[00:00:00] Speaker 00:
Case number 24-1104 et al.

[00:00:04] Speaker 00:
Compañia Cerveceras de Puerto Rico, Inc.

[00:00:06] Speaker 00:
Petitioner versus National Labor Relations Board.

[00:00:09] Speaker 00:
Ms.

[00:00:10] Speaker 00:
Moreno for the petitioner, Ms.

[00:00:11] Speaker 00:
Sheehy for the respondents.

[00:00:15] Speaker 03:
Good morning.

[00:00:17] Speaker 03:
May it please the court?

[00:00:18] Speaker 03:
This is Giovanna Moreno on behalf of Petitioner and Cross Respondent Cerveceras de Puerto Rico.

[00:00:26] Speaker 03:
There are two key issues before this court.

[00:00:30] Speaker 03:
One of them relates to the board's inappropriate rewriting of an article of the applicable CBA, and the other one to the board's conclusion that an impasse is not valid because of post-impasse conduct, which is not the applicable standard according to this court's own precedent.

[00:00:50] Speaker 03:
We request this court to reverse the board's decision determining that Cerveceras violated the National Labor Relations Act.

[00:00:57] Speaker 03:
That decision has overreaching consequences that transcend this case.

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The decision holds that the board can ignore contractual agreements and that the impasse doctrine will never apply.

[00:01:09] Speaker 03:
And if you allow me to go straight to the union leave issue.

[00:01:13] Speaker 03:
First of all, there's no doubt that the board interpreted the CBA and that therefore at the novel standard of review based on ordinary principles of contract law applies.

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This court has recognized that when the parties agree to contractual provisions that limit their rights with regards to a term or condition of employment, the court will give effect to the plain meaning of the provision.

[00:01:40] Speaker 04:
But so the plain meaning of Article 34 seems to be that the union president has to request prolonged leave.

[00:01:49] Speaker 04:
How do we understand?

[00:01:51] Speaker 03:
Yes.

[00:01:52] Speaker 03:
Well, the request, it's our position that the article has to be interpreted in combination or complementary to the company policies.

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And there's an attendance policy and there's evidence on the record that shows that

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That set request refers to the employee's duty to submit the form that is attached to that attendance policy.

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So even though the word request is there, there's a specific definition for that procedure.

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And it's clear from the evidence.

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In this case, the employee, there's evidence, there's also evidence that the board in an independent case determined that if the employee failed to comply with the submission of the form, the managers had the authority to submit the form on behalf of the employee, which is actually what happened here.

[00:02:39] Speaker 03:
And it not only happened with the prolonged leave, it happened with the sporadic leave as well.

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The union president has a history of uncompliance with this attendance form.

[00:02:51] Speaker 03:
have fired the union president for failure to comply with the policy like would that have been consistent with the cba yes uh and that would have been the appropriate measure because there was a final warning that was given to the employee a couple of months before the activation of the leaf so the company preferred to just comply with the abide you know to the terms of the cba instead of terminating the employee will which will have definitely been the right they had the right to do so

[00:03:20] Speaker 01:
How does their prior practice play into all of this?

[00:03:23] Speaker 01:
That if you weren't requiring this request for leave, you know, when you're going beyond the 200 days with respect to your negotiating and that that had been kind of, you know, the course of dealing, if you will, how does that fit into what you are seeing essentially as mandatory contractual?

[00:03:40] Speaker 03:
Well, if we analyze the prior practice with respect to the employee's conduct, the prior practice reflects that the company had the authority to submit the form on behalf of the employee, right?

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So it's our position that the fact that there was no request form

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literally actually submitted by the employee does not implies that the company had no authority to do so.

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And with respect to the board's position that there was a past practice, you know, that because the prior year, which is a fact, the union president also exceeded the 200 hour caps and hours of sporadic leaf cap and the union prolonged leaf was not activated.

[00:04:25] Speaker 03:
It is our position that just one year

[00:04:28] Speaker 03:
does not establish a past practice, right?

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And there's evidence on the record, because there's a table with the list of all the union officials.

[00:04:36] Speaker 01:
But is there any evidence in the record that that had ever not been the practice?

[00:04:42] Speaker 03:
Well, the evidence on the record does not reflect that there was actually the practice.

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And it's our position, our respectful position, that it was a general counsel's burden to prove that there was actually a past practice.

[00:04:53] Speaker 03:
We're talking about 30 years of industrial relationship.

[00:04:56] Speaker 03:
And they only presented evidence of an exception of one year.

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And the other evidence on the record shows that any other, there was no other instance whatsoever on which any other employee had exceeded the sporadic leave cap.

[00:05:12] Speaker 01:
Okay, let's take a situation where you're beyond the 200 days and you're still negotiating and the union and the employer is still participating in those negotiations.

[00:05:23] Speaker 01:
And so then there's kind of that practice where there's not been a requirement for the leave form because you're still negotiating.

[00:05:30] Speaker 01:
You're not at the impasse and nobody's saying anything about going beyond the extended days.

[00:05:35] Speaker 01:
Is that fair to then cut off this practice with the leave?

[00:05:39] Speaker 03:
Well, the 200 hour caps did not apply to negotiations.

[00:05:42] Speaker 01:
Yeah, OK.

[00:05:43] Speaker 03:
It did not apply to negotiations.

[00:05:44] Speaker 03:
So it doesn't, you know, those those absences were excluded from this variety of 200.

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Yeah.

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So, and it's very important for us, context is very important, right?

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When we interpret a contract, we have to go to the party's intention.

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And that's part of the basic principles of contract law.

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And it has been recognized by this court that when doing the de novo review and going to whatever facts, factual determinations the board made, the analysis is based on the party's intention.

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And the reason for the party's negotiation of those leaves

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was that unlike most union organizations, all the officials, okay, all the board members of the union in this case are active employees.

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So the parties recognized that there was a need of a balance, okay, and that they had to identify a way of protecting the time to be used in union matters, but also protect the efficiency of the operation.

[00:06:46] Speaker 04:
Even if that is the case and we think that's the way Article 34 should be understood, was it reasonable for the company to not check with Luciano about whether he wanted to take those additional days as sick leave or vacation days?

[00:07:04] Speaker 04:
Maybe the company wasn't required to do that.

[00:07:09] Speaker 04:
That's reasonable to all that.

[00:07:12] Speaker 04:
And if so, would that be some evidence of animus by the company?

[00:07:16] Speaker 03:
Well, on the contrary, I think that terminating Luciano will have been definitely animus against him and the company preferred not to do so.

[00:07:25] Speaker 03:
So my answer will be that the company's way of managing the situation was in benefit of Luciano and that there was no need to actually ask him because he was fully aware of his union leave use and because it was agreed, it was negotiated and agreed.

[00:07:43] Speaker 03:
The article does not contemplate that whenever you reach the 200 hours, we have to sit down and analyze whatever you are going to do.

[00:07:50] Speaker 03:
The article is pretty clear.

[00:07:52] Speaker 03:
It says once the 200 hour cap

[00:07:55] Speaker 04:
So in the company's view, there was no adverse employment action because he could have been terminated.

[00:08:03] Speaker 04:
Instead of being terminated, he was placed on prolonged leave.

[00:08:06] Speaker 03:
Correct.

[00:08:07] Speaker 03:
And not only that, how would you say that complying with the terms of the CBA is an adverse employment action?

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That would be contrary to the National Labor Relations Act.

[00:08:17] Speaker 01:
How about the testimony from the HR person who said it was a disciplinary action?

[00:08:24] Speaker 03:
Agnes Escalera, no, she did not say, with all respect, she did not testify that this was a disciplinary action.

[00:08:29] Speaker 03:
She actually reiterated that the leave was never imposed and that the company was only adhering to the strict language of the CBA.

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that she said that he had a previous warning dated August 2021, and that he was warned that any subsequent violations with the company's policies would entail a termination.

[00:08:50] Speaker 03:
That's what she said.

[00:08:51] Speaker 03:
But this was not an adverse employment action, and there's no testimony as to that.

[00:08:55] Speaker 03:
There's no evidence on the record as to that.

[00:08:57] Speaker 03:
That was just the board's incorrect interpretation.

[00:09:00] Speaker 01:
And what do you argue is the status quo?

[00:09:02] Speaker 03:
The status quo was the CBA.

[00:09:06] Speaker 03:
A past practice, and there's case law, and I can gladly submit the authorities through a 28-J letter, but I found case law is not in the briefs, that expressly says that past practice cannot alter the clear language of a contract.

[00:09:22] Speaker 03:
So our position is that whatever the board analyzed with that prior year, that is not by definition a past practice because it was just one year exception, cannot even be considered because there's a specific language, contracted language that was a status quo.

[00:09:39] Speaker 05:
And what about you find?

[00:09:43] Speaker 01:
Go ahead, Judge Rogers.

[00:09:44] Speaker 05:
Did you find authority from this court?

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regarding the impact of past practice.

[00:09:51] Speaker 05:
The response to Judge Child's question.

[00:09:54] Speaker 05:
I don't know many cases from this circuit.

[00:10:00] Speaker 05:
I may not know all of them.

[00:10:05] Speaker 03:
No, Your Honor.

[00:10:05] Speaker 03:
I did not find cases from this circuit.

[00:10:09] Speaker 03:
I did find from the Seventh Circuit.

[00:10:11] Speaker 05:
Thank you.

[00:10:15] Speaker 03:
So,

[00:10:17] Speaker 03:
And if we can go to the impasse case, well, it's our position that there's no doubt that the article that was being negotiated, Article 27, was critical, vital to both parties.

[00:10:33] Speaker 03:
That's actually a determination.

[00:10:35] Speaker 03:
And basically the board held that because the parties engaged in different negotiations and several articles were

[00:10:44] Speaker 03:
executed after the declaration of impasse, then there's no impasse, right?

[00:10:48] Speaker 03:
But it's our position that COMAD, which is the board's president, recognizes that after the declaration of a single issue impasse, the parties can definitely have negotiation sessions.

[00:11:01] Speaker 03:
And this court already had, you know, ruled upon this and had a similar situation in a case named Airy.

[00:11:09] Speaker 03:
Manufacturing, in which the court said that what had to be analyzed was that if there was any evidence on the record that the union actually had a new, and this court said new, proposal regarding the article on which the impasse was declared.

[00:11:27] Speaker 03:
In this case, there was none.

[00:11:29] Speaker 03:
There was no further negotiations regarding Article 27.

[00:11:33] Speaker 03:
And in fact, there were, you know, we cannot deny that there were movements after the declaration of impasse, but the standard that this court recognized in Laurel is that what is important is the pre-impasse conduct and not the post-impasse conduct.

[00:11:50] Speaker 04:
Ms.

[00:11:50] Speaker 04:
Marino, the company is not arguing that there was an overall impasse, only that there was a single issue impasse in the article.

[00:11:57] Speaker 04:
That's correct.

[00:11:59] Speaker 04:
That's correct.

[00:12:01] Speaker 05:
Oh, is that consistent with the record?

[00:12:05] Speaker 03:
It is consistent with the record.

[00:12:06] Speaker 03:
The record shows that after the declaration of impasser work, there was no further movement.

[00:12:11] Speaker 05:
Well, the council, the record shows that there were several articles on which agreement had not been reached.

[00:12:21] Speaker 05:
So I want to know why you view this as a single issue impasse.

[00:12:27] Speaker 03:
Oh, because there were still articles that were not in their final, you know, best and final offer.

[00:12:32] Speaker 03:
They were pending.

[00:12:34] Speaker 03:
And that's precisely the factual situation in ARRI.

[00:12:39] Speaker 03:
In ARRI, the union said, or the general counsel said, there cannot be a valid impasse because there's a lot of different articles that we have not even started negotiations on.

[00:12:53] Speaker 05:
That doesn't matter.

[00:12:55] Speaker 05:
What's your citation for Airy?

[00:12:57] Speaker 05:
I'm looking at your brief.

[00:12:59] Speaker 03:
It's Airy Manufacturing.

[00:13:01] Speaker 03:
In my notes, I only have the year, which is 2012.

[00:13:06] Speaker 03:
But it's Eerie Brush.

[00:13:07] Speaker 03:
Yes, that's correct.

[00:13:10] Speaker 05:
What is the citation?

[00:13:12] Speaker 05:
If you allow me.

[00:13:14] Speaker 05:
No, did Judge Rao, she found the citation?

[00:13:16] Speaker 04:
I think that the name of the case is Eerie Brush and Manufacturing.

[00:13:20] Speaker 04:
Yes, that's it.

[00:13:22] Speaker 04:
Thank you.

[00:13:23] Speaker 04:
I'm not sure I have the site.

[00:13:27] Speaker 05:
Is that a case from this circuit or the Seventh Circuit?

[00:13:31] Speaker 05:
It is from this circuit.

[00:13:33] Speaker 05:
Yes, it is.

[00:13:34] Speaker 05:
All right.

[00:13:34] Speaker 05:
And how do you spell the first word, Aerie?

[00:13:38] Speaker 05:
It's E-R-I-E.

[00:13:40] Speaker 05:
Thank you.

[00:13:42] Speaker 03:
You're very welcome.

[00:13:45] Speaker 03:
So our position is that, as explained and since the board departed not only from the applicable legal standards from this court and from the... Excuse me.

[00:13:54] Speaker 05:
I don't see that case cited in your brief.

[00:13:57] Speaker 05:
Have I missed it?

[00:13:59] Speaker 03:
I think it's in my reply brief.

[00:14:06] Speaker 03:
I'm sorry for the...

[00:14:17] Speaker 05:
Oh, Council, that's all right.

[00:14:42] Speaker 05:
I can look it up after oral arguments.

[00:14:45] Speaker 05:
I just wanted to be clear whether it was in your opening brief.

[00:14:48] Speaker 03:
It's 700.

[00:14:49] Speaker 03:
I found the citation.

[00:14:51] Speaker 03:
It's 700, feather of third, 17 from year 2012.

[00:14:56] Speaker 03:
Thank you.

[00:14:58] Speaker 03:
Very welcome.

[00:15:00] Speaker 03:
So I was just, you know, reiterating our request that this court reverse the board's decision because it's our position that it not only departed from the applicable precedent, it departed from the applicable case law from this court, and it failed to provide reasonable explanations for that departure from its precedent.

[00:15:19] Speaker 03:
And it also ignored the evidence on the record as a whole.

[00:15:25] Speaker 04:
Thank you.

[00:15:28] Speaker 04:
I'll give you a couple minutes in rebuttal.

[00:15:53] Speaker 02:
Morning, Your Honors.

[00:15:54] Speaker 02:
May it please the court, Barbara Sheehy for the National Labor Relations Board.

[00:15:59] Speaker 02:
I'm going to make a couple of points under both of the topics that you were just discussing with my friend across the aisle.

[00:16:05] Speaker 02:
I'll start with the contract issue.

[00:16:10] Speaker 02:
So a couple of things first.

[00:16:12] Speaker 02:
I'm going to start with the standard review.

[00:16:13] Speaker 02:
The board's position is that it's not a de novo standard here because it's not purely contract interpretation.

[00:16:22] Speaker 02:
If you follow the board's analysis, what they did was first they find that there's a past practice that is inconsistent with the terms of the contract.

[00:16:29] Speaker 02:
So it's not purely looking at what does the contract say.

[00:16:32] Speaker 02:
There is also the element of is there substantial evidence in the record to show that the parties were engaged in a particular kind of practice.

[00:16:39] Speaker 02:
So I think it does a disservice to say that this is purely a de novo standard of review.

[00:16:43] Speaker 04:
If you were to disagree with that.

[00:16:45] Speaker 04:
past practice, which the board found based on one year, then would it be de novo review of Article 34?

[00:16:50] Speaker 02:
I still don't think so.

[00:16:52] Speaker 02:
But I want to say, I don't want to agree fully with that question, because I don't think it's fair to characterize the board's finding based on a single year.

[00:17:01] Speaker 02:
I think what the court needs to look at is it was a series of events over the course of two years.

[00:17:07] Speaker 02:
Luciano didn't become union president until January of 2019, when the contract started in September 2018.

[00:17:14] Speaker 02:
There is not another contract in the record, so I do not know if this is carryover language.

[00:17:20] Speaker 02:
So we have the 2018 to 2021 contract that was extended into 2022.

[00:17:24] Speaker 02:
Luciano comes on board in January 2019.

[00:17:28] Speaker 02:
And then there's nothing in the record that how many hours he used.

[00:17:32] Speaker 02:
There are no time sheets.

[00:17:33] Speaker 02:
Then we know in 2020, beginning in April, or sorry, this is the 2020 to 21 timeframe.

[00:17:41] Speaker 02:
In April 23rd of 2021, he gets a letter from Escalera saying, you've hit 192 hours.

[00:17:48] Speaker 02:
Please verify and confirm your hours.

[00:17:50] Speaker 02:
and send us any corrections.

[00:17:52] Speaker 02:
Then on May 4, he gets a follow-up saying, we made a mistake.

[00:17:55] Speaker 02:
You're actually at 200 hours.

[00:17:56] Speaker 02:
We forgot to include March 17th.

[00:17:58] Speaker 02:
If you need more time, you ought to request it.

[00:18:00] Speaker 02:
You should request it.

[00:18:02] Speaker 02:
August 5, this is still all in that contract.

[00:18:04] Speaker 02:
This is a series of events showing repeated, repeated instances by this employer of accepting his leave request.

[00:18:14] Speaker 04:
The fact that an employer sort of by grace gives someone more time doesn't necessarily mean they've changed the terms of the contract.

[00:18:24] Speaker 04:
I mean, what about the Cecil case from 2002 from the circuit, which is almost directly on all fours?

[00:18:30] Speaker 02:
I'll be honest, I'm not familiar with that case.

[00:18:32] Speaker 02:
Is it in the briefs?

[00:18:35] Speaker 04:
It is not in the briefs.

[00:18:36] Speaker 04:
It is the law of the circuit.

[00:18:38] Speaker 02:
Sorry, I'm not familiar with that case.

[00:18:40] Speaker 02:
I'm happy to submit something later that wasn't drawn to my attention.

[00:18:44] Speaker 02:
I didn't find that case.

[00:18:45] Speaker 02:
It's not been argued that that was inconsistent.

[00:18:47] Speaker 04:
Well, it's a case in which an employer had one year where they gave

[00:18:52] Speaker 04:
you know, a certain amount of time, and then the following year refused to give that time.

[00:18:57] Speaker 04:
The board said, oh, the employer changed its practice, and our circuit said, no, it didn't, you know?

[00:19:03] Speaker 04:
And getting away with, I think Judge Williams uses the term lavish leave in one year doesn't mean that an employer has changed the terms of a contract.

[00:19:12] Speaker 02:
I mean, respectfully, again, I don't know the facts of that case, but I'm going to, I think,

[00:19:19] Speaker 02:
I think I'm going to argue, even without knowing the facts of that case, but if there was a single one-off in that case, that is very different from an employer from April 2021 till April 2022 continuing not to take action against somebody.

[00:19:32] Speaker 02:
So whether he has lavish leave, I think is sort of beside the point.

[00:19:36] Speaker 02:
How were they treating his requests for additional leave?

[00:19:40] Speaker 02:
And the answer to that is inconsistent with the contract.

[00:19:42] Speaker 02:
Whether it was out of benevolence or they didn't want to manage, I don't know.

[00:19:46] Speaker 04:
If an employer doesn't

[00:19:47] Speaker 04:
enforce the terms of a of a cba in a way that is detrimental to an employee are they then always going to be bound by those terms because that seems to be the position of the board and that strikes me as quite remarkable absolutely not this contract was in a post-expiration period they could note you can't see if they maintain the status quo the status quo was read then in the context of

[00:20:09] Speaker 02:
both the contract and the party's practice, they could have during these contract negotiations submitted a change to the article.

[00:20:16] Speaker 02:
You are not bound by that.

[00:20:17] Speaker 02:
You can submit.

[00:20:18] Speaker 04:
Why should they submit a change to it?

[00:20:20] Speaker 04:
It's still, it's still in effect.

[00:20:22] Speaker 02:
If they're not happy, but your honor was suggesting that there was no recourse for this employer.

[00:20:30] Speaker 02:
And I'm suggesting that to bring the practice.

[00:20:32] Speaker 04:
They have a CBA, why should they, I mean, I don't really understand the board's position here.

[00:20:39] Speaker 04:
I mean, if there's a CBA in place, why can't an employer enforce those terms?

[00:20:43] Speaker 02:
Because the law says otherwise.

[00:20:45] Speaker 02:
The law says that if you have a collective bargaining agreement provision and you enforce that, that's fine.

[00:20:52] Speaker 02:
If they had continued a consistent practice, we could fight about whether the contract entitled them to the reading that they have.

[00:21:00] Speaker 02:
But let's suppose they didn't change what they were doing.

[00:21:03] Speaker 02:
That's one thing, but you can't, it's not fair to employees or to either party to have a contract provision, but a practice completely inconsistent with that.

[00:21:11] Speaker 02:
And then all of a sudden saying, we're going to go back to something we've never done before.

[00:21:16] Speaker 02:
You have to, because the employee starts to rely on that or a party start to rely on that.

[00:21:20] Speaker 02:
So the issue with that is you can bring it in line with the contract,

[00:21:24] Speaker 02:
But you have to do it the right way.

[00:21:25] Speaker 02:
You can't immediately put somebody on six months leave without pay and say, well, because we could have fired you, this wasn't all that bad.

[00:21:31] Speaker 02:
This guy went without pay for six months.

[00:21:33] Speaker 02:
I don't think that's a trivial matter.

[00:21:36] Speaker 02:
And I find it disrespectful, in fact, that the company could suggest that because they could have fired him, that they were actually treating him in a positive way.

[00:21:47] Speaker 02:
It's disrespectful.

[00:21:48] Speaker 04:
I mean, the board has to find that there was animus by the employer.

[00:21:52] Speaker 02:
They did.

[00:21:53] Speaker 02:
They relied on three different factors.

[00:21:55] Speaker 02:
They relied on the timing.

[00:21:56] Speaker 04:
I know that, but to say that's disrespectful, I mean... No, I'm sorry.

[00:21:59] Speaker 02:
The suggestion that it wasn't any big deal, we could have fired him, and all we did was take and suspend him for six months.

[00:22:06] Speaker 02:
I think that is a disrespectful position, and I think it trivializes... I think it's...

[00:22:13] Speaker 01:
You have plenty of employment law out there that says we don't have to like our employees.

[00:22:17] Speaker 01:
We just can't do things that are illegal.

[00:22:19] Speaker 01:
And so saying disrespectful, we want to get to the legality.

[00:22:23] Speaker 02:
Oh, sure.

[00:22:24] Speaker 02:
Very good.

[00:22:24] Speaker 02:
And the board doesn't talk about this.

[00:22:26] Speaker 02:
I'm saying the suggestion in the brief, the cavalier suggestion in the brief, that this wasn't any big deal because we didn't fire him.

[00:22:32] Speaker 02:
I don't.

[00:22:34] Speaker 02:
I think that that is not a wise.

[00:22:37] Speaker 02:
Anyway, I'm only speaking to that.

[00:22:39] Speaker 02:
But no, what they did is illegal under board law.

[00:22:42] Speaker 04:
The point is not necessarily about whether it's cavalier.

[00:22:45] Speaker 04:
The point is if they could have taken a more severe action under the CBA, i.e.

[00:22:51] Speaker 04:
terminate him for failing repeatedly to comply with the attendance policy, then the action that they did take was much less than termination.

[00:23:01] Speaker 04:
So that is arguably some evidence of lack of animus.

[00:23:06] Speaker 04:
Or maybe it's not an adverse employment action at all.

[00:23:09] Speaker 02:
I think with respect to the question about whether there's animus, we put this in the brief, that just because you take a lesser action than what you could have done,

[00:23:18] Speaker 02:
sort of in the same vein as I didn't weed out all the union adherents, I only fired two or three of them, doesn't negate that you can still act with animus even if you didn't bring down the hammer fully.

[00:23:29] Speaker 02:
It doesn't mean that just because you did something that was lesser than what you could have done, it doesn't negate the animus.

[00:23:35] Speaker 02:
And there's a series of cases that speak to sort of in a comparison standpoint in terms of, like I said, weeding out union adherents.

[00:23:43] Speaker 02:
Just because you didn't fire everybody doesn't mean that you still didn't engage in animus.

[00:23:48] Speaker 05:
at some point made the, or maybe it was ALJ made the point that the employer was saying one of the problems here was the ALJ and the board were relying only on two years.

[00:24:10] Speaker 05:
And the response, as I recall by the board was the employer never indicated

[00:24:18] Speaker 05:
any contrary contact in any other years by it.

[00:24:27] Speaker 05:
So it's not that the employer has the burden as distinct from the burden of the general counsel to the board, but it's not a situation where the board was unaware of the position that was being taken by the agency and yet

[00:24:48] Speaker 05:
Even now, we don't have any argument much less proffer that things were done differently.

[00:24:57] Speaker 05:
Or I think counsel referred to the 32 years the company has been in operation.

[00:25:06] Speaker 02:
I think that's an accurate representation of what the board, of the evidence in this case.

[00:25:11] Speaker 02:
Yes, that there is no evidence and there's testimony saying we've never done this before.

[00:25:16] Speaker 02:
We've never imposed the leave before.

[00:25:18] Speaker 02:
And then again, we have a series of events from starting in April, 2021 of acquiescence on the part of the employer not to put somebody on leave as soon as they hit the 200 hours.

[00:25:28] Speaker 02:
He exceeded his leave in 2021 by 28 hours with their approval.

[00:25:33] Speaker 05:
Then even in December when he was... That as far as this case is concerned, there is nothing in the record about the employers

[00:25:46] Speaker 05:
practice for 32 years, or let me limit it to the years that the contract vision that we're talking about, Article 27, was in effect.

[00:25:58] Speaker 02:
The only evidence in the record relates to this contract, which starts September 5th, I believe, of 2018.

[00:26:04] Speaker 02:
I don't believe there's a prior CDA in the record.

[00:26:08] Speaker 02:
Not that I'm aware of, at least.

[00:26:09] Speaker 02:
So I don't know if this is a roll over pollution.

[00:26:11] Speaker 05:
In your cannabis argument, you're taking

[00:26:16] Speaker 05:
what the board said in terms of no prior notice, no opportunity to bargain on this, that it came shortly after the president had negotiated this settlement without the board being involved in any way.

[00:26:44] Speaker 05:
What else do you view as strong evidence of animus?

[00:26:48] Speaker 02:
So the three parts of the board rely on the timing, which Your Honor just identified, the past practice, the departure from past practice, which we've talked about.

[00:26:55] Speaker 02:
And then the third aspect of it is the background conduct, prior conduct tending to show animus.

[00:27:03] Speaker 02:
And the board, in that instance, relies on the employer's testimony during the hearing that in the summer of 2021, I get some of my dates mixed up.

[00:27:12] Speaker 02:
But it's July of 2021, the employer, which is what led to the settlement agreement, the employer unilaterally changed the work hours of the workers.

[00:27:23] Speaker 02:
And it's the testimony of the management officials that the board relies on there.

[00:27:30] Speaker 02:
They acknowledge that there's an effective collective bargaining agreement.

[00:27:33] Speaker 02:
They acknowledge that the hours of work in that collective bargaining agreement were unilaterally changed.

[00:27:38] Speaker 02:
So while that was, but those allegations, those events then were looked at as background information or background evidence of further animus.

[00:27:47] Speaker 02:
So it's those three.

[00:27:48] Speaker 02:
It's the timing, past practice and the other conduct, the prior conduct in the summer of 2021 in this case.

[00:27:58] Speaker 04:
On the impasse question,

[00:28:00] Speaker 04:
The circuit has a number of precedents that say, you know, if one party, you know, which is usually the union, disagrees to whether there's an impasse, that is not dispositive.

[00:28:10] Speaker 04:
Mike sells potato chips.

[00:28:12] Speaker 04:
So I'm not sure how the board's, I mean, the board seems, and I've seen this in a number of cases over the last couple of years, seems to be trying to push the envelope on that question.

[00:28:23] Speaker 04:
And, you know, basically concluding that if one party disagrees with an impasse, there's no

[00:28:30] Speaker 04:
impasse.

[00:28:31] Speaker 04:
And how would that principle be consistent with our case law?

[00:28:35] Speaker 02:
So I don't in this case, I don't I don't think that that's what the board did.

[00:28:40] Speaker 02:
Whether the board is going that way, I don't.

[00:28:42] Speaker 02:
I don't want to speak to what the board's doing, but I'm saying, in this case, I don't think it is simply the union saying, we don't think we're at impasse.

[00:28:49] Speaker 02:
And the administrative law judge does a nice job, I think, in laying out what happened.

[00:28:54] Speaker 02:
So it wasn't just the union saying, we don't think we're at impasse.

[00:28:57] Speaker 02:
We stand ready to bargain.

[00:28:58] Speaker 02:
The administrative law judge lays out what happened.

[00:29:02] Speaker 02:
August 18, for instance, they were still bargaining.

[00:29:05] Speaker 02:
The party signed two more articles.

[00:29:07] Speaker 02:
They signed Article 7, Article 26.

[00:29:10] Speaker 02:
The employer then also continues to bargain.

[00:29:12] Speaker 02:
So this isn't just the union continuing.

[00:29:13] Speaker 04:
But that just goes to whether there is an impasse on the contract as a whole, which the company's not even arguing, right?

[00:29:21] Speaker 04:
But the fact that they're still negotiating on the other articles doesn't mean there wasn't a single issue.

[00:29:27] Speaker 02:
No, I'm sorry.

[00:29:27] Speaker 02:
I think under CalMAT, it does.

[00:29:29] Speaker 02:
CalMAT has three prongs, and you have to satisfy all three.

[00:29:31] Speaker 02:
The second, the board doesn't take issue with.

[00:29:33] Speaker 02:
The second is the issue over which they went to impasse on.

[00:29:37] Speaker 02:
So the work schedules was critical.

[00:29:39] Speaker 02:
That's not on the table.

[00:29:40] Speaker 02:
The first one is, though, that you have to have a good faith impasse as to the specific article that you implemented.

[00:29:47] Speaker 02:
The board finds, in this case, you didn't have a good faith impasse.

[00:29:51] Speaker 02:
We could talk about what that is in a second.

[00:29:53] Speaker 02:
But the third prong, which I think is what your question is getting at, is that you also have to show as the employer, you have to do all three.

[00:29:58] Speaker 02:
So not failing to show one is fatal.

[00:30:01] Speaker 02:
The third one that you have to do is show that the impasse over the article that you unilaterally implemented led to an overall breakdown in negotiations, the entire negotiations, and that there was no aspect.

[00:30:12] Speaker 04:
You can't interpret the third prong of CalMet to swallow the fact that there can be a single issue impasse.

[00:30:19] Speaker 04:
However you interpret that third prong, it can't be basically the third prong is to have a single issue with impasse, you must have an overall impasse.

[00:30:28] Speaker 04:
And that does seem to be what the board is doing here.

[00:30:31] Speaker 02:
So I disagree on this one, whether other cases are sort of suggesting that I don't know.

[00:30:37] Speaker 02:
But I think on this one, the idea that there was no aspect over which the parties could have made progress is belied by both parties here, both the union and the employer.

[00:30:50] Speaker 02:
still is trying to bargain over sick leave and vacation time, linking those two articles saying, if you give us this one, we'll do this one.

[00:30:56] Speaker 02:
The union counters and says, if you give us article 17, Christmas bonus, we'll do holidays.

[00:31:02] Speaker 02:
Article 19, I may have those flipped.

[00:31:03] Speaker 02:
But they started linking and they start counter countering.

[00:31:06] Speaker 02:
And then there are additional articles that get signed.

[00:31:09] Speaker 04:
That's fine.

[00:31:10] Speaker 04:
That just means there's not an overall impasse.

[00:31:12] Speaker 04:
None of that evidence seems to go to whether negotiating on some of those matters could have, you know, unlocked the impasse on the work schedules on Article 27.

[00:31:23] Speaker 04:
So so it does seem to me that reasoning you're mentioning all the other articles on which they were negotiating seems to suggest you can't have a single issue impasse if you're making progress on any of the other provisions.

[00:31:36] Speaker 04:
And that's to basically say you can never have a single issue impasse and that is not the law of

[00:31:40] Speaker 04:
the board, or it hasn't been in the past, and it's not the law of the circuit.

[00:31:43] Speaker 02:
And that's not the board didn't change CalNet.

[00:31:46] Speaker 02:
It relies on that in this case.

[00:31:48] Speaker 04:
But I understand it's not explicitly changing it, but the reasoning of it seems to run in a direction that would undermine the possibility of ever having a single issue impasse.

[00:31:59] Speaker 02:
And respectfully, I think the board properly applied Prom 3 here to show under its case law that if there is progress to be made on other articles,

[00:32:10] Speaker 02:
that you cannot have a single issue impasse then.

[00:32:14] Speaker 04:
What is a single issue impasse then?

[00:32:16] Speaker 04:
Then you're just saying a single issue impasse is a complete impasse.

[00:32:19] Speaker 04:
That's exactly what you're saying.

[00:32:21] Speaker 04:
If you're making progress on any other articles, you can't have a single issue impasse.

[00:32:25] Speaker 02:
For instance, in CalMet, they found a single issue impasse.

[00:32:27] Speaker 02:
In that case, they determined that I think it was, I want to say it was retirement or pension.

[00:32:33] Speaker 02:
I'll say retirement.

[00:32:35] Speaker 02:
It might have been health insurance, but one of the big ticket items all the time in bargaining.

[00:32:39] Speaker 02:
In that case, the board found that the employer had shown all three factors.

[00:32:44] Speaker 02:
And that's because whatever the impasse issue was, we'll say retirement, whatever the issue was, I think they used terms in that case like it

[00:32:52] Speaker 02:
It was the big shadow over all of the bargaining.

[00:32:57] Speaker 02:
And there were statements made at the table that if we can't agree on this, we're never going to come to an agreement.

[00:33:02] Speaker 02:
So I think facts matter a lot in these types of cases.

[00:33:07] Speaker 02:
Impasse is one of those issues that is uniquely reserved to the, not uniquely, I'm sorry,

[00:33:11] Speaker 02:
But impasse is one of those issues where the courts routinely recognize the board's expertise on that.

[00:33:16] Speaker 02:
And so I think in this particular case, there are facts that distinguish this from CalMAT and save the standard as one that the board is continuing to follow.

[00:33:24] Speaker 02:
I don't think these facts lend themselves to say the rule is swallowing or the exception is swallowing the rule or however that analogy would go.

[00:33:35] Speaker 02:
So am I one?

[00:33:38] Speaker 02:
No, I'm not going to say that.

[00:33:42] Speaker 02:
I'm happy to answer any other questions.

[00:33:44] Speaker 01:
I think I. Well, just generally, how has the board interpreted time periods with respect to temporal proximity and past practices?

[00:33:53] Speaker 01:
I'm just trying to get an idea of when you're looking at the animus argument, you're arguing temporal proximity.

[00:33:59] Speaker 01:
But do you know how that's been interpreted just generally?

[00:34:03] Speaker 02:
To be clear, the animus, when the board is looking at motive and so they're looking at animus, the proximity that they're talking about in that context is, did the action, the adverse act, did the action that happened follow quickly on the heels of some other protected activity?

[00:34:21] Speaker 02:
So I think there are cases

[00:34:23] Speaker 02:
That say at least a month, I think we put those in our brief that so that I don't think there's I don't understand their argument to say that it wasn't proximate enough.

[00:34:33] Speaker 02:
I think what they're because they're the settlement agreement was in March of 2022 and that's the relevant.

[00:34:38] Speaker 02:
the relevant time of the relevant event.

[00:34:40] Speaker 02:
I think that the board is saying it happened on heels and also the collective bargaining.

[00:34:43] Speaker 02:
They reference that.

[00:34:44] Speaker 02:
And I think there's a bit of a confusion in the briefs.

[00:34:47] Speaker 02:
The charge itself was not the trigger.

[00:34:49] Speaker 02:
The charge that eventually led to that settlement agreement.

[00:34:52] Speaker 02:
The charge itself does get filed in July 2021.

[00:34:55] Speaker 02:
But that's not the date, that's not the time period the board is looking at.

[00:34:59] Speaker 02:
The board is looking at when did the protected activity happen that we think prompted this action from the employer.

[00:35:04] Speaker 02:
And that was happening in March.

[00:35:07] Speaker 02:
So I don't know that the board I don't think has a bright line rule.

[00:35:10] Speaker 02:
I can say I think with pretty confident authority that this court has at least recognized at least one month.

[00:35:17] Speaker 02:
And I think even longer than that.

[00:35:18] Speaker 02:
And so that's sort of the time period that we have here.

[00:35:20] Speaker 02:
I feel confident saying that.

[00:35:21] Speaker 02:
I'm sure there are cases that go farther than that, farther back.

[00:35:24] Speaker 02:
But the one-month period, I'm confident.

[00:35:26] Speaker 02:
I want to say maybe tasty baking says that, but I couldn't tell you for sure.

[00:35:29] Speaker 02:
It would be in our brief.

[00:35:30] Speaker 02:
But I don't understand them, or I don't understand the employer's argument to be attacking the proximity, that these two events were too disconnected in time.

[00:35:37] Speaker 02:
They rely on the summer events, which I'm saying is not the appropriate trigger.

[00:35:44] Speaker 02:
Is there any other questions?

[00:35:46] Speaker 04:
Beth Rogers, any other questions?

[00:35:48] Speaker 04:
Oh, thank you.

[00:35:49] Speaker 02:
Thank you.

[00:35:50] Speaker 02:
Thank you.

[00:35:51] Speaker 02:
We asked for full enforcement.

[00:35:57] Speaker 04:
Ms.

[00:35:57] Speaker 04:
Marina will give you two minutes on rebuttal.

[00:36:00] Speaker 03:
Yes.

[00:36:03] Speaker 03:
I just want to cover two things.

[00:36:05] Speaker 03:
First, the settlement agreement that the July 2021 charge, the board literally adjudicated

[00:36:15] Speaker 03:
Something that was out of the scope of the charge that was being considered because it was way previous to the six months period that the board had to analyze and for labor practice.

[00:36:27] Speaker 03:
And not only that, the board entered into the merits of a case that was not tried.

[00:36:34] Speaker 03:
that this case was not tried.

[00:36:37] Speaker 03:
This was not the matter of this case, right?

[00:36:40] Speaker 03:
So there was a violation to the process.

[00:36:43] Speaker 03:
There was a violation to the constitution.

[00:36:44] Speaker 03:
There was a violation to the board's president.

[00:36:46] Speaker 03:
There was a violation to applicable case law.

[00:36:50] Speaker 03:
And then even though the judge recognizes in the decision that

[00:36:56] Speaker 03:
It was her understanding that an unfair labor practice occurred.

[00:37:00] Speaker 03:
The board, the general council presented a post hoc rationalization saying, no, no, no, we were just considering the facts behind it.

[00:37:10] Speaker 03:
But it's not true.

[00:37:12] Speaker 03:
That's not what the ALJ or the board said.

[00:37:15] Speaker 03:
They literally considered the merits of a July 2021 charge that was subsequently settled between the parties in March 2020.

[00:37:24] Speaker 03:
And we cannot ignore the fact that that settlement benefited the company.

[00:37:29] Speaker 05:
And regarding the... I don't know where you get that law, all right?

[00:37:36] Speaker 05:
That during negotiations, the parties can't withdraw and settle something among themselves without the board.

[00:37:45] Speaker 05:
There was a settlement before the board.

[00:37:47] Speaker 05:
There was a non-berth settlement.

[00:37:49] Speaker 05:
I understand, but it was not a settlement that the board imposed upon the parties.

[00:37:56] Speaker 03:
Now, it was agreed by the parties.

[00:37:59] Speaker 05:
I don't know of any case that says, as you say, it's illegal for the parties to proceed as they did here, at least as to

[00:38:11] Speaker 05:
the settlement you're talking about.

[00:38:13] Speaker 03:
Oh, no, no.

[00:38:13] Speaker 03:
I'm sorry.

[00:38:14] Speaker 05:
Careful here.

[00:38:16] Speaker 03:
All right.

[00:38:16] Speaker 03:
Probably I misstated.

[00:38:17] Speaker 03:
I didn't want to say that.

[00:38:19] Speaker 03:
I completely agree with the settlement process.

[00:38:21] Speaker 03:
I think it was valid.

[00:38:23] Speaker 03:
What I'm saying is that the board entered and adjudicated the merits of a charge that was subsequently settled.

[00:38:30] Speaker 03:
And that was inappropriate.

[00:38:32] Speaker 03:
And that was a violation to the process.

[00:38:34] Speaker 03:
That was what I meant.

[00:38:36] Speaker 03:
Sorry if I misstated.

[00:38:38] Speaker 03:
So and the other.

[00:38:41] Speaker 03:
And the other aspect I wanted to cover is that the case Beacon Journal, Popco versus Acre newspaper, 114 federal third, 596 from the sixth circuit says, past practice or custom should not be used to interpret or give meaning to a provision or clause of the CBA that is clear and unambiguous.

[00:39:02] Speaker 03:
And that was what I was making reference earlier in my presentation.

[00:39:07] Speaker 03:
So, it's our position that the past practice does not apply here, and if we want to think about what happened between April 21 and April 2022, the period to which Sister Council made reference to, the only past practice on the record is that the union president failed.

[00:39:29] Speaker 03:
to comply with the applicable attendance policy and that it was the company who applied or submitted their requests on his behalf, which is exactly what was done with the prolonged leave.

[00:39:44] Speaker 03:
Thank you.

[00:39:44] Speaker 04:
I think you have your argument.

[00:39:46] Speaker 04:
Ms.

[00:39:46] Speaker 04:
Sheehy and for both counsel, I'd be interested if you could address this case that I raised, Sasol, which the site for that is 275

[00:39:57] Speaker 04:
F3rd 1106, maybe just a short 28J letter would be helpful.

[00:40:04] Speaker 02:
Can I read that back to you, which I wrote down?

[00:40:06] Speaker 02:
Yes.

[00:40:06] Speaker 02:
275 F3rd 1106.

[00:40:08] Speaker 02:
Yes.

[00:40:09] Speaker 04:
Thank you.

[00:40:09] Speaker 04:
Okay.

[00:40:10] Speaker 04:
Thank you very much.

[00:40:11] Speaker 04:
The case is submitted.