[00:00:00] Speaker 00:
Case number 23-1029 et al.

[00:00:04] Speaker 00:
CP Anchorage Hotel 2 LLC, doing things at the Milton Anchorage Petitioner versus National Labor Relations Board.

[00:00:11] Speaker 00:
Mr. Baskin for the petitioner, Ms.

[00:00:13] Speaker 00:
Isbell for the respondent.

[00:00:17] Speaker 04:
He's asking on behalf of the CP Anchorage Hotel, Hilton Anchorage, we'll call it the hotel while we're talking today.

[00:00:25] Speaker 04:
In this case, the board found that the hotel violated duty to bargain, even though the decision to renovate hotel rooms was conceded by everyone not to be a bargainable decision.

[00:00:39] Speaker 04:
And even though it's treated as a effects case, the union never requested bargaining despite being put on notice about what the board found quite the contrary.

[00:00:54] Speaker 02:
Remember the substantial evidence review and board recited the facts to support its conclusion.

[00:01:00] Speaker 02:
that the union had requested bargain case written by judge sent tell pass makes it clear that's not a heavy burden with respect to this kind of a fact the findings clearly on the record finding but not supported by substantial evidence your honor and that's the issue if I think that the boards majority's recitation of the facts from the record are enough to support substantial evidence that's the end of this right

[00:01:26] Speaker 04:
If you find on that one issue, because we've got four or five.

[00:01:30] Speaker 04:
I'm starting where you started.

[00:01:32] Speaker 04:
I started with that there's no distinction between decision and effects bar.

[00:01:37] Speaker 04:
The starting point is there was no decision that required bargaining.

[00:01:42] Speaker 02:
Not question that.

[00:01:43] Speaker 02:
OK, well, the board question.

[00:01:46] Speaker 02:
The board wrote an opinion that clearly accommodates the rules

[00:01:52] Speaker 02:
covering effects bargaining and they said and they made it clear take this only as effects bargaining the employer was deficient because the union didn't receive timely notice of the reservations and the union clearly did request bargaining and was rebuffed but the board actually posed that as if even if we did view it as the dissent you

[00:02:15] Speaker 04:
And in fact, they said there is no difference.

[00:02:18] Speaker 04:
Their fundamental premise was that there's no difference between decision bargaining and effects bargaining.

[00:02:23] Speaker 02:
In this case, it's fairly easy to see why they said that.

[00:02:27] Speaker 02:
They were essentially talking about a situation where no one, not the board majority or anyone else, is suggesting there was an obligation to bargain over the decision.

[00:02:36] Speaker 02:
no one is making that suggestion and so the board is essentially looking at a case about what is the obligation with respect to on the employer when you made a determination to go ahead and do this what do you have to do and the law is as the board recited it and it's fully supported once you know you're going to make that decision you have to give an indication to the union so that they have an opportunity to engage in it the least affects bargaining

[00:03:03] Speaker 04:
not when you make the decision.

[00:03:04] Speaker 04:
And that's the distinction between the decision bargaining and effects bargaining.

[00:03:09] Speaker 04:
If it's a bargaining over a decision, you have to talk to the union before you make the decision.

[00:03:14] Speaker 04:
So when the board said, and I quote, that the duty, the violation, and the remedy are the same, that it indicates a fundamental misunderstanding that I know, Judge Edwards, that you are well aware of the distinctions that led to First National Main, they should tell it to the Supreme Court if that is what they're

[00:03:31] Speaker 04:
view of the law is, and it undercuts their entire analysis.

[00:03:37] Speaker 02:
I think you'd like to get there, but I just don't see it in this record.

[00:03:42] Speaker 02:
I don't think the board's the least bit confused over the reality that this is not a fight over the union has a right to bargain over decision before it's made.

[00:03:53] Speaker 02:
That's not, in fact, the board recited saying once, I can't find the exact words now.

[00:03:58] Speaker 02:
Once the employer knows that it's going to pursue this, they have an obligation to give the union some reasonable notice of the decision that's going to be made so the bargaining can pursue.

[00:04:09] Speaker 02:
Not over whether the decision should be made, but over the effects.

[00:04:12] Speaker 02:
The board understood exactly what this case is, the majority anyway.

[00:04:16] Speaker 04:
We would have to disagree on what the board understood because we believe that it fundamentally undercut their entire decision.

[00:04:24] Speaker 05:
If nobody is saying that

[00:04:33] Speaker 05:
What is the difference between framing this as a decision case where they're bargaining over the post-renovation decision about how the wages should be structured in light of the new walk-in showers on the one hand, or an effects case in which they're bargaining over

[00:05:02] Speaker 05:
all of the effects of the restructuring, which is going to be, it's harder to clean the shower.

[00:05:07] Speaker 05:
Seems like either way you're bargaining over the same set of issues.

[00:05:11] Speaker 04:
Well, the big difference is that the employer in this case had no expectation that there was any effects, that there were any effects.

[00:05:19] Speaker 04:
And having put the union on notice repeatedly starting in March of the year before it happened, they were not notified that there were any effects to discuss.

[00:05:30] Speaker 04:
Whereas in a decisional bargaining situation, the employer has an obligation to determine

[00:05:36] Speaker 04:
what impact there is.

[00:05:38] Speaker 04:
Once the decision is made and before implementation, the employer notified the union that this was coming and this is happening in there.

[00:05:47] Speaker 04:
They give them the total specifications of the showers and all the rest.

[00:05:53] Speaker 05:
Wouldn't the employer have a duty

[00:06:00] Speaker 05:
in either framing to go to the union to talk about wages, right?

[00:06:07] Speaker 05:
If it's a decision case, you can't unilaterally change the terms of the collective bargaining agreement.

[00:06:15] Speaker 05:
If it's an effects case, you have to give notice of the effects.

[00:06:20] Speaker 05:
It seems practically very similar.

[00:06:25] Speaker 04:
Well, but with fundamental differences at the courts, going back to First National Maintenance and Transmarine, it affects the discussion that is required, the elements of the decision versus simply the effects.

[00:06:41] Speaker 04:
I mean, that's what First National Maintenance was all about.

[00:06:43] Speaker 04:
If it was just the same thing, there were layoffs that occurred in First National Maintenance.

[00:06:49] Speaker 04:
case on it.

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And if the board's attitude is true, then it would have been required to bargain about the decision to lay off.

[00:06:59] Speaker 04:
That is not what it was about.

[00:07:01] Speaker 02:
That is absolutely not what the board majority said in this case.

[00:07:05] Speaker 02:
The board majority is so clear.

[00:07:08] Speaker 02:
It's really beyond dispute.

[00:07:09] Speaker 02:
The board majority is absolutely clear that we understand the only fight here is whether the union got adequate notice

[00:07:18] Speaker 02:
of what the employer was going to do within its rights so that it could discuss the effects of that.

[00:07:25] Speaker 02:
And the board found that

[00:07:27] Speaker 02:
They did not receive timely notice.

[00:07:30] Speaker 02:
They will put off and put off and put off until you got to the fall.

[00:07:33] Speaker 02:
And then finally, the employer said something.

[00:07:35] Speaker 02:
They didn't know the number.

[00:07:37] Speaker 02:
They didn't know precisely what was going to be done.

[00:07:39] Speaker 02:
They didn't know that there might be effect on the quota, word quota.

[00:07:43] Speaker 02:
None of that was revealed to the union.

[00:07:45] Speaker 02:
The union kept asking.

[00:07:46] Speaker 02:
That's what the board majority said.

[00:07:47] Speaker 02:
They asked and asked and asked.

[00:07:49] Speaker 02:
They were above.

[00:07:49] Speaker 02:
Finally, they said,

[00:07:51] Speaker 02:
They ultimately said, we want to bargain.

[00:07:53] Speaker 02:
When?

[00:07:54] Speaker 02:
That's so totally consistent with the established law.

[00:08:00] Speaker 04:
No.

[00:08:01] Speaker 04:
It's just not what the record reflects.

[00:08:04] Speaker 04:
That's your argument is.

[00:08:06] Speaker 04:
Well, just saying.

[00:08:08] Speaker 02:
No, no.

[00:08:08] Speaker 02:
You're not doubting what I'm saying about the law, right?

[00:08:10] Speaker 02:
So the only question is whether the board was following that line of law, right?

[00:08:14] Speaker 04:
Except that for this, in your analysis, the board decided, and in difference from the administrative logic that you didn't talk about it, the board decided that the employer must have made a decision to increase the workload of people.

[00:08:30] Speaker 04:
That is not what the employer did.

[00:08:32] Speaker 04:
The employer decided to renovate completely within its rights to do that with no discussion.

[00:08:37] Speaker 04:
The employer did not think there were any impacts.

[00:08:41] Speaker 04:
And so the employer made no decision

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to increase people's workloads or to affect the bonuses, which, by the way, the administrative law judge found, there was no correlation in the end.

[00:08:55] Speaker 04:
There really was no impact.

[00:08:57] Speaker 04:
And so we have the lack of materiality and the lack of a significant change and the lack of knowledge or expectation by the employer that any of this was going to happen.

[00:09:07] Speaker 04:
And the union sandbagged it.

[00:09:09] Speaker 04:
That's all.

[00:09:10] Speaker 04:
They knew that it was coming.

[00:09:11] Speaker 04:
They never asked for bargaining.

[00:09:13] Speaker 04:
They just kept asking for information.

[00:09:15] Speaker 02:
I don't know.

[00:09:15] Speaker 02:
They don't have that right.

[00:09:17] Speaker 02:
I'm smiling because I just don't know what records you're reading.

[00:09:20] Speaker 02:
Well, that's not what the board said.

[00:09:22] Speaker 02:
You don't like what the board said.

[00:09:25] Speaker 02:
Well, I was going to the record judge.

[00:09:28] Speaker 02:
They're entitled to review on a substantial evidence standard.

[00:09:32] Speaker 02:
And in my view,

[00:09:34] Speaker 02:
I'm only speaking for myself.

[00:09:35] Speaker 02:
This is so within substantial evidence.

[00:09:37] Speaker 02:
It's just not terribly interesting.

[00:09:39] Speaker 02:
The board clearly made the findings that the law required.

[00:09:43] Speaker 02:
You don't like those findings, but they clearly made the findings.

[00:09:47] Speaker 02:
And when you read Judge Santel's opinion, I can't remember precisely which one it was, staff code, whatever, this clearly was enough.

[00:09:55] Speaker 02:
Clearly was enough for the board to survive a review here.

[00:09:58] Speaker 04:
I appreciate your candor on the subject.

[00:10:00] Speaker 02:
But you know, you're entitled to have

[00:10:02] Speaker 02:
Well, I would just submit.

[00:10:04] Speaker 02:
Yes, that's the way I read the record.

[00:10:07] Speaker 04:
But the substantial evidence test requires there to be record to support these findings that the board made.

[00:10:15] Speaker 04:
If I find them, you lose.

[00:10:16] Speaker 04:
And on that issue, yes, if you find substantial evidence in the record, but if you're looking in the right places,

[00:10:22] Speaker 04:
You won't see it.

[00:10:23] Speaker 04:
You will see a characterization by the board of the record and saying that the employer didn't give them enough information.

[00:10:32] Speaker 04:
But if the union is concerned about extra workload in a shower, then the first time they hear there's a wild shower coming, they know that there's an issue.

[00:10:42] Speaker 04:
And they should ask for discussion.

[00:10:45] Speaker 04:
All right, if they don't know it then they don't when they get that's in March, by the way, when they know that it's coming.

[00:10:50] Speaker 04:
But then they get the specifications, exact details, pictures, color pictures of all the room.

[00:10:56] Speaker 04:
There's a sign in the lobby that, you know, this wing is going to be closed.

[00:11:01] Speaker 04:
We're going to put showers in.

[00:11:02] Speaker 04:
And how can they possibly contend that the union was not on sufficient notice to actually request bargaining about these so-called effects, not even to let the employer know that they think there are these so-called effects until finally in November, they mentioned, and even then don't ask for bargaining.

[00:11:21] Speaker 04:
And by the way, when you talk about the record and did they request bargaining, I assume you read page 85 to 91 of the joint appendix, five full pages in which the company's lawyer asked the union vice president, did you ask for bargaining in March?

[00:11:39] Speaker 04:
Did you ask subsequently?

[00:11:41] Speaker 04:
And he candidly said, no, we did not do it.

[00:11:45] Speaker 04:
And it wasn't a trick question.

[00:11:47] Speaker 05:
Go ahead.

[00:11:48] Speaker 05:
You're arguing sufficiency as to notice the effects, right?

[00:11:57] Speaker 04:
Correct, but also their failure to request the bargaining to separate issues.

[00:12:03] Speaker 05:
We're treated this as a decision case.

[00:12:09] Speaker 05:
And you contest that.

[00:12:12] Speaker 05:
I think you assume you have a forfeiture problem with that.

[00:12:16] Speaker 05:
So we're thinking of this, assume we think of this as a decision bargaining case.

[00:12:22] Speaker 05:
Does any of that matter?

[00:12:24] Speaker 05:
If this is a decision bargaining case, they make the decision that the wages will stay the same even in light of the restructuring.

[00:12:37] Speaker 05:
And they, regardless of any notice issue, they have an obligation to bargain over that before they implement that.

[00:12:45] Speaker 05:
You know, change the wage structure or same wage structure in light of the change reconfigured rooms.

[00:12:53] Speaker 04:
Well, but it's a non-change here.

[00:12:57] Speaker 04:
You can't say that they have an obligation or duty to bargain about not making a change.

[00:13:02] Speaker 04:
And that seems to be what the union and the board, to some extent, is saying.

[00:13:07] Speaker 04:
It's a non-secretary.

[00:13:10] Speaker 04:
It's just not the right way.

[00:13:12] Speaker 04:
It's the flip side.

[00:13:13] Speaker 05:
So if we think of it as a decision case, your argument is there's no evidence of this second decision as to wages.

[00:13:23] Speaker 04:
There's no evidence that there was a decision at all as to making any change in the wages or their work load, which the testimony from the employers consistent throughout that they felt it would be lesser of a load, no more bathtubs to clean.

[00:13:40] Speaker 04:
And the glass and the shower curtains are equal and other aspects of it.

[00:13:44] Speaker 03:
But if we, as Judge Kansas is suggesting, if we view the case, as bizarre as it might be, as a decisional bargaining case, a decision to increase duties, aren't the only two questions, did you give notice before that decision was made?

[00:14:02] Speaker 03:
And two, was it a material change?

[00:14:05] Speaker 04:
You would also have to include that the employer have an expectation

[00:14:09] Speaker 04:
that that's what it was doing, that it was in creating.

[00:14:13] Speaker 03:
That's subsumed in the question of whether the change was material.

[00:14:17] Speaker 03:
And there's certainly, you have a substantial evidence challenge to these housekeepers testimony, but they've testified and the board found that it was a material change in their duties in terms of how much work to get done in a day.

[00:14:30] Speaker 03:
So I think a version of the question is, if we find the effects bargaining framework forfeited,

[00:14:39] Speaker 03:
You're not making a notice argument under the decisional bargaining framework, are you?

[00:14:45] Speaker 03:
You're just challenging the evidence of materiality.

[00:14:48] Speaker 04:
Well, we're challenging the concept, the notion that this was a challengeable decision, a bargainable decision.

[00:14:55] Speaker 04:
And that's where this expectation thing you're indicating, I understand what you're saying about it being subsumed in the materiality question, but we would submit it is subsumed in the decisional question.

[00:15:04] Speaker 04:
What is the decision they're making?

[00:15:06] Speaker 04:
They can't be able to have made a decision if they had no understanding that it was an event, that there was any impact.

[00:15:13] Speaker 04:
So they can't be said to have made the decision without an expectation that it was going to increase job duties and or reduce pay, which, again, continue to submit.

[00:15:28] Speaker 04:
The evidence does not show that it did either of those things.

[00:15:31] Speaker 04:
I think I've run into my rebuttal time, but happy to continue.

[00:15:38] Speaker 05:
Anything else?

[00:15:41] Speaker 03:
No.

[00:15:43] Speaker 03:
Okay, thank you.

[00:15:43] Speaker 03:
Thank you.

[00:15:49] Speaker 05:
You're from the board.

[00:15:50] Speaker 01:
Good morning.

[00:15:51] Speaker 01:
May I please the court, Kelly Isbell here on behalf of the National Labor Relations Board.

[00:15:57] Speaker 01:
My colleague has framed this as an effects bargaining case, but that issue was not presented to the board below.

[00:16:04] Speaker 05:
Could it be anything other than an effects bargaining

[00:16:09] Speaker 01:
Well, the board found that it was a decisional bargaining case, right?

[00:16:12] Speaker 05:
So on the complaint- There's an antecedent decision to renovate the hotel rooms.

[00:16:22] Speaker 05:
Everyone agrees that you don't have to bargain over that.

[00:16:26] Speaker 01:
Yes, Rob.

[00:16:27] Speaker 05:
And the salaries, the 17 rooms in eight hours rule

[00:16:35] Speaker 05:
It's just in the collective bargaining agreement.

[00:16:38] Speaker 05:
That is what it is.

[00:16:40] Speaker 05:
There's no separate decision to change that.

[00:16:43] Speaker 05:
The point is the decision to refigure the rooms has an effect on the maids' jobs going forward.

[00:16:53] Speaker 01:
I don't think on this record that there is any real question.

[00:16:57] Speaker 01:
that the amount of work required of those employees increased substantially when the new showers went in.

[00:17:05] Speaker 01:
The quota stayed the same.

[00:17:06] Speaker 01:
The quota cannot be.

[00:17:08] Speaker 05:
The quota is in the collective bargaining agreement, right?

[00:17:10] Speaker 01:
Not exactly, Your Honor.

[00:17:12] Speaker 05:
17 forms in eight hours, I thought it was.

[00:17:15] Speaker 01:
It's in a last, best, and final contract that was implemented after impact.

[00:17:22] Speaker 05:
Last, best, and final contract.

[00:17:25] Speaker 05:
It's not allowed to implement.

[00:17:28] Speaker 01:
Yes, there's no allegation that the implementation was.

[00:17:31] Speaker 05:
They can implement that.

[00:17:33] Speaker 01:
Correct.

[00:17:33] Speaker 01:
So it's not exactly a collectively bargained contract anymore.

[00:17:39] Speaker 01:
It's a unilateral imposition.

[00:17:42] Speaker 05:
Right.

[00:17:42] Speaker 05:
But that's still the rule that they're operating.

[00:17:46] Speaker 01:
That's still the rule they're operating under with the bathtubs.

[00:17:50] Speaker 01:
Right.

[00:17:50] Speaker 01:
So the quota was imposed at a time when all of the rooms had bathtubs.

[00:17:55] Speaker 01:
and it took a certain amount of time to clean these rooms, you could do your 17 rooms and you might be able to do a couple more and get this bonus.

[00:18:04] Speaker 01:
Once the glass showers went in, that workload increased and the quota was no longer exactly tied to the amount of work.

[00:18:14] Speaker 05:
Would you be making the same argument if

[00:18:18] Speaker 05:
17 rooms, eight hours was just a clear bright line rule that had been stated in a collective bargaining agreement.

[00:18:29] Speaker 01:
On these facts, I don't think so, Your Honor, because the amount of work increased.

[00:18:33] Speaker 01:
So an employer has to bargain, collective bargaining agreement or no, as long as there's a union, they have to bargain over any kind of increase in work duties, additional work duties, changes in work duties.

[00:18:45] Speaker 01:
They have to bargain about that.

[00:18:46] Speaker 05:
The fact that 17 they have to bargain over decisions that affect terms and conditions, or they have to bargain over effects of business decisions.

[00:19:00] Speaker 01:
Yes, right.

[00:19:01] Speaker 05:
It's just seems much more like the latter.

[00:19:05] Speaker 01:
So now we're talking in terms of the theory that we use.

[00:19:09] Speaker 05:
I'm not sure why it matters, but it just, the case has a very artificial feel to me if we are forced to think of an effects case as a decision case.

[00:19:26] Speaker 05:
Your argument, but what I keep coming back to in my mind is, you know, this is a Supreme Court case once that said, you can't bind a court to apply it.

[00:19:38] Speaker 05:
I mean, we're just thinking, we have to think about this case in a very artificial way.

[00:19:46] Speaker 02:
And I'm trying to- Why does this matter to you?

[00:19:49] Speaker 02:
In this particular- It seems to me we're talking about something of no particular consequence when you're thinking about the obligation to bargain.

[00:19:59] Speaker 01:
In this particular case, it does not matter.

[00:20:02] Speaker 01:
As the board explained, the duty, the violation.

[00:20:05] Speaker 02:
Everyone's conceding.

[00:20:06] Speaker 02:
There's no duty to borrow the decision to renovate.

[00:20:09] Speaker 02:
So that's off the table.

[00:20:10] Speaker 02:
It's off the table.

[00:20:11] Speaker 02:
So there are other things that we're talking about.

[00:20:13] Speaker 02:
The quota work and, you know, pay for the work you're doing and the consequences of the decision that the employer could make, all of which are normally within the realm of bargaining, at least as I understood it.

[00:20:27] Speaker 02:
Oh, big deal.

[00:20:28] Speaker 02:
They're within the realm, however you characterize them.

[00:20:31] Speaker 02:
I was actually kind of amused.

[00:20:32] Speaker 02:
I guess I had forgotten.

[00:20:34] Speaker 02:
I didn't even know we were fondling the effects bargaining, of course, because that, in some cases, has a big consequence.

[00:20:41] Speaker 02:
I don't know why this matters here.

[00:20:43] Speaker 02:
It doesn't matter in this particular case.

[00:20:45] Speaker 01:
There are cases where it matters.

[00:20:49] Speaker 05:
Let me ask you.

[00:20:50] Speaker 05:
I largely agree with that, except maybe for the threat point.

[00:20:56] Speaker 05:
If you think that there was this second decision to keep the same quota, notwithstanding the increased work, then when they go to the employees and say, this is the rule, you darn well better follow it,

[00:21:17] Speaker 05:
That's a threat.

[00:21:19] Speaker 05:
If it's an effects case, that's just the pre-established rule over wages, and they're allowed to make the employees stick to a rule that hasn't changed while they're bargaining.

[00:21:37] Speaker 01:
Help me out if I misunderstand, but I disagree.

[00:21:42] Speaker 01:
Even if it's an effects case, they have to bargain about the increased workload and the quota.

[00:21:53] Speaker 01:
They called these, I was going to say women, these employees, into a room, sit them down, make them sign this document,

[00:22:03] Speaker 01:
Under the threat of discipline, you must meet this quota, or we're going to discipline you up to and including firing.

[00:22:10] Speaker 01:
They had never done that before.

[00:22:11] Speaker 01:
So no matter how long that quota had been in effect, they have never called these employees into a room and made them sign a document threatening them with discharge.

[00:22:20] Speaker 01:
if they don't meet the quota.

[00:22:22] Speaker 01:
This threat came after the employees had told the employer, this is hard, it takes longer and it hurts.

[00:22:33] Speaker 02:
What's important here in answer to my colleague is that they did this without ever discussing with the union.

[00:22:42] Speaker 02:
the consequences that were going to flow from the decision.

[00:22:45] Speaker 02:
That is, the workload is going to change, and so what's in the collective bargaining agreement may look facially applicable, but it's not.

[00:22:53] Speaker 02:
There was a perfectly reasonable request the union could make to discuss that.

[00:22:59] Speaker 02:
Because even though the contract written to deal with a different circumstance is there,

[00:23:04] Speaker 02:
The union's claim is it's not the same circumstance and under established law, you have an obligation to discuss this with us, whether you call it effects or decisions.

[00:23:15] Speaker 02:
You have to discuss it to a point of impact, right?

[00:23:17] Speaker 01:
Yes.

[00:23:19] Speaker 01:
Short answer.

[00:23:20] Speaker 01:
Absolutely.

[00:23:20] Speaker 02:
That's my recollection of the law.

[00:23:22] Speaker 02:
You have an obligation to discuss the impasse.

[00:23:24] Speaker 02:
You may lose it, but you have an obligation to discuss it.

[00:23:29] Speaker 05:
Yes.

[00:23:29] Speaker 05:
Absolutely.

[00:23:34] Speaker 05:
discussing this and the housekeepers are cleaning the rooms.

[00:23:42] Speaker 05:
How are they paid?

[00:23:42] Speaker 05:
Under what terms are they paid at that?

[00:23:46] Speaker 01:
Well, literally in this case, I would have to think about that.

[00:23:55] Speaker 01:
If they were bargaining and

[00:24:00] Speaker 01:
that it might work itself out right I mean the issue is some of the some of the housekeepers asked not in terms of the money the issue some of the housekeepers asked not to have to do the showers because it was too hard and they those requests were granted so other housekeepers had to do the showers and the amount of money they would make would decrease while the amount of money the ladies who got out of the obligation

[00:24:23] Speaker 01:
They could get the so without looking at a compliance document and figure out who did which rooms when I don't know that I can answer.

[00:24:32] Speaker 02:
What would happen what would happen is happens what happens all the time the employer would say this is my position and then.

[00:24:40] Speaker 02:
The consequences will be, depending on whether you go to arbitration, go to grievance and arbitration and fight it out and say they don't have support for what they're now requiring, or you come to the board and say they failed to discuss this with us to an impasse over this issue.

[00:24:55] Speaker 02:
That's what would have happened.

[00:24:56] Speaker 02:
The employer would keep going on.

[00:24:58] Speaker 02:
The employers are not threatening as well.

[00:25:00] Speaker 02:
And that's your position is you can't threaten.

[00:25:03] Speaker 02:
You got to go through at least the effects bargaining first

[00:25:07] Speaker 02:
before you start threatening anyone, but we're paying you under what we think the contract says.

[00:25:12] Speaker 02:
And then if the union wants to file a grievance, they can, or they can come to the board.

[00:25:17] Speaker 01:
What he said.

[00:25:19] Speaker 03:
Council, under effects bargaining, isn't the obligation to bargain before the effect takes effect?

[00:25:25] Speaker 01:
You have to give pre-implementation notice an opportunity to bargain.

[00:25:29] Speaker 03:
Yes.

[00:25:30] Speaker 03:
So if the effects are already in place, if the housekeepers have already for months been cleaning these rooms,

[00:25:37] Speaker 03:
Isn't that?

[00:25:39] Speaker 01:
There's no room.

[00:25:40] Speaker 03:
Well, not for that.

[00:25:41] Speaker 03:
They had initiated the bargaining is your point.

[00:25:43] Speaker 03:
And maybe they just hadn't reached a new agreement yet.

[00:25:46] Speaker 03:
It could be a day.

[00:25:48] Speaker 01:
Well, in terms of the housekeepers work, it's never too late.

[00:25:52] Speaker 01:
I mean, they're still doing this hard work under a higher quota with the effects on the amount of money they can earn and on injuries.

[00:26:02] Speaker 01:
Remember, one lady was hurt her shoulders by doing this work.

[00:26:06] Speaker 01:
So it was never too late.

[00:26:09] Speaker 01:
So I think I maybe didn't quite understand.

[00:26:14] Speaker 01:
Even though the decision has been made or the effects have gone into effect, they can bargain now.

[00:26:21] Speaker 01:
I mean, even after the union was asking for its information and

[00:26:28] Speaker 01:
requesting information about training.

[00:26:29] Speaker 01:
There was no training provided.

[00:26:31] Speaker 01:
That could happen still.

[00:26:32] Speaker 01:
The tools they were given to clean, the ladies didn't like those tools, so there's bargaining that happened about the kind of materials they're using to clean the showers.

[00:26:41] Speaker 01:
All of that could happen, Your Honor.

[00:26:43] Speaker 03:
All right, so I have a different question about the effects versus decisional.

[00:26:47] Speaker 03:
I assume I agree with everything that's been suggested, that it's more natural to regard this as effects bargaining and that it doesn't make a difference to the outcome.

[00:26:56] Speaker 03:
But one thing it makes a difference to is what we're allowed to do as a court, right?

[00:27:01] Speaker 03:
Because we have these cases saying that 10E is a jurisdictional bar, so don't we

[00:27:07] Speaker 03:
To have an opinion that affirms and enforces on an effects bargaining theory, don't we have to resolve the question of whether the company adequately deserved this in front of the board?

[00:27:19] Speaker 03:
In other words, we have to resolve your forfeiture argument, don't we?

[00:27:23] Speaker 01:
To reach an effects bargaining decision, yes.

[00:27:28] Speaker 03:
So at least that question

[00:27:31] Speaker 03:
is important in terms of the difference of these two analyses.

[00:27:35] Speaker 03:
And I guess I think Judge Hattis's question was suggesting that this is a sort of a more fundamental legal error than we typically find forfeited.

[00:27:46] Speaker 03:
Do you agree with that?

[00:27:48] Speaker 01:
Well, I disagree.

[00:27:48] Speaker 01:
However, it might be easiest to conceive of the legal theories in this case.

[00:27:58] Speaker 01:
It was presented to the board as a decision.

[00:28:00] Speaker 01:
That's how the GC, the General Counsel, pled the complaint.

[00:28:03] Speaker 01:
That's how the parties argued it below.

[00:28:04] Speaker 01:
There is no indication in the hotel's exceptions or its brief and supportive exceptions indicating that it believed this was an effects bargaining case.

[00:28:13] Speaker 01:
And as I read their exceptions brief, they're arguing that it's a decisional case.

[00:28:18] Speaker 01:
It's how everyone understood it.

[00:28:20] Speaker 01:
In this particular case, it didn't really matter how the board decided the case because they have to bargain about the effect on the employees of that increased workload in the quota.

[00:28:31] Speaker 01:
The remedy was the same in this particular case.

[00:28:37] Speaker 02:
I may be misrecalling something, but I thought something in the company's papers from ALJ to the board clearly was suggesting

[00:28:49] Speaker 02:
that the issue really should be viewed as a matter of effects.

[00:28:53] Speaker 02:
And that explained why the board covered the whole framework when it, the board majority covered the whole framework when it decided the case.

[00:29:03] Speaker 02:
The company clearly, in my view, I don't think there's any forfeiture of anything here.

[00:29:07] Speaker 02:
Wasn't entirely clear what the ALJ was saying, but I thought the company then,

[00:29:13] Speaker 02:
said no they viewed the case slightly differently and the board in its decision dealt with both.

[00:29:20] Speaker 02:
Call it what you will there's a failure of bargaining is what the board said.

[00:29:24] Speaker 01:
The only thing I see in their papers below that suggests sex bargaining is in the post hearing brief to the administrative law judge.

[00:29:31] Speaker 01:
In their exceptions brief to the board their argument is

[00:29:37] Speaker 01:
that the general counsel had to prove that holding the employees the same quota when cleaning the new rooms was a material change in terms and conditions of employment.

[00:29:45] Speaker 01:
They don't use the word effects bargaining in their exceptions brief.

[00:29:48] Speaker 01:
Only in the brief to the ALJ, you have to raise it in your exceptions, your exceptions brief, your reply and support it somewhere in the papers you sent to board.

[00:29:57] Speaker 02:
Formals of substance, I mean, they're arguing it in effect, so to speak.

[00:30:01] Speaker 02:
I don't know how it can be missed, the thrust of their argument,

[00:30:05] Speaker 02:
includes claims about effects bargaining.

[00:30:09] Speaker 02:
But you all have suddenly, you're landing on magical words, and I've never even seen these in play much in all my years.

[00:30:16] Speaker 02:
They just accept effects bargain, which is a clear category.

[00:30:22] Speaker 02:
But these categorical distinctions here and suggesting they're meaningful, I just don't get it.

[00:30:27] Speaker 01:
In terms of when things are raised?

[00:30:28] Speaker 02:
Yeah, I mean, the employer clearly was suggesting the focus ought to be about effects.

[00:30:35] Speaker 02:
along with its other objections to what the ALJ was suggesting.

[00:30:39] Speaker 02:
And the board's decision is broad enough to cover both.

[00:30:43] Speaker 01:
Yes, to that last point.

[00:30:45] Speaker 01:
The board viewed what they raised in exceptions as not raising the effects bargaining argument.

[00:30:50] Speaker 01:
The board responded to member Ring in his dissent.

[00:30:54] Speaker 01:
However, the board has given you a full-throated analysis of the effects bargaining theory in this case.

[00:31:00] Speaker 01:
So if you agree it was fully raised and there's no forfeiture,

[00:31:04] Speaker 01:
then you can affirm the board's decision based on the effects bargaining theory that the board provided.

[00:31:12] Speaker 01:
I see I'm out of time.

[00:31:15] Speaker 05:
Okay, thank you very much.

[00:31:16] Speaker 05:
Thank you.

[00:31:25] Speaker 04:
brief.

[00:31:26] Speaker 04:
At the outset, the general counsel made an important concession.

[00:31:31] Speaker 04:
She conceded that this was decided by the board as a decisional bargaining case, notwithstanding our earlier dialogue about, you know, which one was it and notwithstanding whether that makes a difference, although we think it does.

[00:31:44] Speaker 04:
uh and that is an important fact that he did raise below and not only in saying i mean there was a bait and switch that went on the complaint started off saying that you've somehow done something

[00:31:57] Speaker 04:
decision, but by the time they amended the complaint and by the time the case was tried, it was all about the effects.

[00:32:03] Speaker 04:
And the judge's decision kind of dodged the issue.

[00:32:06] Speaker 04:
And I think that's why the board felt they had to come up with a new rationale, which is a mistaken rationale.

[00:32:13] Speaker 04:
And when that happens, the courts have said to overcome any tenee

[00:32:17] Speaker 04:
Concern, you should file, the employer should file a motion for reconsideration, which is exactly what we did.

[00:32:22] Speaker 04:
So we preserved the objection to treatment of this case as a decisional bargaining case.

[00:32:30] Speaker 04:
One important aspect of the distinction between decisional and effects bargaining is the trans marine case dealing with the remedy.

[00:32:37] Speaker 04:
because the board here ordered a rescission, which is totally undoable.

[00:32:43] Speaker 04:
You can't rescind the renovations.

[00:32:46] Speaker 04:
The employer hasn't changed the bonus structure, so there's nothing to rescind there other than telling the employees don't clean the showers, which is also obviously impracticable.

[00:32:57] Speaker 03:
Going to the forfeiture question, is there something in the

[00:33:00] Speaker 03:
exceptions to the ALJ's decision or your brief that you would direct us to to show that you were thinking of it as an effects bargaining case?

[00:33:09] Speaker 04:
Particularly in the reply brief, that's pretty much what it is the highlighted focus of it because that is what the ALJ was focused on.

[00:33:20] Speaker 04:
The reply in front of the ALJ?

[00:33:22] Speaker 04:
No, no, the reply to the board.

[00:33:24] Speaker 04:
The reply in the exceptions brief to the board.

[00:33:28] Speaker 04:
is all about discussion of the effects and the fact that it didn't have the impact.

[00:33:34] Speaker 04:
And that's really all there was to discuss the way the ALJ left it.

[00:33:40] Speaker 04:
So we would point you there.

[00:33:43] Speaker 04:
And would urge you to read again the testimony of the vice president because the vice president, they did not request a bargain.

[00:33:54] Speaker 05:
Thank you.

[00:33:55] Speaker 05:
Thank you very much.

[00:33:56] Speaker 05:
Case is submitted.