18:47] Speaker 02:
Well, you said potentially, right?

[00:18:49] Speaker 04:
Potentially, because... I just want to... Right.

[00:18:51] Speaker 04:
I think it has to be yes.

[00:18:53] Speaker 04:
You cannot...

[00:18:55] Speaker 04:
We heard that there was work diversion in Texas.

[00:18:58] Speaker 04:
Now, every single one of our locals is going to ask for information to find out if it's happening in their jurisdiction.

[00:19:08] Speaker 04:
Well, it was three reports, Your Honor.

[00:19:09] Speaker 04:
No, I'm not talking about the facts of the case.

[00:19:11] Speaker 04:
I'm saying you would agree with the general principle you cannot embark on a fishing expedition just because

[00:19:18] Speaker 04:
If you did uncover something, it would be relevant to enforcing your CBA.

[00:19:22] Speaker 04:
There needs to be some, like, minimal basis to be asking the question.

[00:19:26] Speaker 02:
Yes, Your Honor.

[00:19:26] Speaker 02:
I mean, essentially, it's thinking about hypotheticals and the going hand-in-hand.

[00:19:31] Speaker 02:
The union... Well, I don't want to wait.

[00:19:32] Speaker 04:
Yeah, sorry.

[00:19:33] Speaker 04:
I don't want to go down that path.

[00:19:34] Speaker 04:
So then let's go directly to the call.

[00:19:37] Speaker 04:
OK.

[00:19:37] Speaker 04:
The company's argument is there's just nothing suspicious about saying technicians are working in this area of Montana.

[00:19:45] Speaker 04:
There's all kinds of...

[00:19:46] Speaker 04:
technicians and other types of employees that have always been working there.

[00:19:49] Speaker 04:
What's the cause for suspicion?

[00:19:51] Speaker 04:
And that does strike me as the key question in the case.

[00:19:53] Speaker 04:
And could you just explain why?

[00:19:55] Speaker 02:
Sure, Your Honor.

[00:19:56] Speaker 02:
As Bland testifies that he had been in one form or another a union official for 13 years, he had never heard this term national technicians until the Telecommunications Council put it on his radar.

[00:20:10] Speaker 02:
Then during this phone call, he asked Bemis, are there any national technicians working in my jurisdiction?

[00:20:16] Speaker 02:
And the credited, and the company doesn't really challenge the board's credibility resolution here,

[00:20:22] Speaker 02:
Or at least acknowledge the standard.

[00:20:24] Speaker 02:
Bemis then says a couple, so a couple of texts have been in your jurisdiction.

[00:20:28] Speaker 02:
He says a few times, but not many.

[00:20:33] Speaker 02:
And that's essentially what he says is the extent of his knowledge.

[00:20:38] Speaker 04:
But I think the board was finding that he admitted there.

[00:20:41] Speaker 04:
It wasn't that.

[00:20:42] Speaker 04:
By in the jurisdiction, they were actually doing union work, right?

[00:20:45] Speaker 04:
He meant.

[00:20:47] Speaker 04:
the board thinks he meant at least they're working in your geographic area.

[00:20:52] Speaker 02:
Yes, because I think if his admission was taken as that kind of admission, the analysis would be quite different and you could have gone straight to, you know, pass go get your $200.

[00:21:05] Speaker 02:
There's a violation of the CBA.

[00:21:07] Speaker 02:
And I think that's

[00:21:08] Speaker 02:
Another important thing to remember in this area is that this is supposed to be an investigatory process.

[00:21:14] Speaker 02:
This is very, very early on.

[00:21:17] Speaker 02:
You are, I mean, when we talk about ACME talking about this is a discovery type standard.

[00:21:23] Speaker 02:
You're not necessarily going to get evidence with your first request that's going to be admitted at a trial.

[00:21:28] Speaker 02:
You're getting evidence that might lead you to further evidence

[00:21:31] Speaker 07:
So what's very odd to me is that we're trying to determine if the union has demonstrated a reasonable belief supported by objective evidence that the information is relevant, but we're relying on Bemis's response to the union request.

[00:21:45] Speaker 07:
And that's strange to me.

[00:21:46] Speaker 07:
And that's why it seems to me if we have the option of doing so,

[00:21:50] Speaker 07:
The most, I guess, efficient and strong way to resolve this case would be to go straight to the hearing and rely on all the evidence that was submitted there, because there we also have evidence about what caused Bland to make this request, which is that there

[00:22:07] Speaker 07:
there was information that this type of unauthorized work was happening in other jurisdictions with these national texts.

[00:22:15] Speaker 07:
Maybe it's happening in our jurisdiction, which gives him a reason to believe maybe there's a problem here.

[00:22:22] Speaker 07:
Why wouldn't we just rely on the hearing evidence if we're allowed to do that?

[00:22:27] Speaker 02:
I think that is another because there's more evidence at that point.

[00:22:31] Speaker 02:
Yes, your honor.

[00:22:31] Speaker 02:
There certainly is more evidence.

[00:22:33] Speaker 02:
And with regards to that standard about union need only demonstrate a reasonable belief supported by objective evidence.

[00:22:40] Speaker 02:
That's where you have to sort of understand how these things play out.

[00:22:44] Speaker 02:
That is the general counsel's burden in front of the board as part of litigating the case.

[00:22:49] Speaker 02:
The union doesn't litigate the case.

[00:22:51] Speaker 02:
They would understand that.

[00:22:52] Speaker 02:
So what it's so that quote, if you look at where that comes from, it comes from the board's Disneyland case.

[00:22:59] Speaker 02:
Really, what we're talking about there is that's what the general counsel had to show that the union

[00:23:04] Speaker 07:
But in making that showing, they're relying not just on what the union said or did, they're relying on the response to the union.

[00:23:11] Speaker 07:
If they're going to rely on Bemis's statement, Bemis doesn't work for the union.

[00:23:16] Speaker 07:
That's what's strange to me, that you can rely on what Bemis said to establish what the union believed.

[00:23:23] Speaker 02:
Well, it's not it.

[00:23:26] Speaker 02:
It just establishes the question of whether it goes to the relevance and it goes to I think that other thing I talked about was the company on notice of what they were asking for.

[00:23:38] Speaker 02:
I mean, if you think about a case where the request for information is this.

[00:23:42] Speaker 02:
Please provide century town please provide us the names of all employees in the state of Montana all of your employees in the state of Montana their position and their salary information that are in the union.

[00:23:55] Speaker 02:
The employer is going to say.

[00:23:59] Speaker 02:
What is this go to?

[00:24:01] Speaker 02:
You can imagine another hypothetical.

[00:24:03] Speaker 02:
The union writes a treatise explaining in detail why it wants certain information, but it wants to know the address of the CEO's vacation homes.

[00:24:14] Speaker 02:
They clearly communicated why they want that information, but the relevance probably is not going to be there.

[00:24:20] Speaker 02:
You sort of need that handoff.

[00:24:21] Speaker 02:
You need an explanation that puts the note employer on notice going back to U.S.

[00:24:26] Speaker 02:
testing as the employer on notice was adequately informed about why the union needs this information.

[00:24:33] Speaker 02:
And the request is extremely detailed and the cover email.

[00:24:36] Speaker 07:
So it's just interesting to me.

[00:24:39] Speaker 07:
why it is that there's sort of these choices of looking at what was relevant at different points in time when it must be the case that in every case you'll have the most evidence at the hearing because additional, you have this rule that additional new evidence can be presented at the hearing.

[00:24:57] Speaker 07:
It was done in this case.

[00:24:58] Speaker 07:
Why should we even look at the earlier points if we're allowed to look at the hearing evidence, which is the most evidence?

[00:25:04] Speaker 07:
It's always going to be the most evidence, is it not?

[00:25:06] Speaker 02:
It might not be, Your Honor, because a union, again, looking at the facts of this case, in their opening letter requesting the information, they could have said,

[00:25:17] Speaker 02:
We're submitting this because we've heard through the Telecommunications Council that in three other locals.

[00:25:24] Speaker 07:
But that's not in the hearing too.

[00:25:26] Speaker 07:
You're not going to not admit.

[00:25:27] Speaker 02:
Well, that wouldn't be new.

[00:25:28] Speaker 02:
It would have been part of.

[00:25:29] Speaker 07:
I'm not saying we learn only on new evidence.

[00:25:31] Speaker 07:
I'm saying just rely on all the evidence of all the hearing.

[00:25:34] Speaker 07:
You can do that in every case.

[00:25:36] Speaker 07:
I don't know why you would ever.

[00:25:38] Speaker 07:
go earlier because you have less evidence earlier.

[00:25:40] Speaker 02:
Well, I guess, Your Honor, it would only be the board's analysis would only be at the earlier time.

[00:25:45] Speaker 02:
Even though that evidence would have come in at the hearing, the board would be looking at, did the union explain relevance upon making its request?

[00:25:52] Speaker 02:
That's always sort of the default.

[00:25:53] Speaker 07:
Well, they have had to explain it, apparently, because you can have new evidence that wasn't even explained.

[00:25:58] Speaker 07:
Because in this case, they relied on evidence that Bland did not communicate to Bemis, that there's new evidence

[00:26:06] Speaker 02:
Well, that evidence comes in to show whether the unions relevance was based on a reasonable belief supported by objective evidence.

[00:26:13] Speaker 07:
Isn't that the whole question we're dealing with here?

[00:26:16] Speaker 07:
Yes, yes, but sometimes that evidence union might have understanding you because I'm asking you if you're trying to.

[00:26:24] Speaker 07:
answer this question that we're trying to answer in this case.

[00:26:26] Speaker 07:
Why would you ever not just go to the hearing evidence where you have all the evidence plus new evidence?

[00:26:32] Speaker 07:
You have the most evidence at that stage in the process.

[00:26:35] Speaker 07:
So I don't know why there are all these arguments about these prior points in time.

[00:26:40] Speaker 02:
Your Honor, I think it's only in this case because other evidence came out at the hearing.

[00:26:44] Speaker 02:
But in a case where no other evidence, again, those cases might not have been litigated.

[00:26:49] Speaker 04:
But in other cases where all the... Well, it's also because the dissenting board member and common sense would seem to suggest that it's a pretty odd rule to let you ambush the company with new evidence at the hearing, right?

[00:27:00] Speaker 05:
So I... Well, and this court has said we must address

[00:27:06] Speaker 05:
the dissenting position, the board must address the dissenting position.

[00:27:11] Speaker 05:
It's not frivolous or something like that.

[00:27:13] Speaker 05:
So the board did hear.

[00:27:15] Speaker 05:
So I thought that's why you were focusing on pre-hearing.

[00:27:19] Speaker 02:
No, Your Honor.

[00:27:23] Speaker 02:
And to Judge Garcia's point,

[00:27:27] Speaker 02:
What the Hertz standard is, is just when you're explaining the relevance of the information, you need to give some facts.

[00:27:35] Speaker 02:
That's what the Third Circuit said in Hertz, and it talks about this in its Kreuzer opinion.

[00:27:40] Speaker 02:
But even under Hertz, there's the apparent relevance.

[00:27:45] Speaker 02:
I don't want to want to call an exception, but Hertz is not just a set standard.

[00:27:49] Speaker 04:
This was my clarifying question.

[00:27:51] Speaker 04:
I just want to understand your position.

[00:27:53] Speaker 04:
Assume under board precedent that he had just asked these questions.

[00:27:57] Speaker 04:
He never gave any basis whatsoever.

[00:28:00] Speaker 04:
It all comes out at the hearing.

[00:28:02] Speaker 04:
Yes.

[00:28:02] Speaker 04:
Do you think that is permissible under the board's cases?

[00:28:05] Speaker 04:
Yes, that is permissible under the board's cases.

[00:28:07] Speaker 04:
Yes.

[00:28:08] Speaker 04:
That's what I understood.

[00:28:09] Speaker 04:
Yes.

[00:28:09] Speaker 04:
Could you briefly try to defend that rule?

[00:28:12] Speaker 04:
I know the first thing you would say is that it's forfeited, but if you put that aside, why in the world would we have a rule that encourages or even allows unions to hold back evidence and bring it up for the first time in a hearing?

[00:28:25] Speaker 02:
Well, Your Honor, I'll

[00:28:30] Speaker 02:
So to my knowledge, the board has, there's no, if the concern is due process, I'm not aware of a, because that's the argument.

[00:28:38] Speaker 04:
Statutory concern, why are we, ought to be an exchange of information.

[00:28:43] Speaker 04:
We could have not had this entire case if,

[00:28:47] Speaker 04:
Bland had just shared the information he had, and maybe the company would have agreed without going through a hearing and being labeled an NLRA violator.

[00:28:55] Speaker 04:
Just seems like a very odd way to run the railroad.

[00:28:58] Speaker 02:
Well, Your Honor, there might be a best practice, but reasons that come to mind why a union might, on the one hand, it could be that they might be getting information from an inside source.

[00:29:10] Speaker 02:
A supervisor or a manager is leaking information to them, and they don't want to reveal that.

[00:29:15] Speaker 02:
Also because the standards here are there's presumptively relevant information and then there's just everything else.

[00:29:23] Speaker 02:
It's not a dichotomy of presumptively relevant and not presumptively relevant that there's this big hurdle.

[00:29:30] Speaker 02:
So the standard is low, which is why there's never been a requirement that in explaining relevance, you support it with facts.

[00:29:39] Speaker 02:
Again, the Third Circuit took a different view in its Hertz decision.

[00:29:44] Speaker 02:
Another reason could be, again, I'm speculating, but to answer your honor's question, your information request, you put some facts in there.

[00:29:53] Speaker 02:
The employer is now going to want to start arguing with your facts.

[00:29:56] Speaker 02:
And the whole point of this is to be a mostly seamless, low bar to get information as part of your investigation.

[00:30:05] Speaker 02:
Because as was acknowledged, the union has a duty here to

[00:30:10] Speaker 02:
administer and police its bargaining agreements.

[00:30:14] Speaker 02:
And that duty is not theoretical.

[00:30:16] Speaker 02:
That duty is to its members.

[00:30:18] Speaker 02:
And one of its most important duties is to make sure that the employer is not siphoning off work in whole scale or just around the edges.

[00:30:26] Speaker 07:
More questions?

[00:30:28] Speaker 07:
I was just trying to listen to what he said.

[00:30:30] Speaker 07:
Do you have any more questions?

[00:30:32] Speaker 02:
I don't.

[00:30:32] Speaker 02:
If there are no further questions, the board rests on its brief.

[00:30:35] Speaker 02:
Thank you, Your Honor.

[00:30:41] Speaker 07:
Mr. Denver.

[00:30:50] Speaker 01:
Good morning, Your Honors, may it please the court, I'm Jacob Demery, I represent the union.

[00:30:55] Speaker 01:
I agree with everything counsel for the board said, but I'd like to emphasize that this is factually and legally a very simple case.

[00:31:03] Speaker 01:
The key question is whether the union first articulated a basis for its request, and second, whether it had any evidence to back that up.

[00:31:12] Speaker 01:
Here, on page 344 of the record, the union articulated the basis for its request.

[00:31:17] Speaker 01:
It said that it was requesting information regarding national texts in the union's jurisdiction.

[00:31:23] Speaker 01:
That's in the initial email to Century Teller conveying the request.

[00:31:28] Speaker 01:
Now, there was sufficient evidence at the time backing that request up.

[00:31:32] Speaker 01:
That's the telecommunications emails that, as we were discussing, were introduced at the hearing.

[00:31:37] Speaker 01:
But the union had those emails before it made the request.

[00:31:40] Speaker 01:
Those emails showed that in other jurisdictions, national techs may have been performing unit work.

[00:31:47] Speaker 01:
In any event, addressing some of Judge Pan's questions on why we would consider evidence after or introduced before the hearing or evidence that wasn't just introduced at the hearing, during that conversation between the union and Century Tell on August 10th, Century Tell, as it admits on its brief in page 19, it conceded that national texts were in the area.

[00:32:12] Speaker 01:
That's all that's required to establish relevance and that's all that's required to require sentry to help provide the information in this case.

[00:32:21] Speaker 07:
You mean geographically in the area versus in, I understand there's some confusion about jurisdiction, like geographical or doing the work, but you think just that would be sufficient just saying they're in the area geographically?

[00:32:33] Speaker 01:
Yes, I do, Your Honor.

[00:32:35] Speaker 01:
And just to clarify for jurisdiction, from the union standpoint, jurisdiction can either be geographical or geographical or can mean scope of work in terms of union class differences.

[00:32:46] Speaker 01:
And so the only meaning that actually makes sense here is geographical.

[00:32:50] Speaker 01:
Though, of course, it's a distinction without a difference here, because even if we assume area, the broad definition that CenturyTel describes, area means work that could be potentially occurring within

[00:33:02] Speaker 01:
the collective bargaining agreement could be potentially unit work.

[00:33:05] Speaker 07:
So if they're geographically there, does that implicate your collective bargaining agreement?

[00:33:10] Speaker 07:
I thought it had to be actually doing the work.

[00:33:12] Speaker 01:
So let me answer that question.

[00:33:14] Speaker 01:
Yes.

[00:33:15] Speaker 01:
So if they're, they would have to be performing unit work to violate the collective bargaining agreement.

[00:33:20] Speaker 01:
But here the standard is not whether they're actually violating the agreements, whether they may be, there's a potential violation of the collective bargaining agreement.

[00:33:28] Speaker 04:
What's the cause for suspicion?

[00:33:29] Speaker 04:
Just if their name has technician in it or something else.

[00:33:34] Speaker 01:
So Judge Garcia, the cause for suspicion is that there are these employees who perform work that overlaps with the union's work in the area.

[00:33:42] Speaker 01:
And so there's potential here that there is work diversion.

[00:33:45] Speaker 04:
But what's the basis for saying you thought their work overlapped?

[00:33:48] Speaker 01:
So that basis is in the Telecommunications Council emails where we have reports from other local unions explaining that.

[00:33:55] Speaker 04:
So unless we, if we don't look at the hearing evidence, I'm not saying that we won't.

[00:34:01] Speaker 04:
Was there a basis without that?

[00:34:03] Speaker 04:
evidence without the hearing-only evidence?

[00:34:06] Speaker 01:
Yes, Your Honor, because if we look to the initial email to sentry tell, it says requesting information about work that's occurring in a jurisdiction to investigate violations or potential violations of the collective bargaining agreement.

[00:34:19] Speaker 07:
And so in the conversation about that request to say that, yes, national techs are in the area, that is... Is that first email when it uses the word jurisdiction, does that mean geographical jurisdiction or does it mean doing the work that's encompassed by the collective bargaining agreement?

[00:34:33] Speaker 01:
Your Honor, as I understand the email plus the text of the information request together, that means work in the, that would be violated in the collective bargaining agreement.

[00:34:42] Speaker 01:
Again, it's not necessary to understand what jurisdiction means here.

[00:34:45] Speaker 01:
We can take the understanding, that's area.

[00:34:48] Speaker 01:
But in the context of a request for information to understand if there are potential violations of the collective bargaining agreement, that shows that that conversation is potential evidence of a possible violation.

[00:35:01] Speaker 01:
I'd like to emphasize that, actually, I see that my time's run.

[00:35:05] Speaker 01:
So if the court has any other questions, I'd be happy to answer them.

[00:35:09] Speaker 01:
But if not, I'd like to thank the court for its time.

[00:35:10] Speaker 05:
I'd like to hear what you were about to say.

[00:35:12] Speaker 01:
Sure, I can just very quickly touch on relevance.

[00:35:15] Speaker 01:
The standard here is whether there's some evidence showing a possible violation, not that there's an actual violation.

[00:35:21] Speaker 01:
So if in that conversation, there was an admission of actual unit work diversion, if jurisdiction had to mean unit work and there was no admission of that.

[00:35:30] Speaker 05:
Here's what I just wanted to ask you.

[00:35:32] Speaker 05:
You heard counsel petitioner basically saying a new employer

[00:35:40] Speaker 05:
although he's been there three years, and he says, I thought it was only two.

[00:35:43] Speaker 05:
In any event, no reason to suspect.

[00:35:48] Speaker 05:
And what I wanted to understand about this case is the nature of the work being done by the employees who are represented by the union such that it's not a question of what's happening elsewhere in other jurisdictions, but there is some potential overlap

[00:36:10] Speaker 05:
Or is it simply that the nature of the work that the employer wants accomplished includes both?

[00:36:21] Speaker 01:
So if I understand your question correctly, Judge Rogers, the work that the union technicians perform is both in the central office in Kalispell, Montana, all the way into customers' offices.

[00:36:34] Speaker 01:
So they'll work with the network.

[00:36:36] Speaker 01:
As it seems from the record, and again, part of the reason for this request is that we don't know what all these national techs are doing.

[00:36:42] Speaker 01:
It seems that the national techs are also performing work in customers' offices.

[00:36:46] Speaker 01:
and so if they're both doing that work that those national techs would be performing unit work and that would be a violation of the collective right.

[00:36:54] Speaker 05:
So who's in the building where you need a key?

[00:36:57] Speaker 01:
So the building that's referring to the central office in Kalispell so there are definitely union technicians in that building but it's not necessary that there are national techs in that building.

[00:37:07] Speaker 05:
But there may be.

[00:37:09] Speaker 01:
There may be.

[00:37:10] Speaker 01:
Yes, certainly.

[00:37:12] Speaker 05:
I'm just trying to understand is the complexity of what's going on such that it may not always be clear who's a union employee.

[00:37:22] Speaker 05:
Clear in the sense of somebody from the outside.

[00:37:26] Speaker 05:
A union employee versus a non-union employee.

[00:37:30] Speaker 05:
It has to be monitored.

[00:37:33] Speaker 01:
I think that's certainly true, Your Honor.

[00:37:36] Speaker 01:
From the customer's perspective, someone comes in wearing a Century Tell uniform or a Lumen uniform, it would not be clear who the union, if they're a unit employee or not.

[00:37:45] Speaker 01:
And from the union's perspective, working in the field, understanding and monitoring whether there are

[00:37:50] Speaker 01:
actually non-unit employees performing that unit work in the customer's premises is incredibly important.

[00:37:56] Speaker 01:
And so that underlies why this request is important and underlies why it's necessary to have this information to determine whether there should be a potential grievance or unfair labor practice charge.

[00:38:08] Speaker 07:
Thank you very much.

[00:38:08] Speaker 01:
Thank you, Your Honor.

[00:38:13] Speaker 07:
Mr. Scully, we'll give you one minute for rebuttal.

[00:38:18] Speaker 03:
Thank you, Your Honor.

[00:38:18] Speaker 03:
I just want to address a couple of points.

[00:38:20] Speaker 03:
The first is your question, Judge Pan, about why don't we just rely on the evidence at the trial?

[00:38:26] Speaker 03:
And the reason we don't is because we have a system, a regulatory scheme under the National Labor Relations Act where the union is the bargaining agent.

[00:38:33] Speaker 03:
The government is not the bargaining agent.

[00:38:35] Speaker 03:
The government doesn't get to augment the union's information request because it doesn't get to affect the bilateral duty to bargain in good faith.

[00:38:43] Speaker 03:
And in this case, what effectively the government tried to do is to backfill the union's articulated reason for the information, which wasn't there.

[00:38:52] Speaker 03:
I think what the record discloses is that Mr. Bland simply did what everyone else was doing, and he sent this information request along.

[00:39:00] Speaker 03:
And to Judge Rogers' point,

[00:39:02] Speaker 03:
when specifically asked about those very facts, have you seen anything?

[00:39:06] Speaker 03:
Do any of your members see anything?

[00:39:08] Speaker 03:
Has anyone seen?

[00:39:08] Speaker 03:
There's no record evidence of national technicians doing anything within the jurisdiction of the union.

[00:39:13] Speaker 03:
And we'd ask based on our briefing that the review be granted and the orders be denied enforcement.

[00:39:19] Speaker 03:
Can I ask one very specific question?

[00:39:22] Speaker 04:
I'll try to be brief.

[00:39:23] Speaker 04:
It concerns the subpoena issue.

[00:39:25] Speaker 04:
I just want to make sure I understand the nature of the prejudice.

[00:39:29] Speaker 04:
The confusion I have is that the subpoena seems to ask for the documents to be produced at 9 a.m.

[00:39:35] Speaker 04:
the day of the hearing, and the complaint is that they were produced during the hearing.

[00:39:39] Speaker 04:
And I just wanted to...

[00:39:41] Speaker 04:
Perhaps there is some prejudice to that intervening hours.

[00:39:44] Speaker 04:
But is that the nature of the prejudice, or am I misunderstanding?

[00:39:47] Speaker 03:
Well, the rule that the NLRB applies is a sanction against introduction of evidence that is not produced pursuant to the subpoena, which was what I was attempting to invoke to bar that and say that those documents are what you now purport are the articulation of relevance.

[00:40:05] Speaker 03:
Why weren't they produced in response to the subpoena?

[00:40:08] Speaker 03:
OK.

[00:40:08] Speaker 03:
And so I was asking the judge to exclude the evidence.

[00:40:12] Speaker 03:
I see.

[00:40:12] Speaker 07:
Thank you very much.

[00:40:13] Speaker 07:
Thank you very much submitted.