[00:00:01] Speaker 03:
Good morning.

[00:00:02] Speaker 03:
Good morning.

[00:00:03] Speaker 03:
Maurice Baskin for Petitioner Semics.

[00:00:06] Speaker 03:
And I'd like to reserve three minutes for rebuttal.

[00:00:09] Speaker 03:
You have a sort of unusual argument set up here today.

[00:00:12] Speaker 01:
Yes, I understand.

[00:00:13] Speaker 03:
A triangular myth.

[00:00:15] Speaker 03:
But we're here today.

[00:00:15] Speaker 01:
Just remember to watch the clock.

[00:00:17] Speaker 03:
Yes.

[00:00:17] Speaker 03:
We're here today because the National Labor Relations Board improperly applied and then rejected altogether

[00:00:25] Speaker 03:
The Supreme Court's seminal Gissell case decided some 55 years ago, it's been applied by this circuit and all of the other circuits to hold that the board is not supposed to issue a bargaining order after an election where a majority of the employees have voted not to be represented.

[00:00:44] Speaker 03:
The board is not supposed to issue a bargaining order except as an extreme remedy.

[00:00:49] Speaker 03:
And even then, only if a fair rerun election is unlikely to be possible.

[00:00:53] Speaker 03:
Those findings in this case are totally inadequate to meet that standard, but then not satisfied and perhaps sensing that problem.

[00:01:03] Speaker 03:
With the case, the board has created out of whole cloth an entirely new standard for when bargaining can be ordered without the consent of the employees and one chance to discuss that too.

[00:01:14] Speaker 03:
We have all kinds of issues floating around in this case, including constitutional ones,

[00:01:18] Speaker 03:
I'm going to start with those because it's really at the core to this proceeding.

[00:01:24] Speaker 03:
So what do I mean when I say they failed to apply it?

[00:01:27] Speaker 03:
It really goes to what they did not acknowledge, although the administrative law judge did found that the unfair labor practices, as many as they claim there were, were not pervasive.

[00:01:39] Speaker 03:
They were not widely disseminated.

[00:01:40] Speaker 03:
And what's critical to understanding that, and the board really tries to pass it off as uneventful,

[00:01:46] Speaker 03:
is the extraordinarily spread out bargaining unit over hundreds of miles with individual stations, some 25, around California and Nevada, and no evidence, very little evidence anyway, sparse evidence I think was their word,

[00:02:05] Speaker 03:
for dissemination of unfair labor practices, which they've tried to say, well, look how many there were.

[00:02:11] Speaker 03:
They say there were dozens.

[00:02:13] Speaker 03:
But in fact, well over half, 20 at least by my count.

[00:02:18] Speaker 03:
It depends how you're counting these charges.

[00:02:21] Speaker 03:
But at least 20 are by low-level supervisors to one or two

[00:02:26] Speaker 03:
handful at most employees with no evidence.

[00:02:28] Speaker 05:
Council, we're reviewing the board's decision for an abuse of discretion, correct?

[00:02:33] Speaker 05:
Yes.

[00:02:35] Speaker 05:
And several of the found allegations related to threats that a plant might close and other things that were of a more serious variety.

[00:02:46] Speaker 05:
Why isn't that, why aren't those findings enough to support the board's determination that a bargaining order was required in this instance?

[00:02:56] Speaker 03:
Sure.

[00:02:57] Speaker 03:
Yes, good question, and next part of it, because once you take out of the equation

[00:03:03] Speaker 03:
the 20 plus charges that did not involve- So why don't you answer my question then?

[00:03:08] Speaker 03:
What about the- That's quite closing.

[00:03:10] Speaker 03:
The only evidence they have for that comes from a speech or a series of speeches given by the vice president, Forgy.

[00:03:19] Speaker 05:
And when you look closely... And from what I understand, what they found was that the same speech was given over 20 different locations, that it was high-level official, many different meetings.

[00:03:30] Speaker 03:
Right.

[00:03:30] Speaker 05:
So that doesn't seem like small dissemination.

[00:03:34] Speaker 05:
That seems pretty widespread, doesn't it?

[00:03:36] Speaker 03:
But with the understanding that there was, at those same meetings,

[00:03:39] Speaker 03:
and surrounding the meetings, they were giving out the board's own handbook guidance on what is allowed and what is not allowed in elections.

[00:03:48] Speaker 03:
They give a slideshow that was accurately depicting the material.

[00:03:52] Speaker 03:
My bottom line is that those allegations coming from the speech, speeches, they were not unfair labor practices in the first place.

[00:04:01] Speaker 03:
They were not threats of plant closings in the second place.

[00:04:05] Speaker 03:
Particularly, I would point you to the dissents, footnotes 34 and 39, I believe it covers them.

[00:04:12] Speaker 03:
When he's talking about his own experience, which he was and certain things, for example, about strikes,

[00:04:18] Speaker 03:
And in his experience, there was a seniority basis to it.

[00:04:22] Speaker 03:
Well, the law is pretty clear.

[00:04:24] Speaker 03:
When you're talking about your own experience, that's factual.

[00:04:26] Speaker 03:
It's free speech.

[00:04:28] Speaker 03:
Its employers have these speech rights also.

[00:04:30] Speaker 03:
It's not a threat.

[00:04:31] Speaker 03:
It's not a threat to say, and particularly how technical the distinction between permanent and temporary replacements is, surrounded by letters and slides putting it in the right context.

[00:04:46] Speaker 03:
These were not the kind of severe plant closing threats that people have enforced in the past.

[00:04:54] Speaker 03:
And I would point you to the Chatfield decision of this court in which it talked about there were statements that might result in plant closure, layoffs, loss or delay of plant raises and bonuses, harsher working conditions.

[00:05:07] Speaker 03:
And they said, yes, set aside the election and have a rerun, but no,

[00:05:11] Speaker 03:
to a bargaining order.

[00:05:13] Speaker 01:
Do you have a case that says if a threat of plant closure is accompanied by same speech or written materials that are compliant with the law, that that mitigates the threat?

[00:05:28] Speaker 03:
That it mitigates?

[00:05:30] Speaker 03:
Yes, there is actually the Western drug, I think, covers that, as well as I think the Chatfield case, which I was just looking at.

[00:05:39] Speaker 03:
It also talks about the difference between low-level and high-level management and statements to counter or give greater context to a statement.

[00:05:51] Speaker 03:
No one is alleging here that he said, we are going to close this plant if you bring in the union.

[00:05:56] Speaker 03:
It never came close to that.

[00:05:58] Speaker 03:
There are cases out there where that's what management says.

[00:06:01] Speaker 03:
Didn't say that here.

[00:06:02] Speaker 05:
In the interest of time, can you move to the new standard?

[00:06:06] Speaker 05:
Absolutely.

[00:06:07] Speaker 05:
Lots of thoughts about that.

[00:06:08] Speaker 03:
Go ahead.

[00:06:09] Speaker 03:
Sure.

[00:06:09] Speaker 03:
So we have something here where I think everyone would agree the Supreme Court has the final say on what the law is.

[00:06:17] Speaker 03:
There's no deference given to the board on what the law is.

[00:06:21] Speaker 03:
There's no right of the board, or frankly this court, to depart from what the Supreme Court has held.

[00:06:26] Speaker 03:
And Gissell is the law.

[00:06:28] Speaker 03:
But that hasn't stopped the board from doing something, frankly, the community has never.

[00:06:33] Speaker 05:
Do you read Gissell to say that the board does not have the authority to change course from prior practice that Gissell affirmed, in other words?

[00:06:44] Speaker 03:
Gissell does not.

[00:06:46] Speaker 03:
There are situations where that is the case.

[00:06:48] Speaker 03:
That is not the way that Gissell opinion is worded.

[00:06:51] Speaker 03:
In fact, the Gissell opinion rejected the board's

[00:06:54] Speaker 03:
notions of how to enforce and what the standard should be.

[00:06:59] Speaker 03:
The Supreme Court imposed its own standard, so there's no question.

[00:07:04] Speaker 03:
And it's the standard the board has been trying to avoid that standard for years.

[00:07:08] Speaker 03:
There are many, many cases in which bargaining orders have been denied by the courts.

[00:07:12] Speaker 05:
Your view of Gissell is that the Supreme Court directed the policy of the board and that the board cannot deviate from the Gissell policy forevermore.

[00:07:22] Speaker 03:
Yes, that is our position.

[00:07:25] Speaker 03:
Until the Supreme Court, forever more, that depends on what the Supreme Court says in the future.

[00:07:30] Speaker 03:
But that is the law.

[00:07:33] Speaker 03:
Congress, who is making the law in this country?

[00:07:36] Speaker 03:
Congress wrote the law.

[00:07:38] Speaker 03:
The Supreme Court interprets the law and has now reinforced that against administrative agencies.

[00:07:43] Speaker 03:
There's no more Chevron deference.

[00:07:45] Speaker 05:
And what in particular, where in Gissell would you point us to the thought that rather than the Gissell affirming what the board had done, that it's directing a certain type of policy?

[00:07:57] Speaker 05:
What part of Gissell are you relying upon for that proposition?

[00:07:59] Speaker 03:
The pages that are always quoted.

[00:08:01] Speaker 03:
I think it's 602 to 606.

[00:08:04] Speaker 03:
So for the pages that are quoted in this, in the Chatfield decision, so, and it's 618, I'm sorry, at 618, you know, it's 395 U.S.

[00:08:17] Speaker 03:
at 618.

[00:08:19] Speaker 03:
And much of the, let's just say that every one of the cases that are cited by both parties in this brief make, address it as the law.

[00:08:29] Speaker 03:
They don't say that there's something that's going to evolve about it.

[00:08:33] Speaker 03:
And they're always dealing with situations where the board is saying, well, you know, we think we've done it our way, and that that way is better.

[00:08:43] Speaker 03:
But never have we seen the board come out and say, and even the board doesn't premise it on the notion that Gissell is not mandatory for it.

[00:08:54] Speaker 03:
They say, well, it's only mandatory for this type of claim.

[00:08:58] Speaker 03:
But we are creating an alternative

[00:09:01] Speaker 03:
universe, well, an alternative standard.

[00:09:03] Speaker 05:
But it might as well be an alternative universe, because it's trying to claim that- Well, let me ask you this, because the board has had different alternative standards come up over time.

[00:09:14] Speaker 05:
Joy Silk, Lyndon Lumber,

[00:09:18] Speaker 05:
Gissell, now the semix standard, for better or worse, that's the new standard.

[00:09:25] Speaker 05:
Why, and the Supreme Court has affirmed those changes in standards before, so what makes this Gissell affirmance different than the prior Supreme Court decisions that it would suggest that it's locking in what the board has chosen as the available remedy and only that?

[00:09:45] Speaker 03:
Because it was not an outright affirmance of the board.

[00:09:49] Speaker 03:
It rejected the board's standard.

[00:09:51] Speaker 03:
The board wanted to say at that time, and said so in the opinion, the board wanted to say if it was enough to set aside the election, that was enough.

[00:09:59] Speaker 03:
And therefore, you could issue a bargaining order based on that, which is exactly what they're trying to put in now without any authority whatsoever.

[00:10:07] Speaker 03:
The Supreme Court said no.

[00:10:09] Speaker 03:
There are certain things that are not

[00:10:12] Speaker 03:
sufficient.

[00:10:13] Speaker 03:
Certain unfair labor practices are not sufficient to have a bargaining order.

[00:10:16] Speaker 03:
That did not come from the board.

[00:10:18] Speaker 03:
That came from the Supreme Court.

[00:10:20] Speaker 03:
And until the Supreme Court changes it, the board had no right to do what it's done with this so-called alternate standard.

[00:10:26] Speaker 03:
Just say nothing of Lyndon Lumber and what Lyndon Lumber had to say at the Supreme Court about what Congress authorized.

[00:10:35] Speaker 03:
And it said there's no evidence that Congress ever believed

[00:10:38] Speaker 03:
that employers would have to file the first petition, which is what they've established now under this new standard, although how it applies here is

[00:10:48] Speaker 03:
beyond us.

[00:10:49] Speaker 01:
With respect to Linden Lumber, the court was responding to the DC Circuit's decision saying that the act required the board to require employers to file a petition, essentially, that the board did not have discretion to do anything else.

[00:11:08] Speaker 01:
And my understanding of the Supreme Court's decision is that it was a discretionary decision by the board.

[00:11:14] Speaker 01:
Why do you read Linden Lumber differently, given the procedural posture?

[00:11:18] Speaker 03:
Lyndon Lumber is a little more arguable than Gissell.

[00:11:21] Speaker 03:
Gissell is an outright rejection.

[00:11:23] Speaker 03:
But Lyndon Lumber, the reason we're arguing that what they rejected was the interpretation of what Congress had to say.

[00:11:31] Speaker 03:
And they rejected the boards.

[00:11:34] Speaker 03:
They rejected the DC Circuit.

[00:11:37] Speaker 03:
And the board, in this case, is relying on the dissenting opinions in Lyndon Lumber.

[00:11:41] Speaker 03:
So I think that Lyndon Lumber is still falling in the same boat, but in particularly because of the interpretation.

[00:11:48] Speaker 03:
Keeping in mind that this was at an earlier time when the board was given greater deference in terms of interpreting the statute.

[00:11:55] Speaker 03:
Now under Loper versus Bright, that's the biggest of sea change.

[00:11:59] Speaker 01:
uh... it's acknowledged this uh... chevron deference sections of loper bright where the court said there's a series of cases where we have held properly that a statute gives an agency broad discretion and you know that they have the authority to fill in essentially fill in the gaps of the statutory scheme they cited cases interpreting the NLRA

[00:12:22] Speaker 01:
as granting the board that type of authority.

[00:12:25] Speaker 01:
So why do you argue that that line of cases is inconsistent with Loper-Brite?

[00:12:30] Speaker 03:
Well, because they don't give any authority for this case.

[00:12:34] Speaker 03:
This case is unprecedented.

[00:12:35] Speaker 03:
So it can't claim any deference from the olden days or some previous decision.

[00:12:41] Speaker 03:
They came up with a new standard.

[00:12:43] Speaker 03:
It's entitled to no deference whatsoever.

[00:12:45] Speaker 03:
That's my simple answer to that question.

[00:12:47] Speaker 03:
I reserve three minutes for rebuttal.

[00:12:49] Speaker 01:
You may have three minutes.

[00:12:50] Speaker 03:
Thank you.

[00:12:58] Speaker 00:
Good morning and may it please the court.

[00:12:59] Speaker 00:
I'm Karen Sensor from Weinberg, Roger and Rosenfeld.

[00:13:02] Speaker 00:
With me at the council table is Matthew Earle.

[00:13:04] Speaker 00:
We're representing the Teamsters here.

[00:13:07] Speaker 00:
From the questions that were just asked, I guess I should start straight on the semi-experiment.

[00:13:11] Speaker 00:
I'll start there.

[00:13:12] Speaker 00:
I don't see any inconsistency when it comes to either Gissell or Linden Lumber.

[00:13:16] Speaker 00:
Linden Lumber addressed a completely different question that was reserved in Gissell.

[00:13:19] Speaker 00:
Lyndon Lumber addressed a situation of a bargaining order where there weren't underlying ULPs, where the employer did not create an atmosphere where employees could not have a free choice to vote.

[00:13:29] Speaker 00:
So Lyndon Lumber, I don't think, is truly in play when we're looking at the question here, where we have over 20, over 24 ULPs that were found, putting aside the ones that we think should have additionally been found.

[00:13:41] Speaker 00:
GSL also doesn't tell us that it's exclusive.

[00:13:43] Speaker 00:
It gives a framework of when a bargaining order can issue, but doesn't say it's the only time that a bargaining order can issue.

[00:13:50] Speaker 01:
I just want to make sure I understand your argument there, because the board's semics framework would address the other situation in which no ULPs were committed, but the employer simply did nothing.

[00:14:01] Speaker 01:
Right, and didn't file a petition for an election, and the board's new standard says, you know, it is, they're putting the essentially burden on the employer who wants to insist on an election after being given a, you know, a demand for bargaining and a claim that the union represents the majority of employees, that if the employer does nothing, they will be subject potentially to a ULP charge.

[00:14:25] Speaker 01:
So are you arguing that

[00:14:27] Speaker 01:
that issue since it's just not presented.

[00:14:29] Speaker 01:
Those facts aren't presented here.

[00:14:30] Speaker 01:
We don't need to rule on the legality of that portion of the framework.

[00:14:34] Speaker 00:
Well, those facts are not here.

[00:14:36] Speaker 00:
But independently, the action of doing nothing is in fact doing something.

[00:14:40] Speaker 00:
When a demand has been made for recognition,

[00:14:42] Speaker 00:
That is sufficient to create the bargaining obligation because the act, in the clear text, indicates that there are ways to representation other than a NLRB election, and those include a card check majority, which is contemplated in Gissell and a whole line of cases that follow thereafter.

[00:15:01] Speaker 00:
The employer's action of refusing to recognize the card check majority

[00:15:06] Speaker 00:
is in itself the ULP that leads to the bargaining order when the employer chooses not to engage in the RM process.

[00:15:13] Speaker 04:
And that was not the law prior to this decision, is that correct?

[00:15:19] Speaker 00:
I would be hard-pressed to say that it was.

[00:15:20] Speaker 00:
It's clearly not the law.

[00:15:23] Speaker 00:
The way that it would be dealt with in that situation would be that the union would file the petition because the employer did not grant the voluntary recognition upon the card check.

[00:15:33] Speaker 00:
But the board has an extraordinary amount of control over what the remedies are going to be.

[00:15:39] Speaker 00:
If we go back to the argument that council was previously making on Loper-Brite, 106C tells us that the board

[00:15:45] Speaker 00:
has the right to choose whatever remedy it thinks is appropriate.

[00:15:48] Speaker 04:
Well, wait a minute.

[00:15:49] Speaker 04:
You know this discretion is not nearly as unbounded as you were suggesting.

[00:15:54] Speaker 04:
And in fact, the rule that you seem to reluctantly acknowledge has been changed as a rule that was in place for over 50 years.

[00:16:04] Speaker 04:
So the notion that, ah, this is just something the board can make up as it's going along is not a notion that's likely to survive very long.

[00:16:11] Speaker 00:
I don't think it's a notion that they can just change it as they're going along.

[00:16:14] Speaker 00:
But time and time again, the courts, both this court and the Supreme Court, have referenced that the board is in the best decision to determine how to remedy unfair practices because they are seeing it day in and day out, that they're making those decisions based on those circumstances.

[00:16:29] Speaker 04:
Let me focus attention in particular, and this is actually going to go to

[00:16:32] Speaker 04:
the general counsel's office as well, but a lot of material here.

[00:16:36] Speaker 04:
So I don't pretend to have my arms around all of it.

[00:16:39] Speaker 04:
This case has been a challenge.

[00:16:41] Speaker 04:
But there's a particular statement in the board's decision.

[00:16:46] Speaker 04:
And for what it's worth, it's on pages 15 and 16 of the printed version I'm looking at.

[00:16:53] Speaker 04:
We accordingly, and there's talking here about the board's decision to impose a different remedy than that had been proposed by the ALJ.

[00:17:02] Speaker 04:
We accordingly agree with the judge that the whole record of this case clearly supports concluding that the possibility of erasing the effects of the respondents' highly coercive misconduct and ensuring a fair rerun election by the use of the board's traditional remedies is slight," end quote.

[00:17:20] Speaker 04:
And slight isn't a word that's picked up by accident.

[00:17:22] Speaker 04:
That's the word that's used in Gissell.

[00:17:25] Speaker 04:
Where in the ALJ's decision does the ALJ make such a conclusion?

[00:17:30] Speaker 04:
I can't find it.

[00:17:31] Speaker 04:
It seems inconsistent with the remedy that the ALJ has proposed.

[00:17:35] Speaker 00:
Well, the board is entitled to determine.

[00:17:37] Speaker 04:
No, no, no.

[00:17:38] Speaker 04:
This statement says, we agree with the judge.

[00:17:41] Speaker 04:
So they're starting off the explanation by saying, we agree with them.

[00:17:45] Speaker 04:
And I don't see the judge ever making anything resembling that kind of statement.

[00:17:48] Speaker 04:
So my focused question is, where did the ALJ offer up this premises, what

[00:17:55] Speaker 04:
The board appears to define it as a starting point.

[00:17:59] Speaker 00:
Well, I think that the ALJ did find that but for the question of dissemination that he otherwise thought that a bargaining order would be appropriate, which inherently... Well, that's not answering the question.

[00:18:11] Speaker 04:
Did he ever say anything that suggested that the prospects of a rerun election being fair were slight, which is the standard Gissell adopts and the board apparently recognizes?

[00:18:23] Speaker 04:
I don't get it.

[00:18:24] Speaker 04:
I don't see it.

[00:18:25] Speaker 04:
Where is it?

[00:18:26] Speaker 00:
I don't think that the ALJ specifically used those words, but it's a long-standing precedent.

[00:18:31] Speaker 04:
What was the ALJ's conclusion?

[00:18:33] Speaker 04:
To order a bargaining issue, a bartering order, or to suggest that with these remedies, you could have a new election that would be fair?

[00:18:41] Speaker 00:
That was the ALJ's belief that with these additional enhanced remedies that there could be a fair election.

[00:18:49] Speaker 00:
But the board is entitled to, and has long been entitled to, change the remedies relying on the same underlying facts without questioning the credibility and other factual determinations of the ALJ.

[00:19:01] Speaker 04:
Except its explanation here starts with the premise that the judge found the prospect of a fair election was slight.

[00:19:09] Speaker 04:
And the judge didn't find that.

[00:19:11] Speaker 04:
So how am I supposed to decide that what the board did in changing the remedy was reliable or something other than arbitrary and capricious when the very starting point offered up in the decision doesn't exist in the ALJ's decision?

[00:19:25] Speaker 04:
Now, maybe the general counsel can point me to some things.

[00:19:28] Speaker 04:
Like I say, there's a lot of material here.

[00:19:30] Speaker 04:
But I looked hard and couldn't find it.

[00:19:32] Speaker 04:
And it causes me to wonder, well, what does the board think it was operating on if its premise, if its starting point is demonstrably false?

[00:19:41] Speaker 04:
What's the reason for changing the remedy?

[00:19:43] Speaker 04:
You told me they've got the power to do it, but they've got to have an explanation.

[00:19:47] Speaker 04:
And if their explanation starts with something that's not true, doesn't seem like a very persuasive explanation.

[00:19:52] Speaker 00:
I think that their explanation goes to a broader base than particularly to the facts of this case.

[00:19:58] Speaker 00:
So let's go to it.

[00:20:00] Speaker 04:
Identify to me what explanation they offer.

[00:20:03] Speaker 04:
I found two.

[00:20:04] Speaker 00:
Well, I think that the explanation that they have provided is that we have a series of unfair practices that start from the beginning of the campaign, travel all the way through, including after the campaign has ended, including high level officials and low level officials to separate lines of cases saying which ones of those are most likely to remain in place and concerning for employees.

[00:20:25] Speaker 00:
Many of these being hallmark violations in over such a period of time that it is unlikely that anyone will forget them anytime soon.

[00:20:34] Speaker 04:
And what are they based that purported finding on?

[00:20:37] Speaker 04:
Because the ALJ didn't reach the same finding, and he's the one that talked about the so-called Hallmark violations.

[00:20:43] Speaker 00:
Well, I actually think that that might be the reason why we're looking at a CEMEX as an alternative to, in addition to a GISL, is because the way that GISL... Well, that's another world of problems.

[00:20:54] Speaker 04:
Because basically what you're offering up and what the board seems to have offered up is we think we've got the authority here to issue a bargaining order.

[00:21:02] Speaker 04:
But in case we don't, we're going to change the rules, which is not a statement that offers support for either half of the equation.

[00:21:11] Speaker 04:
It suggests that maybe they really didn't have enough here to justify the issuance of the bargaining orders.

[00:21:18] Speaker 04:
And so they've got to change the rules to get to the result they're looking for.

[00:21:21] Speaker 00:
I read it the other way.

[00:21:22] Speaker 00:
I read it as we have enough under GISSEL, but we think that the GISSEL standard has become very complicated.

[00:21:27] Speaker 04:
Except when I asked you what they had under GISSEL after

[00:21:32] Speaker 04:
brief comment with regard to Hallmark, and I said, that's what the ALJ talked about, and he got a different remedy.

[00:21:38] Speaker 04:
You switched to Plan B. Well, we've changed the rules, so they can do it under the changed rules, which is the problem I'm now trying to identify.

[00:21:45] Speaker 04:
Because if you can't do it under the established standard, and you have to change the rules to get the result you want, that suggests that maybe the changing of the rules isn't what you're supposed to do in order to get to the result you want.

[00:21:59] Speaker 04:
And that's the problem I've posed to you.

[00:22:01] Speaker 04:
What set me straight?

[00:22:03] Speaker 00:
But I think that goes overall to the board's ability to adapt and change its approach when it sees that the approach that it's using is not working to remedy the problem.

[00:22:13] Speaker 00:
The Gissell bargaining order is supposed to address two different things.

[00:22:16] Speaker 00:
It's supposed to remedy both the ULPs and it's also intended from the Supreme Court decision to deter future violations.

[00:22:24] Speaker 00:
When we see a case like this, where the employer is engaged in so many hallmark violations, it's quite clear that the GISSEL order in and of itself is not deterring an employer from engaging in those types of actions.

[00:22:36] Speaker 00:
And some other type of weighing is necessary in order to get there.

[00:22:41] Speaker 00:
But for the most part, the GISSEL, the SEMEC standard tracks what the GISSEL standard tells us for the GISSEL type 2 cases.

[00:22:48] Speaker 00:
It simply takes off some of the issues in the back end where they've had the most difficulty in both the courts and the board enunciating how exactly you're supposed to weigh out certain pieces that happen at the end.

[00:23:01] Speaker 00:
What the CEMEX order does is clarify that back end on a gistle.

[00:23:06] Speaker 00:
where we've had so much court back and forth and endless rounds of litigation, which of course only favour the employer who's looking for the delay and seeking to not bargain with the employee's representative.

[00:23:18] Speaker 05:
Can I ask Council, suppose the Board had said, you know, we don't think the requirements of GISSEL have been met, but we do think this presents a different circumstance where we want to create this alternative remedial scheme

[00:23:31] Speaker 05:
Would the board be allowed to do that or no?

[00:23:34] Speaker 05:
Does the act give it the discretion to decide that even if Gissell isn't met, it can reach a different remedial structure?

[00:23:43] Speaker 00:
I think that they do have the right to do that because I don't think anything in Gissell tells us that the Gissell order is the exclusive way that we can reach a bargaining order.

[00:23:52] Speaker 00:
And it wasn't for a long time.

[00:23:54] Speaker 00:
Gissell is not the first bargaining order case at the U.S.

[00:23:56] Speaker 00:
Supreme Court.

[00:23:57] Speaker 00:
Frank Brothers in 1944 is.

[00:23:59] Speaker 00:
It does not have any of those standards that came down with Gissell and yet creates a valid bargaining order.

[00:24:04] Speaker 00:
There's nothing that disclaims or undercuts Frank Brothers in any of the later decisions.

[00:24:10] Speaker 05:
Did that come up in prior cases when the board created new orders?

[00:24:15] Speaker 05:
Did it first say whether the pre-existing order was or was not met before adopting a new one?

[00:24:22] Speaker 00:
I have not found other cases that really go to creating additional orders.

[00:24:27] Speaker 00:
They sometimes don't talk about what kind of order it is and issue a bargaining order, but I haven't seen anything that calls anything by a different name such that we have a set of cases that we can work through on that.

[00:24:37] Speaker 00:
And I apologize, I forgot to reserve time in the beginning.

[00:24:40] Speaker 00:
And I have, I would, unless there are further questions right now, I'll reserve the rest of the time.

[00:24:45] Speaker 00:
You can reserve the rest of your time.

[00:24:45] Speaker 00:
Thank you.

[00:24:57] Speaker 02:
Good morning.

[00:24:57] Speaker 02:
May it please the Court?

[00:24:58] Speaker 02:
Eric Weiss on behalf of the National Labor Relations Board.

[00:25:01] Speaker 02:
I guess I'll begin with responding to Judge Sanchez and Judge Clifton, some of your line of questionings.

[00:25:07] Speaker 02:
First of all, it is absolutely the Board's position that it can adopt a new framework to justify bargaining orders, even if a GISSEL order were not warranted.

[00:25:16] Speaker 02:
It's adopting a new standard that focuses on a very different inquiry, and in cases going forward,

[00:25:23] Speaker 02:
The board has decided that that is a sufficient basis for finding a section 85 violation and a remedial bargaining or so even if the court and I'll address judge Clifton your question a moment.

[00:25:34] Speaker 04:
Let me pick up what you just said.

[00:25:36] Speaker 04:
It seems to be clear the board says as much you've said that they didn't need to do it to resolve this case.

[00:25:43] Speaker 04:
So why not do it through a rulemaking process?

[00:25:46] Speaker 02:
Well, they did need to do it to resolve this case, Your Honor.

[00:25:50] Speaker 04:
The board told me they didn't, and the board says it didn't.

[00:25:52] Speaker 04:
It had enough authority under the established framework, the GISSEL framework, to issue a barting order.

[00:25:58] Speaker 04:
They said as much, and I think you just said as much.

[00:26:01] Speaker 02:
Is that not true?

[00:26:01] Speaker 02:
Well, it's correct.

[00:26:02] Speaker 02:
They provided two independent reasons that I concede.

[00:26:06] Speaker 02:
The result is the same with respect to the employer's obligations.

[00:26:10] Speaker 02:
It's a remedial bargaining order, but they're two different bargaining orders.

[00:26:13] Speaker 04:
Well, they've offered different explanations to get to the same result, but they didn't need the second one.

[00:26:18] Speaker 04:
The changing of the framework was something they did not necessary to resolve the case.

[00:26:24] Speaker 04:
They did it in, it seems to me, much more of a regulatory than an adjudicative fashion.

[00:26:29] Speaker 04:
So that's my question.

[00:26:31] Speaker 04:
Why not do that through rulemaking?

[00:26:32] Speaker 04:
Let me put it into context.

[00:26:34] Speaker 04:
These rules have been around since the Lyndon Johnson administration.

[00:26:38] Speaker 04:
I may be the only person here that was alive at that point, but they're 50, 60 years old.

[00:26:47] Speaker 04:
So why not do it in a way that suggests exercise of the board's regulatory authority instead of pulling it out in the middle of a case and applying it retroactively to help justify a decision which the board said it already had the authority to make and did make independently?

[00:27:07] Speaker 04:
So why not use the rulemaking process?

[00:27:09] Speaker 02:
Sure.

[00:27:09] Speaker 02:
Well, setting aside the point that it's duplicative, but it's independent

[00:27:15] Speaker 02:
bargaining orders.

[00:27:16] Speaker 02:
But to answer your question, it's well established that the board has the authority to promulgate these kinds of labor policy standards.

[00:27:22] Speaker 04:
That's not the question I asked.

[00:27:24] Speaker 04:
Why?

[00:27:25] Speaker 04:
They may have authority, but the authority is subject to review as being arbitrary and capricious.

[00:27:30] Speaker 04:
And this one sort of screams out, if they're changing a rule that's been in place for over 50 years, and it affects a lot of people, why do it in a process that's in the context of a litigation where it turns out not to have mattered?

[00:27:45] Speaker 02:
Well, the reason the board did it through adjudication, Your Honor, as the board explained in its decision and we explained in our brief, is that this inquiry, the standard that the board is adopting here, is a very fact-specific inquiry.

[00:27:56] Speaker 02:
It's not amenable to rigid rules, because there are so many variables that come into play, some of which have been identified by Amici and Semmix in the briefing, that the board is going to need to address as they arise, as these unusual circumstances arise.

[00:28:11] Speaker 02:
So as it has consistently for the last 90 years, the board announced a general framework through adjudication rather than through formal rulemaking.

[00:28:20] Speaker 02:
And the contours of that rule are going to evolve over time through the adjudicatory process.

[00:28:24] Speaker 04:
Well, that's what we do.

[00:28:26] Speaker 04:
I mean, we evolve over time in the case law, ruling on statutes and regulations.

[00:28:34] Speaker 04:
That's the adjudicative process.

[00:28:36] Speaker 04:
But we don't promulgate the

[00:28:39] Speaker 04:
I mean, common law has a history where the judges really do set the framework, but here the framework is being set by an administrative agency.

[00:28:49] Speaker 04:
The board describes it as a framework, so it's not turning on the facts of this particular case.

[00:28:56] Speaker 04:
And so I understand the board has the authority to do it through adjudication, but I never figured out why it was they thought it was appropriate to issue a framework applicable generally in the context of this one particular case where it didn't seem to

[00:29:14] Speaker 02:
Demand because the board was answering a question that was squarely presented by this case, which is when you have an employer that has has received a request for recognition from a majority union.

[00:29:27] Speaker 02:
it has refused recognition, an election has been scheduled, and the employer has engaged in unlawful conduct requiring that election to be set aside, how does the board handle that situation to effectuate the policy of the act?

[00:29:39] Speaker 02:
That's squarely presented here, and that's why the board announced a new framework, which, as it does in many cases, will continue on as a board standard and may be applied in future cases.

[00:29:51] Speaker 02:
But it is directly applicable.

[00:29:52] Speaker 04:
And applied in this case retroactively, even though it applies rules that weren't known at the time, which raises a whole host of retroactivity questions.

[00:30:01] Speaker 04:
But I don't think they really matter here.

[00:30:04] Speaker 04:
But it just.

[00:30:05] Speaker 02:
Sure.

[00:30:05] Speaker 02:
Well, so I guess my answer, the bottom line, Your Honor, would be that this case squarely presented the need for this change in law and for this new framework.

[00:30:14] Speaker 04:
How?

[00:30:14] Speaker 04:
If they didn't need to adopt the new framework to reach the result, how did it squarely present the need to adopt a new framework?

[00:30:21] Speaker 02:
because they needed to remedy the employer's unlawful conduct, and for your own question.

[00:30:26] Speaker 04:
But it just did.

[00:30:27] Speaker 04:
It said they could do it under existing law.

[00:30:29] Speaker 04:
You haven't explained to me why they, quote, need your word, not mine, to adopt a new framework to resolve this case.

[00:30:36] Speaker 02:
Well, respectfully, Judge Clifton, your own questions suggest a skepticism about the GISS order in this case.

[00:30:42] Speaker 02:
It's not unreasonable for an agency to provide alternative rationales, as the Supreme Court and this Court have noted,

[00:30:49] Speaker 02:
in the judicial context, if a court provides alternative bases for a decision that's not dicta, that's entirely appropriate to provide separate rationales.

[00:30:58] Speaker 02:
And here, the result is the same for the employer, but it's essentially two bargaining orders.

[00:31:04] Speaker 02:
It doesn't make sense to have two bargaining orders in the order, but the analysis is very different.

[00:31:09] Speaker 02:
Gissell looks to, is a future election unlikely to be fair?

[00:31:14] Speaker 02:
That is a very different inquiry.

[00:31:16] Speaker 04:
And where is that question answered here?

[00:31:19] Speaker 04:
I'll go back to the question I posed earlier and tried to alert you.

[00:31:22] Speaker 04:
Do you know of anything in the ALJ's decision that justifies the board's reliance upon the ALJ decision to support the conclusion the prospect of a fair election is, quote, slight, close quote?

[00:31:35] Speaker 02:
Yes, Your Honor.

[00:31:35] Speaker 02:
And I can point you to a specific passage, but also explain the error in the judge's analysis that the board pointed out.

[00:31:43] Speaker 02:
The judge performed an analysis, essentially treating it as a prima facie case, where he found a prima facie case for a Giselle bargaining order, and then he turned to discussing what he phrased as mitigating circumstances.

[00:31:56] Speaker 05:
Do you have a record set for that?

[00:31:57] Speaker 02:
Sure.

[00:31:58] Speaker 02:
It's page 113 of the DNO.

[00:32:01] Speaker 02:
I'm sorry I don't have the record on appeal site, but 113 of the DNO.

[00:32:06] Speaker 02:
So I can give you the exact quote.

[00:32:09] Speaker 02:
The judge found here the unlawful discharge, he's listing unfair labor practices, are certainly severe enough to warrant a bargaining order.

[00:32:18] Speaker 04:
And that's why the board- Well, he's talking about the severity of the violations.

[00:32:22] Speaker 02:
Right.

[00:32:22] Speaker 04:
But under GISSEL, there are two questions.

[00:32:25] Speaker 04:
The second question is where the word slight pops up.

[00:32:28] Speaker 04:
which is whether the prospects of a fair rerun election are slight.

[00:32:34] Speaker 04:
And the ALJ didn't say that.

[00:32:37] Speaker 04:
He may have said the violations, the first part was severe.

[00:32:40] Speaker 04:
Those are the Hallmark violations.

[00:32:42] Speaker 04:
I made reference to that.

[00:32:44] Speaker 04:
But I don't see anything that justifies the language of the board's order, especially the word slight, because that ties in exactly to the other part of the question, which is what are the prospects of a fair election in the future, since it's been real clear from the Supreme Court decisions in Congress that elections are considered the best way to go.

[00:33:04] Speaker 04:
But I don't see the ALJ saying anything resembling what the board purported to rely upon when it started its explanation for a different remedy.

[00:33:14] Speaker 04:
Well, I think— Can you point me to something?

[00:33:17] Speaker 04:
I would point you to page 113, Your Honor, and I take your point— Well, I've got 113, and the problem with that is that, as you just said, he's talking about the severity of violations.

[00:33:29] Speaker 04:
He's not talking about the prospects of a fair election in the future, and he offered remedies that

[00:33:36] Speaker 04:
He presumably thought we're going to lead to a fair election in the future, and why the board reached a different result.

[00:33:42] Speaker 04:
I'm still wondering about that.

[00:33:43] Speaker 02:
Well, Your Honor, respectfully, I don't really think it matters if the board, I mean, I'm not conceding this, but if the board misquoted the ALJ in that one sentence, the board provided eight pages justifying against the bargaining order, performing its own analysis.

[00:33:58] Speaker 02:
The ALJ's findings are entitled to know

[00:34:01] Speaker 02:
additional deference by the board or this court.

[00:34:03] Speaker 02:
The board's decision is what is controlling, so even assuming that the board miscited an exact statement that the ALJ did not include in his decision, the board did not rely on a single sentence for a gist of bargaining order here.

[00:34:19] Speaker 02:
It performed very thorough analysis, examining the unfair labor practices, explaining why the judge was wrong in the way that he analyzed dissemination.

[00:34:28] Speaker 02:
focusing on the fact that this was a very close election when it was initially held.

[00:34:34] Speaker 02:
It was decided by very high turnout.

[00:34:36] Speaker 02:
It was decided by seven votes.

[00:34:39] Speaker 02:
I'd also note that there were challenged ballots that the board did not resolve because they were non-determinative.

[00:34:44] Speaker 02:
But in theory, this may have been a tie election with very high turnout.

[00:34:49] Speaker 04:
And I'm fine with that.

[00:34:49] Speaker 04:
I've got no problem with their explanation for why the election results had to be set aside.

[00:34:55] Speaker 04:
But Gissell,

[00:34:57] Speaker 04:
added something, a category of cases where the prospect of a rerun election being fair were slight.

[00:35:04] Speaker 04:
And that's the piece the board, I'm not sure I'm reading the same thing you are, but as I read it, the board never really addresses.

[00:35:12] Speaker 04:
The only thing I see they offer up, close election, but that really doesn't speak to the question of whether it can be fixed and have a fair election in the future, and a conclusion that the

[00:35:26] Speaker 04:
violations here were sufficiently pervasive that we think the employer is going to commit new unfair labor practices.

[00:35:36] Speaker 04:
And I don't see anything else.

[00:35:37] Speaker 04:
Now, that may be enough, but it's not much.

[00:35:40] Speaker 04:
And telling me that eight pages of detailed analysis, I didn't find anything resembling what you just described.

[00:35:47] Speaker 02:
Well, I respectfully disagree, Your Honor.

[00:35:49] Speaker 02:
Then point me to the pages.

[00:35:51] Speaker 02:
Sure.

[00:35:52] Speaker 02:
So you identified some of the pages yourself.

[00:35:58] Speaker 02:
Starting on page 16, the board then goes on through page

[00:36:05] Speaker 02:
19 with very detailed analysis examining the facts of this case explaining why the judge's conclusion was mistaken and explaining why in the board's expert judgment a rerun election is likely to be tainted here and why a bargaining order is warranted.

[00:36:21] Speaker 02:
That's all the board needs to do under well-established precedent regarding gets the board.

[00:36:26] Speaker 04:
For starters we had four pages not eight.

[00:36:29] Speaker 02:
Well, this is after already some analysis.

[00:36:31] Speaker 02:
This is specifically responding to the judge, but there was four pages before that as well.

[00:36:35] Speaker 04:
Well, this is about the remedy.

[00:36:37] Speaker 04:
And this is where they're specifically talking about the board's judgment that a different remedy should be imposed than the ALJ had recommended.

[00:36:45] Speaker 04:
And if you look at that part, I mean, I've got to tell you, I don't see a whole lot there.

[00:36:50] Speaker 02:
Well, I respectfully disagree, Your Honor, but again, I'd note that even if the court disagrees with the Gissler bargaining order, again, there's an alternative basis under this new framework, which is controlling and would still justify enforcement of the board's order here.

[00:37:06] Speaker 02:
And the board's adoption of the new framework does not depend on whether the court thinks that a Gissler bargaining order is warranted.

[00:37:12] Speaker 05:
Council, could you respond to Mr. Baskin's argument that Gissell itself set the boundaries of what the board could adopt as a remedial structure and why?

[00:37:23] Speaker 05:
Well, just please react to that.

[00:37:25] Speaker 02:
Yes, thank you, Your Honor.

[00:37:27] Speaker 02:
I think, I mean, I disagree with my opposing counsel.

[00:37:30] Speaker 02:
I would urge the court to read the entire Gissell opinion

[00:37:34] Speaker 02:
In detail, I think it's very clear, I would submit, that what the court was doing there was affirming the board's discretionary adoption of a new practice.

[00:37:44] Speaker 02:
So in that case, there were three board orders that went up to the Fourth Circuit.

[00:37:50] Speaker 02:
Those three orders were applying the form of Joy Silk that was in place at the time.

[00:37:54] Speaker 02:
So in those three cases, the board had issued an order

[00:37:57] Speaker 02:
where it said, this employer did not have a good faith doubt about the union's majority status.

[00:38:02] Speaker 02:
It committed significant enough ULPs to set aside the elections or issuing a bargaining order full stop.

[00:38:09] Speaker 02:
The Fourth Circuit denied enforcement because it thought that authorization cards were not sufficient to show majority status.

[00:38:15] Speaker 02:
The Supreme Court unequivocally reversed that position.

[00:38:19] Speaker 02:
While the case was pending before the Supreme Court,

[00:38:22] Speaker 02:
in a manner that the Supreme Court itself seemed to find surprising, Board Council, on behalf of the Board, changed position in the litigation itself and said that from now on, going forward, we're abandoning Joy Silk altogether.

[00:38:38] Speaker 02:
We're essentially adopting this new standard, which exclusively looks at whether a future rerun election is possible.

[00:38:47] Speaker 02:
And I would submit, in the opinion, the Supreme Court is very clear

[00:38:51] Speaker 02:
that the only question it is answering it in fact explicitly reserves ruling on any other form of bargaining order it's only answering this new standard where you have a bargaining order based on a future election prospect and it says that it's affirming what the board did there is reasonable

[00:39:10] Speaker 02:
And it goes through these three categories, mirroring the board's own proffered analysis, including the category two that Judge Clifton was discussing, where you have a slight, the possibility of a fair reintroduction is slight.

[00:39:26] Speaker 02:
And it said that is entirely within the board's discretion.

[00:39:29] Speaker 02:
It's affirming it.

[00:39:31] Speaker 02:
And there's this third category where you have unfair labor practices so minor that they don't even impact the election.

[00:39:38] Speaker 02:
So number one, I think it's clear that the Supreme Court was, you know, affirming the board's discretionary exercise.

[00:39:45] Speaker 02:
I don't find anything in that opinion suggesting that the Supreme Court was disapproving of Joy Silk.

[00:39:51] Speaker 02:
I think it would have said that if it was, because at the end of the day, it affirmed this new approach that the board announced during litigation

[00:40:00] Speaker 02:
because it was a new approach, it remanded the three cases to apply the new standard, which no longer turned on good faith doubt, and it otherwise fully affirmed all of the basic principles that go into the board's new standard here, and I think is largely dispositive of this case, because the central holding in Gissell is that Congress

[00:40:22] Speaker 02:
was clear that non-election proof of majority status is sufficient under Section 9A and Section 8A-5 of the Act to establish an enforceable bargaining obligation.

[00:40:34] Speaker 02:
That is the heart of the board's new framework in this case, that you can have a bargaining order based on majority showing without having to go to a future election.

[00:40:45] Speaker 02:
In fact, one could argue that the Linden Lumber standard

[00:40:48] Speaker 02:
which put all of the focus on a future election is really inconsistent with what the Supreme Court was saying in Gissell.

[00:40:55] Speaker 02:
Now, granted, in Linden Lumber, a 5-4 majority of the Supreme Court said that that new approach was permissible with respect to the employer refusing to file an election petition.

[00:41:07] Speaker 02:
But I would just urge the Court to read both of those opinions in detail, and I think they fully support the Board's analysis here.

[00:41:15] Speaker 02:
and what the board did was well within its discretion, um, as the expert agency tasked with developing national labor policy.

[00:41:23] Speaker 01:
Counsel, there are a lot of issues in this case, so we'll give you some extra time, but I have a few questions on that.

[00:41:28] Speaker 01:
First, the board, has the NLRA always expressly given the board rulemaking authority?

[00:41:34] Speaker 02:
Yes, well there's express rulemaking authority in section six of the act in terms of formal rulemaking and in terms of the, you know, sort of gap-filling rulemaking that the Supreme Court referred to in Loper-Brite, that is also established going all the way back to the inception of the act.

[00:41:51] Speaker 02:
We cited some cases in our 28J response letter, and those are just illustrative examples, which in turn cite additional examples.

[00:42:00] Speaker 02:
But it's very clear, going all the way back to the start, that the NLRA is one of the types of statutes that Loper-Brite is referring to.

[00:42:08] Speaker 02:
where Congress wrote the statute wanting, very broadly, wanting to give discretion to the expert agency.

[00:42:16] Speaker 02:
And since it's that kind of statute, the standard of review is well established.

[00:42:22] Speaker 02:
If the board exercises that discretion, is it rational and is it consistent with the act?

[00:42:28] Speaker 01:
So in the terms.

[00:42:30] Speaker 01:
When the board moved from the pre-Joy Silk era to Joy Silk,

[00:42:36] Speaker 01:
And then some iterations of Joy Silk to Linden Lumber and then some iterations of Linden Lumber to what it's now attempting to adopt and CEMEX has adopted and is subject to challenge here.

[00:42:48] Speaker 01:
Has there ever been rulemaking in any of these changes, formal rulemaking?

[00:42:53] Speaker 02:
There has not, Your Honor.

[00:42:54] Speaker 02:
And I think that response to Judge Clifton, your question, that yes, Linden Lumber was in place for 50 years, and the boards changed it through adjudication.

[00:43:03] Speaker 02:
But in Gissell and Linden Lumber, the Supreme Court approved changes of a standard that had been in place for 30 to 40 years.

[00:43:11] Speaker 02:
and had no issue with deferring to the board's discretionary change through adjudication.

[00:43:16] Speaker 02:
And in fact, in the board's entire history, the board has only performed a handful of formal rulemaking.

[00:43:23] Speaker 02:
So it's just well established that in the context of federal labor law, courts have unanimously agreed that the board generally has the authority to announce rules through the adjudicatory process.

[00:43:34] Speaker 01:
In Linden Number, the DC Circuit

[00:43:38] Speaker 01:
seemed concerned with what would happen if the employer, well excuse me, the Supreme Court seemed, there was some back and forth essentially between the circuit and the Supreme Court about what would happen if an employer filed a petition because the DC Circuit's position was that the NRA actually requires the board to put the onus of filing a petition on the employer.

[00:44:04] Speaker 01:
Correct.

[00:44:04] Speaker 01:
And then part of the DC Circuit's rationale, I think, was that it would be more efficient, essentially, for the employer if it wanted to insist on an election for the employer to file a petition.

[00:44:16] Speaker 01:
In my understanding, the Supreme Court, saying that NLRA doesn't actually require the board to require the employer to put on the petition, noted that there could be

[00:44:26] Speaker 01:
The employer could file a petition that proposed a bargaining unit that differed from the one that the union demanded recognition for.

[00:44:35] Speaker 01:
How under the new framework would the board handle such a discrepancy?

[00:44:42] Speaker 02:
Well, so to the specific question of a discrepancy over the unit, it would be very easily resolved, because regardless of who files a petition, if there is a dispute over the bargaining unit, that can be resolved through the representation case, just as if the union had filed a petition.

[00:44:58] Speaker 01:
So is it no longer true, because as the Supreme Court noted in Linden Lumber, that if there was a demand for recognition for a particular unit,

[00:45:07] Speaker 01:
Then the employer filed an RM petition that proposed a different bargaining unit.

[00:45:13] Speaker 01:
The board would dismiss the RM petition, is that no longer true?

[00:45:18] Speaker 02:
I don't think that's true, Your Honor.

[00:45:20] Speaker 02:
I hesitate only because it's not, number one, it's not presented in this case, obviously.

[00:45:26] Speaker 02:
And also, this may be one of those areas I referred to earlier, where the board just needs to define some of these circumstances as they arise.

[00:45:35] Speaker 01:
Certainly- The board hasn't issued any guidance, and there's no clear answer on their existing board procedure?

[00:45:42] Speaker 02:
I don't know off the top of my head, Your Honor.

[00:45:44] Speaker 02:
I'd be happy to provide that in a post-argument letter.

[00:45:47] Speaker 02:
But I feel fairly confident in saying that it's not the case that an employer is somehow

[00:45:54] Speaker 02:
you know, bound to a unit it disagrees with.

[00:45:56] Speaker 02:
In CEMEX itself, the board went out of its way to make clear that even in an unfair labor practice proceeding, if the employer does nothing, an unfair labor practice charge is filed, and a CEMEX proceeding is initiated, that in the unfair labor practice proceeding, the employer would still have the defense that the unit is not appropriate.

[00:46:18] Speaker 02:
and the board would adjudicate that in the unfair labor practice proceeding just as it normally does in a representation proceeding.

[00:46:25] Speaker 02:
So certainly the intent of the board's framework is not to bind the employer in that way or to take away.

[00:46:31] Speaker 01:
So it's not, would you say it's not clear under the current framework if the union demands recognition for a particular unit and the employer wants to go to an election, the employer is not necessarily required to file the petition for the exact same unit that was demanded for?

[00:46:48] Speaker 02:
I hesitate to give a definitive answer.

[00:46:50] Speaker 02:
I'll follow up with the post-argument letter with the procedures.

[00:46:54] Speaker 01:
And then in Linden Lumber, I think in the D.C.

[00:46:57] Speaker 01:
Circuit or possibly in the dissent to Linden Lumber, where I understand the dissent was saying that, in fact, the NLRA actually required the board.

[00:47:07] Speaker 01:
to essentially adopt a framework similar to the one presented here.

[00:47:12] Speaker 01:
The dissent was saying that the employer would have a third option, which would be to announce that it would agree to a stipulated consent election, essentially an expedited election.

[00:47:25] Speaker 01:
If the union filed a petition, do you know if the board anticipates allowing that sort of

[00:47:34] Speaker 02:
Was a third option in lieu of the employer filing the petition itself I think that's something else that the board would need to decide as it arises the board noted here that generally If an employer receives a request for recognition, it should file an RN petition within two weeks but at the same time the board noted that there would be exceptions to that and extraordinary circumstances or unusual circumstances and

[00:47:58] Speaker 02:
that could be presented to the board.

[00:47:59] Speaker 02:
So again, I don't know if the board has contemplated that or hasn't answered to that yet.

[00:48:05] Speaker 01:
So your contention is not the two weeks and the employer burden is not necessarily a bright lighting rule under the semix.

[00:48:11] Speaker 02:
That's correct, Your Honor.

[00:48:12] Speaker 02:
And I'd also note that it's not really a burden, and I think the Board's reasoning may or may not differ to what the D.C.

[00:48:20] Speaker 02:
Circuit was saying in Linden Lumber.

[00:48:22] Speaker 02:
So what the Board did here is not, there's no circumstance where an employer is required to file an RN petition and will be found to have

[00:48:30] Speaker 02:
you know, be penalized for not doing so.

[00:48:33] Speaker 02:
If an employer doesn't want to file an RN petition, it doesn't need to do anything, but it risks unfair labor practice liability if it simply does nothing and it's then proven that this was a majority union.

[00:48:45] Speaker 02:
So what the board is doing in its CEMEX framework is what I alluded to earlier.

[00:48:50] Speaker 02:
The basic premise is

[00:48:51] Speaker 02:
If you have a majority union through non-election evidence, that is sufficient to establish a bargaining obligation.

[00:49:00] Speaker 02:
And to harmonize that with the fact that the Act does allow employers to file RM petitions and that elections, fair and free elections, are the preferred way of determining employee support, the Board, in its framework, created this carve-out, essentially, where it's saying, you can receive a request from a majority union.

[00:49:21] Speaker 02:
and you don't immediately have to bargain.

[00:49:24] Speaker 02:
You may file an election petition and go to a fair and free election, and you have that right as the employer under this framework, but that right is forfeited if the employer then invalidates the election through unlawful recourse of conduct.

[00:49:39] Speaker 01:
Right, I understand the Joy Silk framework essentially is that the employer could not insist on an election unless it had a good faith doubt, and then Lumber essentially

[00:49:48] Speaker 01:
said the employer could insist an election regardless of whether it has a good faith doubt, and that the SUMICS framework retains that part of the Linden Lumber standard, which is that the employer can insist an election regardless of whether it has a good faith doubt.

[00:50:02] Speaker 01:
Is that correct?

[00:50:03] Speaker 02:
That's correct.

[00:50:03] Speaker 02:
The board has abandoned the good faith inquiry as it has in other areas, for example, in the withdrawal of recognition.

[00:50:10] Speaker 02:
context so I think it's significant that the framework the board is asking the court to affirm here is actually in that respect you know much less

[00:50:22] Speaker 02:
forceful than the Joy Silk standard in its variants that this court affirmed for decades and that the Supreme Court, at least in principle, very strongly came close to endorsing in Gissel.

[00:50:35] Speaker 01:
At least in this circuit in Trump and in other cases, we approved the Joy Silk standard as consistent with the Act.

[00:50:42] Speaker 02:
Yes, in fact, we cite a number of cases in the brief, and those aren't even an exhaustive sampling.

[00:50:47] Speaker 02:
It was routinely the case in the circuit for decades that this court would affirm Joy Silk bargaining orders where you had a showing of majority status and no certified election had ever taken place.

[00:51:01] Speaker 02:
And that's really the key question in this case.

[00:51:04] Speaker 05:
You're running over, but I wanted to ask you about the make whole order.

[00:51:09] Speaker 05:
Assuming we disagreed with you that some extent not waived the issue of whether it violates the Seventh Amendment.

[00:51:16] Speaker 05:
Why in your view does this not implicate the Seventh Amendment?

[00:51:21] Speaker 02:
I think the easiest answer, Your Honor, is that there's a plethora of binding precedent from the Supreme Court and lower courts that the Board, through its unfair labor practice proceedings, adjudicates public rights rather than private rights.

[00:51:35] Speaker 02:
So the Board's proceedings are not even within the ambit of Article 3.

[00:51:39] Speaker 02:
much less the Seventh Amendment right to a jury trial.

[00:51:42] Speaker 02:
And so Jones and Laughlin, the case we cite in our brief, resolved that challenge in the very earliest years of the Act, where a party was arguing that the Board's make-or-relief required a jury trial and that its order violated the Seventh Amendment, and the Supreme Court unequivocally held that the Seventh Amendment has no application to the Board's proceedings.

[00:52:03] Speaker 02:
And that case was, if not reaffirmed, quoted and cited without disapproval in the recent Jarkazy opinion from the Supreme Court.

[00:52:12] Speaker 05:
Does the analysis turn on whether we look at the NLRA itself or on the type of remedy that the board is ordering and whether that sounds in a legal case or an equitable case?

[00:52:23] Speaker 05:
How do we approach that type of question?

[00:52:25] Speaker 02:
I think the public rights exception is categorical.

[00:52:28] Speaker 02:
It doesn't require a case-specific inquiry into the remedy.

[00:52:31] Speaker 05:
I mean, Jarkezy seems to really scale back the public rights exception.

[00:52:35] Speaker 05:
So I don't know how much weight you would want to put into that side of it.

[00:52:39] Speaker 05:
But as far as a threshold question, this is what I'm concerned with.

[00:52:46] Speaker 05:
Does it implicate the Seventh Amendment or not?

[00:52:48] Speaker 05:
And how do we answer that question before we get to a public rights exception?

[00:52:52] Speaker 02:
Sure, I mean, I guess it depends on the order you do the analysis.

[00:52:54] Speaker 02:
To me, the public rights exception actually proceeds first because you're outside of Article III altogether.

[00:53:00] Speaker 02:
But we do have the alternative argument that even if you look at whether the Seventh Amendment is implicated based on a legal versus equitable inquiry, the board's make or leave is also equitable.

[00:53:12] Speaker 02:
And that's also

[00:53:13] Speaker 02:
in Jones and Laughlin as an alternative rationale.

[00:53:16] Speaker 02:
The Supreme Court in Atlas Roofing explained this in detail, explained what it was doing in Jones and Laughlin.

[00:53:22] Speaker 02:
So you have first the public rights holding and secondly you have the holding that in that case it was back pay.

[00:53:29] Speaker 02:
but because the MECO relief is incidental to the board's undisputedly equitable cease and desist and reinstatement orders, the MECO relief is effectuating that equitable remedy, that it is itself equitable in addition to the cause of action here being anti-union discrimination, that that's totally unknown to the common law.

[00:53:51] Speaker 02:
So even if the court were to do the

[00:53:54] Speaker 02:
the two-step analysis under the Seventh Amendment.

[00:53:57] Speaker 02:
This is also just an equitable remedy under binding precedent.

[00:54:01] Speaker 02:
And as to the public rights exception, I would just note that whatever the Supreme Court had in mind with respect to the public rights exception writ large, in Jarkazi itself, it actually was citing Jones and Laughlin.

[00:54:13] Speaker 02:
And there's also the Agostini principle that lower courts are not meant to assume that the Supreme Court has overruled

[00:54:21] Speaker 02:
its precedent by implication, and certainly there's no Supreme Court decision suggesting that Jones and Laughlin, which is a very foundational administrative law case, that that has somehow been called into question by implication.

[00:54:36] Speaker 02:
So that would be the easiest way of resolving the Seventh Amendment.

[00:54:39] Speaker 02:
I'd also just note in passing that, as we cite at the end of our brief, there are related cases

[00:54:44] Speaker 02:
pending in the circuit where parties have been challenging the Thrive Remedy.

[00:54:51] Speaker 02:
So just to bring that to the court's awareness.

[00:54:52] Speaker 01:
And I apologize if you did address this in your briefing already, but has any of our circuits, sister circuits, addressed the legality of the remedy and specifically not with respect to the Seventh Amendment issue, but whether it's within the board's statutory authority?

[00:55:11] Speaker 02:
There's no opinion yet doing that, Your Honor.

[00:55:14] Speaker 02:
There's a case in this circuit, Macy's, which may be the furthest along that I'm aware of, in Thrive itself, as we noted in our 28-J letter.

[00:55:25] Speaker 02:
The Fifth Circuit denied enforcement in that case, but it was because they found substantial evidence to not support the unfair labor practice So they really had no of the underlying claim not on them, right?

[00:55:36] Speaker 02:
So they they had no real substantive analysis or cause to address the remedy So that has not been usually presenting the same challenge to the board's authority to issue this remedy and

[00:55:48] Speaker 02:
uh... other cases i'm sorry that makes these cases you said is already pending in this circuit it involves a challenge to thrive i'm not sure that it uh... you know assuming the issues were properly raised here that it includes all the same issues the court the panel in macy's did request supplemental briefing on

[00:56:06] Speaker 02:
in the Seventh Amendment.

[00:56:08] Speaker 02:
I think the agency's position is that it's not properly presented there because the employer had not raised it, but I don't know if the panel on that case intends to say so.

[00:56:18] Speaker 01:
And that case has already been submitted?

[00:56:21] Speaker 02:
It's been argued, and there was supplemental briefing.

[00:56:27] Speaker 02:
And I see I'm well over time, so if the court doesn't have any further questions.

[00:56:31] Speaker 04:
I don't suppose the general counsel is going to pay you extra for it, but we appreciate the contribution.

[00:56:37] Speaker 04:
Thank you very much.

[00:56:38] Speaker 04:
OK, thank you.

[00:56:39] Speaker 04:
Thank you.

[00:56:39] Speaker 04:
I'm not sure that's an unfair labor practice making you work overtime without compensation, but that's the professional life.

[00:56:47] Speaker 00:
I'm going to start with the application issue that you had been asking about.

[00:56:52] Speaker 00:
In practice throughout the regions, and I have a practice that takes me to at least eight to 10 regions a year, what they've been doing in practice is if an RM is filed, it does not have to follow precisely the scripture of the unit definition that was put forth by the union as part of the demand for recognition.

[00:57:08] Speaker 00:
And when there are competing RMs and RCs, they put one into abeyance and allow it to fully get processed, and they have the other one as the backstop in case one of the two parties decides to withdraw their petition.

[00:57:19] Speaker 00:
Either side can still get a resolution on the issue of representation because both petitions are there and pending, both the RM and the RC.

[00:57:26] Speaker 01:
So in... Are there any decisions that are at the board as published or any RD decisions that you can refer to in a 2018?

[00:57:37] Speaker 00:
They don't wind up going to decision.

[00:57:40] Speaker 00:
The majority of cases tip anyway, even when both an RM and an RC is simultaneously pending.

[00:57:47] Speaker 00:
So it's very hard to track precisely where they are.

[00:57:50] Speaker 00:
I'm not aware of any board decisions on it.

[00:57:52] Speaker 00:
There might be some RD decisions, but I have not seen those yet.

[00:57:55] Speaker 00:
But in practice, the employer is getting the opportunity to raise the question that they don't like that unit or that they have questions about that unit determination or what that unit would look like.

[00:58:04] Speaker 00:
I think the overall, though, important part here on this case is it can be affirmed on the Gissell order, and you don't have to get into that additional framework if you don't want to.

[00:58:13] Speaker 00:
But I think what the board is trying to do in that CEMEX order is to address not just remedying the unfair practice, but helping to ease the chill that comes from when the employer tells employees, these are the

[00:58:29] Speaker 00:
tells the employees in an illegal way.

[00:58:31] Speaker 00:
They're still allowed legal speech, of course, and there might be a loss of majority support based on legal speech.

[00:58:36] Speaker 00:
But if it's illegal speech or illegal actions, then ensuring that employees are not forever damaged by that.

[00:58:43] Speaker 00:
Because what happens in these cases, if you can take this case as a solid example, the petition was filed in 2018.

[00:58:49] Speaker 00:
These employees have been waiting for over six years to get resolution as to whether or not they have a union.

[00:58:55] Speaker 00:
They had majority support.

[00:58:57] Speaker 00:
It was destroyed by the actions of the employer.

[00:58:59] Speaker 00:
And now we have been engaged in round after round of litigation in different forums.

[00:59:03] Speaker 00:
And that's how the system gets tested for sure.

[00:59:06] Speaker 00:
But what's happening is that the employees are not receiving the benefits of being unionized.

[00:59:12] Speaker 00:
And they can never make that up.

[00:59:14] Speaker 00:
They will never get back the wage increases that they would have had had the employer been engaged in good faith negotiations all the way through.

[00:59:22] Speaker 00:
It's just not something that they will get to.

[00:59:24] Speaker 04:
I get that, but the premise is it's the workers that are allowed to figure out if they want representation.

[00:59:31] Speaker 04:
There was an election here, and the worker majority, albeit slim, voted against the representation.

[00:59:37] Speaker 04:
Now I understand all the arguments as to why that was tainted, but it makes it hard for me to simply presume that the result would have been different and that

[00:59:47] Speaker 04:
the employees who favored the union were right and the employees who voted against the union were wrong, and they lost a wave of benefits.

[00:59:56] Speaker 04:
The legal system isn't set up to presume that one side was right and the other side was wrong.

[01:00:01] Speaker 04:
And so the standard requires demonstration that a rerun election, because an election is the preferred way,

[01:00:10] Speaker 04:
that the prospects of a fair election would be slight.

[01:00:14] Speaker 04:
And I have posed several times the question, and I haven't seen anything or heard anything that suggests the board had a solid basis for deciding that it was right and the ALJ was wrong.

[01:00:27] Speaker 00:
Well, the board is entitled to the deference, not the ALJ, under the case law in this circuit.

[01:00:31] Speaker 04:
But the board has to explain what it's doing.

[01:00:34] Speaker 04:
And it explained what it's doing by starting with an incorrect statement as to what the ALJ had found.

[01:00:40] Speaker 04:
So you've got to understand my skepticism.

[01:00:43] Speaker 00:
I understand your skepticism, but I think that overall what we see under the GISSEL 2 analysis is the board and then the courts in most circuits, not in this circuit, but in most circuits, then guessing what would have happened and trying also to make that what would the future impact be determination.

[01:01:00] Speaker 00:
And what the board has ultimately decided here is they know what that future impact is.

[01:01:05] Speaker 00:
Unless it's a minimal ULP, the impact is always the same.

[01:01:09] Speaker 00:
The impact is that you have chilled the Section 7 rights of employees, and the best way to effectuate the Act and ensure that employees have those Section 7 rights is to start from the presumption that the employer should not benefit from its violation of the law.

[01:01:22] Speaker 00:
If the employer violates the law in the process, this is the implication unless it's such a minor violation that we're not going to get into it.

[01:01:30] Speaker 00:
consistent with Gissell.

[01:01:31] Speaker 00:
That's Gissell 3, right, the third type where a bargaining order doesn't issue.

[01:01:35] Speaker 00:
But what we say instead here is that the board has made a determination that the Employers' Unfair Acts always result, or nearly always result, in an impediment to a future election being better than the card majority that previously existed.

[01:01:51] Speaker 04:
And that's a policy... And the concern I have there is that the board explains its adoption of the new framework

[01:01:59] Speaker 04:
by making explicit reference to the fact the board hadn't been particularly successful before courts in trying to enforce bargaining orders, that when called upon to justify in front of a court, albeit with the difficult standard because there's deference given to administrative agency, the board has frequently struck out.

[01:02:21] Speaker 04:
And so it explains, so we need to change the rules.

[01:02:25] Speaker 04:
I'm more likely to think the courts are probably coming at it correctly.

[01:02:29] Speaker 04:
Why should I presume that the fact that this picture is so tough the board strikes out a lot that we should make this picture leave and put another picture in, put in a new framework where the board thinks it will be more successful?

[01:02:42] Speaker 00:
I think that's not a fair representation of the existing case law.

[01:02:45] Speaker 00:
There is a circuit split on what else we look at.

[01:02:48] Speaker 00:
Gissell 2 doesn't require the court to look at the passage of time, whether or not the employer representatives have left, whether or not there's turnover.

[01:02:58] Speaker 00:
But some of the courts have added that standard in, which has created an additional layer of analysis that was never intended by the Gissell decision itself.

[01:03:07] Speaker 01:
This court does not, though, right?

[01:03:08] Speaker 00:
This court is not there.

[01:03:09] Speaker 00:
This court has a strong wall of authority that the remedy chosen by the board, as long as it's not an abuse of discretion, is the appropriate one, and does not go behind that even on a gissual order.

[01:03:20] Speaker 01:
Thank you, counsel.

[01:03:26] Speaker 03:
I will be brief, but I'd like to pick up.

[01:03:28] Speaker 04:
We might work you over, so.

[01:03:29] Speaker 03:
Yeah.

[01:03:31] Speaker 03:
But you didn't charge your client for the extra time.

[01:03:34] Speaker 01:
I said I would give him three minutes.

[01:03:36] Speaker 03:
Well, I'd like to pick up where counsel left off, because the notion that where the change circumstance doctrine comes from is the order in Gissell that there must be reason to believe that the election cannot be fairly rerun when in the present.

[01:03:57] Speaker 03:
And that's why I'm not saying that you need to

[01:04:00] Speaker 03:
deal with the wall of the change circumstances doctrine, but you do need, and the board was required, to analyze the fact that, well, we were worried about chilling people, and they're waiting around.

[01:04:10] Speaker 03:
Well, more than half of the group has left.

[01:04:12] Speaker 03:
They're not.

[01:04:13] Speaker 03:
The people who are there now have no knowledge of anything that happened before.

[01:04:16] Speaker 03:
Forgie, the vice president who the board is accusing of things, he's long gone.

[01:04:22] Speaker 03:
Some of the supervisors are there, and there's every reason to think they would follow instructions, say, hey, you know, we don't particularly enjoy litigating for years over these things.

[01:04:30] Speaker 03:
Let's do it right this time.

[01:04:32] Speaker 03:
So all of that is present.

[01:04:34] Speaker 03:
But I really want to pick up on something that was said in a couple of situations about the administrative law judge and going in a different direction.

[01:04:42] Speaker 03:
You know, universal camera, another very seminal decision

[01:04:45] Speaker 03:
addresses this point and says that evidence supporting a conclusion is less substantial when an impartial experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the board's.

[01:05:02] Speaker 03:
And in another circuit we had that issue coming up and of course we had it in this circuit with the Gardner Mechanical overturn the board because they did not follow the recommendation

[01:05:13] Speaker 03:
of the or the finding holding of the administrative law judge so i think

[01:05:18] Speaker 03:
The very fact that the board has misstated what the ALJ held in the first place and then did not follow what he said and had changed some of his rulings in order to make the unfair labor practices seem worse than they actually were, that all contributes to the finding of the simple lack of substantial evidence.

[01:05:36] Speaker 01:
Well, the point of the opportunity for parties to file objections is because they may want the board to reach different findings of fact and conclusions of law.

[01:05:44] Speaker 01:
Isn't that correct?

[01:05:45] Speaker 01:
I mean, the whole point of the board review of the ALJ's recommended decision is that the parties get to file objections and ask the board to reach different findings of fact.

[01:05:55] Speaker 03:
No question.

[01:05:55] Speaker 03:
You are reviewing the board's decision, but that's exactly the issue that came up.

[01:05:59] Speaker 03:
is we were asked to do supplemental briefing in that case about what is universal camera mean and the conclusion wound up this is happens to be the new concepts uh... for living case on the third circuit the opinion came out said it means something it means what universal camera says it means you have less weight it's or increased burden on the board to justify itself which the board did not do here uh... and so the very finding of under the old the existing gissel order requirement

[01:06:27] Speaker 03:
With all deference to the rest of the world who is very much concerned about this new standard, under the existing standard, there should be no finding of a bargaining order in this case against this company.

[01:06:39] Speaker 01:
Before you run out of time, I would like you to address some of the other issues and claims that you raised in the case, in particular your challenge to the removal authority for the ALJ.

[01:06:52] Speaker 01:
Can you explain why you meet all the requirements for constitutional standing to raise that claim, in particular causation and redressability of harm?

[01:07:01] Speaker 03:
Yes.

[01:07:02] Speaker 03:
So where's the harm?

[01:07:04] Speaker 03:
The harm is, in our case, it's already satisfied.

[01:07:07] Speaker 03:
We have an administrative lodge that

[01:07:09] Speaker 03:
although he got that one part right, that he made findings adverse to the company.

[01:07:15] Speaker 03:
And he's sitting in an unconstitutional capacity.

[01:07:18] Speaker 03:
So a company like CEMEX in this situation has standing.

[01:07:21] Speaker 01:
But the court has distinguished between appointments that are improper and removal that's improper.

[01:07:28] Speaker 01:
And there's no contention here that the LJ was appointed improperly, is there?

[01:07:33] Speaker 03:
I've seen arguments distinguishing between that semantics.

[01:07:38] Speaker 03:
He's there.

[01:07:39] Speaker 03:
And his continued existence, his inability to remove him, that is what's rendered him unconstitutional.

[01:07:47] Speaker 03:
And I could see people saying, well, he's appointed improperly, or he's appointed properly to an improper position.

[01:07:54] Speaker 03:
I leave that to linguists.

[01:07:57] Speaker 03:
I can't go beyond that.

[01:07:59] Speaker 03:
The point is, he's unconstitutionally there.

[01:08:02] Speaker 03:
under the Jarkazee holding, which the Supreme Court left standing.

[01:08:07] Speaker 03:
Now the other part of Jarkazee goes to the other issue that came up in the other rebuttal.

[01:08:11] Speaker 03:
And I think what we would say to that is that while there does appear to be a violation of the Seventh Amendment, there's also the doctrine of avoiding constitutional issues where you can look at the statutory question.

[01:08:25] Speaker 03:
And under the statute, the law is clear now,

[01:08:29] Speaker 03:
under a clearer under the jar case a decision that the uh... uh... that the the

[01:08:35] Speaker 03:
types of damages that are being sought by the board in the Thrive Remedy are the types that the National Labor Relations Act did not authorize the board to do.

[01:08:46] Speaker 05:
But why, I did want to ask you about this.

[01:08:48] Speaker 05:
It's a make-whole order, and it's to bring a person who has allegedly suffered an injury based on the unfair labor practices, making them whole.

[01:09:01] Speaker 05:
That just sounds equitable.

[01:09:03] Speaker 05:
So why is it compensatory in your view?

[01:09:07] Speaker 03:
Because money damages, and this is in the words of Jarkesi, our classic example of non-equitable, of legal relief.

[01:09:15] Speaker 03:
They have gone beyond.

[01:09:16] Speaker 03:
In fact, all the statute says for the National Labor Relations Act is,

[01:09:20] Speaker 03:
affirmative action, including back pay.

[01:09:22] Speaker 03:
It doesn't say including costs of job searches or attorney's fees or various other consequential things.

[01:09:29] Speaker 03:
Those are damages.

[01:09:30] Speaker 03:
And if the Congress knew how to say more, in fact, that's what the Supreme Court said at Burke.

[01:09:35] Speaker 03:
They're talking about Title VII.

[01:09:37] Speaker 03:
And they said Title VII is based on National Labor Relations Act.

[01:09:40] Speaker 03:
And under both, they should not be allowed to get more than back pay.

[01:09:44] Speaker 03:
until they decided to change.

[01:09:48] Speaker 05:
But, George Casey, you know, security is fraud and the court said it's a very traditional common law type of case for fraud.

[01:09:57] Speaker 05:
And what's the analog to the National Labor Relations Act?

[01:10:02] Speaker 05:
Is there a common law analog to enforcement actions for unfair labor practices?

[01:10:09] Speaker 03:
Well, Title VII is not that different.

[01:10:11] Speaker 03:
That's what the court itself thought was common.

[01:10:15] Speaker 05:
But I'm specifically about the NLRA, though.

[01:10:17] Speaker 03:
Well, if you're referring to the, I mean, the public rights aspect is really hanging by a thread.

[01:10:24] Speaker 05:
I'm more interested in whether this even implicates the Seventh Amendment or whether this is in a line of cases where it's not about common law principles, but the board here is applying an equitable remedy in an area that does not usually come up in civil trials.

[01:10:42] Speaker 05:
That's what I'm concerned with.

[01:10:44] Speaker 03:
Yes, it is.

[01:10:45] Speaker 03:
And it does implicate the Seventh Amendment, though you don't need to reach that because you can find that it violates the board's statute, which if they wanted to include all these extras, whether you call them make whole, equitable, legal, you don't get so hung up on that kind of definition.

[01:11:02] Speaker 03:
And you can reach the common sense result, which is they were designed to award back pay.

[01:11:06] Speaker 03:
Well, they just do that and stick to that.

[01:11:09] Speaker 03:
I did want to add just one last thing, which is the rulemaking questions that came up, because under the law

[01:11:18] Speaker 03:
that they are required to do rulemaking, specifically because the facts are not in this case to impose this new standard.

[01:11:27] Speaker 03:
And we cited the case of Ford versus FTC that says that an agency is not creating a new standard in the form of adjudication because the facts underlying the new standard did not happen, therefore must proceed to make a change in the law by using rules of widespread application.

[01:11:46] Speaker 03:
which the board has been doing, for example, in the decertification context.

[01:11:51] Speaker 03:
They went to all the trouble to do a rulemaking there.

[01:11:53] Speaker 03:
They did it in the joint employer issue.

[01:11:55] Speaker 03:
And even what they used to do, used to, in the previous administration or even a few years ago, they would at least invite amicus briefs to say that they were considering some off-the-wall rule change through adjudication.

[01:12:09] Speaker 03:
They didn't do that here under one of the most off-the-wall, sorry, it's technical,

[01:12:13] Speaker 04:
Off the wall problems in the eyes of the holder.

[01:12:15] Speaker 03:
Yes, I guess so.

[01:12:16] Speaker 03:
But I will tell you that in the eyes of the regulated community, many of whom are listening to this today, there is great concern about the hopeless muddle.

[01:12:25] Speaker 03:
that has been created by this thing, without going through the formalities of rulemaking, the formalities being public notice and comment, to which they're entitled, and some assurance that they have considered all of the difficulties and impoundables that now are coming to light, that no one knows the answer until we see the next NLRB decision.

[01:12:47] Speaker 03:
General counsel can give guidance, but she didn't decide this issue.

[01:12:50] Speaker 03:
She didn't even ask for it.

[01:12:52] Speaker 03:
So with that last

[01:12:54] Speaker 03:
Comment, I think we would just ask that you rule in favor of the petitioner and deny enforcement of the board's order.

[01:13:01] Speaker 03:
Thank you.

[01:13:02] Speaker 01:
Thank you, Council.

[01:13:02] Speaker 01:
Thank you for your helpful arguments.

[01:13:04] Speaker 01:
This matter is submitted.