morning council it is subject to three congressional requirements st under section ninety eight dollars of the act any appropriate unit must be represented by an exclusive representative you cannot have a singular employee represented by multiple unions in a single employer that is not exclusive nd under section nine b of the act any appropriate unit let's take a cow in a sure employees the full is freedom in exercising their national labor relations right and that would include not only those within the unit but those external to the bargaining unit in finally under section one c of the act history of bargaining cannot be controlled but it can be a factor but it cannot be control is not a history of organization it is history of organization yes your honor though is that the same as history a bargain i believe it is i don't think there's a differentiation between the two has the board trade in the well i think this court has treated him as the same that the history of bargaining to the extent the court looks like it looks at it in the current setting cannot be controlling and very frightened seafood in the ferry a paper cases those were both histories a bargaining that had long histories of parking as matter of fact where the court reversed the board's determination about unit appropriateness of the current setting that maybe maybe a fair point but it isn't quite the same history of organization or extent of organization which is really designed to deal with the initial representation preceding it may be that that that the the view point of view are is judged at the the petition that was actually presented the history of that history is not controlling but if you go and look what the court did in those three cases try and seafood and a very a paper in even in the indianapolis next sales which the court adopted i know it's a seven circuit decision but the court adopted it in both the feria paper and in trite in seafood its analysis it shed i substantial bargain in history where there were jobs classifications because of the similarity between the excluded yes your honor so it can i get another question about the statute so your position as i understand it is that there is a a nearly per se rule four plant wide units in an integrated plant strong enough even to overcome history to the contrary but the statute b on its face gives the board a range of choices says including plant units employer units craft units or subdivisions yes your honor so how do you reconcile your position with that seemingly very broad range of discretion to the board so actually it's been conceded i think your by the board and it's this court at page thirty decisions through individual decision making that's what it shows to do in border field rolling bills the very st sentence of that case which was a burns case says there is a presumption of a plant wide unit  success or subset now in a briefing to the court the n l r b has tried to turn that on stein to try to reconcile that with the traditional burns history of bargaining and said hey mr pryde so you can't come forward with the circuit with a case that squares those two principles i don't think that's our obligation if the n l r b wants to say that it's holding and burn steel rolling mill where it did have a presumption of a plant wide unit in a fully integrated plant is somehow trumped by the history of bargaining it needs to say that in some kind of decision because that's how it issues its regulation so is the you know i'm just starting with our president and tried and which held that the plant wide unit tests in the community of interest has apply only when delineating units previously i represent employees not as here when the board is assessing historical units that have had long periods of success successful collective bargaining so i thought we were beyond that we're in a situation in which as our court and the board have said the board places a heavy evidentiary burden on a party attempting to show that historical units are no longer appropriate so what in what way what respect has the board acted contrary to  are first of all the difficulty of paper cases you cannot just look at a comparative what did you do afterwards mr stein in terms of trying to change the way you operated and compared to how it preceded under the predecessor employer  m s the board never undertook that it was and the this this court in both tried seafood into fairy paper said he even without a single change in the way you operate you still can have a inappropriate burns unit when you look at what was done at the predecessor in terms of how it operated and you only need to move the needle inches miles if in fact that unit was marginally appropriate to begin with and again the board did not take that comparative analysis here you know only looked at a you only trained a few employees by the cutoff point that it established for looking at whether there was cross training across jurisdiction the connection point between all three of those units and i think it spelled out in both our reply brief and her principal pre judge was if you take those three labor contracts labors contract the operators contract know the teamsters contract and you would overlay them with each other literally every wage hour in term a condition of employment a loss really become trickster identical except for the multiple multi employer fringe benefit funds the pension fund they had to contribute to and the wage rates in the board itself has said that the wage rates the mere differential the wage range between classifications cannot be determinative factors in any in determining whether byrne's censorship unit is inappropriate it said that proffer on cross training because in fact the jobs are quite different the the jobs are different and you're correct that from the outset stein's announcement was we are not going to operate like set this up you you in perth him impermissibly changed the across jurisdictional assignment in the board not only reversed the able j on that but said we had a right under burns to do that that we had an inalienable right under burns to do that and we did that and so now you get into cross jurisdictional work where you're having laborers jumping on operating engineers equipment they're jumping in the terrorists off haul trucks in every unit is doing everybody's different types of work and that's one of the changes in addition to what was announced in the november nine communication of the boards and set the initial terms and conditions of the point which was the seniority now has been melted together simply because different jobs are performed by different people the units can be attributed or drawn just in terms of jobs i don't think it's just in terms of job seeker judge silberman i do think they look at functional integration as well i don't think i've ever seen a board decision where units are crafted in terms of jobs it's the only the only where it exists judge superman is in the construction setting which are mostly ate up contract that's through the board says community adventurous is not relevant when we're talking about successorship situation i'm puzzled about that i can't imagine any other standard that could be this that would relate to a community event if you run through the factors that you think make separate units here in appropriate yes yes you common supervision between all employees they all attend the same say if the meetings in the morning they shared the same parking lots they seem to share same lunchrooms same shower facilities the interaction between the employees is nonstop this is not something that happens on a sporadic basis these three unions units work in conjunction with each other with daily contact both eyesight contact and verbal contact trying to carry out the slab reclamation it's place perhaps you should go through the functional in a relationship the functional in a relationship is it is so interlocking judge that i can't fathom how you cannot find functional in a relationship between  operated by an operator the terex truck is driven by a teamster and there's a laborer hosing down the area to keep it cool so will d be pits don't catch on fire the product and that it properly loaded into the truck allegro the labor also are not are not bothered by that i'll give you a chance to address mr curly situation thank you thank thank you for remove to a different topic and i just ask no more yes no a spin on this which is seems to me your best case is indianapolis smack you to death yes very strong case for us yes but it would seem to be distinguishable to the extent that the smaller units of the parts unit in the service unit in that case were historically represented by the same union which supported a finding that the collective bargaining had effectively been merged and historically done together and we don't have that here with historically three separate units you're correct but they were two different units i understand represented by the same union but there were two separate units in indianapolis mexico's you're correct your honor sure but the fact of having only one union in indianapolis from act would seem to make it easier to think that historically the collective bargaining had been done together except border still kind of runs counter to that because originally decided the karalee on the proposition that we got impermissibly changed the sixty day laborers probationary period to a ninety working day british probationary period and therefore violated the act  board what are altogether different there ian said no no no he had the right to do that understood under burns we have the inalienable right to change the probationary period under burns there was never a question that purely was he and his probationary period he admitted it  bore argued it in the board argued he was in it probationary period because they wanted to fit this case into their total security management proposition which is in between labor contracts when employees are unprotected as  process is in place they had a the the total security case held in that setting you had to go to the union st before issuing discipline because those employees were unprotected they wanted to stretch that in our case to the probationary period of a contract where they similarly are largely unprotected so there was any question by the parties here that we were dealing with a very valid legitimate probationary period met affect us with the board argued in its briefing to the a o that it comes to the board in the board said no wait a minute he wasn't his probationary period because the ninety day which doesn't say calendar or working day announcement in the november  initial terms and conditions that somehow changed what we did in ninety working and the key there i think to the key hole key thing here judge clark to this is that look at how they pled their case in paragraphs eleven and twelve the complaint they actually said that the labor contract with the operating engineers was in fact our initial hours wages terms and conditions that we have right had we had a right to establish under burns in that labor contract is clear of like it with burns in my back pocket i just have to show that bernstein's i get the right to set the now wait till today it and change the theory altogether to this ninety calendar day vs ninety working day which was never an issue in the case  their collective bargaining agreement and for a reasonable period during any success subsequent negotiation given the important role that section nine has plays in the successorship doctrine it has always been a fundamental precondition to any finding of successorship why a bill will be that there is an actual collective bargaining agreement in existence between the predecessor employer and the union and that that prior agreement  the union is alleging or asserting the wakeham of ninety's than is in response to the board's inclusion of that status as an element of its case in this case the board itself identified section nine s as an element of its claim whether they say it or not it's implicit you have and you know that the notion under burns is you have a union that has been recognized historically it is a presumptive appropriate unit when a new employer takes over and the fact that they played it here is just a recognition that that's one of the preconditions and factually maybe they're wrong but that doesn't that doesn't lift the time bar or at least i'm not following your argument about why it might well in the case where the employer is required to you excuse me were union is asserting a successor obligation on behalf of the successor obligation in both cases in both instances the collective bargaining agreements between the predecessor employee and laborers in the teamsters were both expired i believe for the waivers that expired sometime in two thousand  power cases an outline of cases all point to the existence of quite a parking agreement as a basis for finding and on a relationship with the existence of a valid to act of carving agreement that was being maintained by the employer in this case we really do not have any evidence of the collective bargaining agreement being menteri well couple of that puzzles maybe because even without a collective bargaining agreement in there is a collective bargaining relationship with the incumbent union isn't that correct otherwise on the other theory there when when a collective bargaining obligation or part of the employer when there was a gap between one contract than another and we know that's not true into the computer is that is that how better i get closer and it will i think a giant head right now but i'll end up with a backache but it will actually help us a lot to her you know if it's more important about you hear me than i then deleted the part of george collins order directing stein to retroactively were store the terms of conditions of employment but the teams represented drivers laborers represented laborers under their respective contract stricken i mean whether we had inadvertently itself the employer spent a month hiring its predecessors employees and encouraging them to fill out union cards for its preferred union before it began operations and proposed its initial terms but the supreme court still held that burns had a right to impose those terms and so i'm just wondering how how is stine's conduct here distinguishable from the conduct that the court site in addition nerves are correct about that question then your claim falls away right only why don't we go right to that rather than waving the bloody shirt if you insist or stein's defense is that the historical units are no longer appropriate i don't read their briefs or their arguments to the board as arguing that the existing units before they took over were inappropriate this is what i do and they cite are cases appropriate without regard to any changes yes those two cases didn't but i don't see an argument that these particular unit were inappropriate beforehand i do when there is a successorship situation the board does not conduct analysis as if it were an international bargaining situation yes you said in your brief you do not use community and of interest  liar that fascinates me as we have said in our opinion if it fails to conform reasonably to other standards of appropriateness  existing situation then it's not a non inappropriate you're right exactly right now explain to me how that standard differs from community of interest because i find it very difficult to even conceptualize a standard that would be removed from community of interest if it is not entirely removed from community interests you are correct then what is it then what is it you say didn't establish is burden what i have a damn of time trying to figure out what standard he has to prove to he has to show that the units are repugnant to the x column what does that mean truly inappropriate truly now why are these units truly inappropriate because do you have any example of any case anywhere by the analyzer be it was a unit like this was declared of the along the edges but this case who looks to me like it would be truly inappropriate if it came up abba nescio would you agree with that no regional director would ever allow this unit be put together  pots don't you agree i'm not and i'm not entirely sure i agree but remember in a successorship situation in any any initial bargaining situation even you're looking for an appropriate unit not the most appropriate you know any place anywhere i'm going to have to think about that your honor because there are a lot of cases rolling around in my head but remember the i've thinking about a lot to another i would put it to you there is no such case look even if we go back to hotel cases for example doesn't please or also doing an functionally integrated work everyone is running the whole town making sure guests have a good time and the board has found those units can in many cases be separate units what kind of nonsense that like of people who are doing luggage transport versus people who are cleaning rooms versus what the front desk top of the restaurant working they all have to make sure their jobs are coordinated traditionally clerical employees can be disassociated from production and maintenance employees that's true anderson but i can't imagine a circumstance and i know of none where this would be deemed an appropriate unit what we have here you have functional in a relationship between all of the three groups they all work together they all eat together they all go to briefings together it's hard for me to imagine a case in which separate units would be thought of as an appropriate i agree you have a little flexibility but you have to show an appropriate you know that don't you yes run or remorse go ahead this court the board with this court approval and try to the theory of southern power give significant weight to bargaining history these three units have existed for at least three years and these employees do completely different give me for interrupting you again aqua's you agree that if the board relied only on bargaining history that would be a blight mirror when i read southern power the court's decision there seemed to turn entirely on bargaining history well and isn't isn't that really a burden question in disguise in the sense that the burden is on the party attempting to show that the historical units are no longer appropriate and they say it's weaved into the heavy evidence cherry burden you know so i guess it's it's really a question of you know initio is it appropriate but has dined borne its burden but let me get at this a little but i have some of this shared concerns as as just sober men what would be the affirmative rationale it's just a little hard for those of us who want you know closer to this kind of scenario what would be the benefit to the teamsters to having different representation and to the labors having different representation given that so many terms are similar terms are similar but remember in a successorship situation we are allowing the employees to continue their choice of representatives stein has imposed representatives on them and these employees have chosen to be represented by the teamsters of neighbors for years these were right which is sort of the the that's the historical factor but just thinking a little and i recognize that that i mean as i read the cases and the board cases are cases on the board cases it has a presumptive strong weight what the history has been and there's a kind of path dependence but i'm asking you to bracket that recognizing that it's quite important for the board's position to bracket that is what what are the other functional reasons and i i understand that because the pension rights are one of the things that are at issue here what i'm referring to is path to penn it's actually a very important because someone shifting pension plans is detrimental to employees  other than the the sort of what i'm calling path dependent aspects why would a group of teamsters want to differing unit from a group of engineers on a work site well your honor i think you can just look at the collective bargaining agreements themselves i know mr pryor tell as represented that the collective bargaining agreements are basically the same but they're not there are different probationary period the teamsters and laborers had different probationary period different one was thirty days one was sixty days the laborers and the teamsters had shift differentials but luckily team does not have a shift differential local eighteen included premium pay for two dollars different kinds of operators either i can't remember one of either the temp teamsters or laborers also have premium pay for lead men teamsters or gear and all that just goes to by going to buying a history that doesn't go to the question of whether it's appropriate unit or not does it but it goes to judge paul art's question about that's it that's a fair point it doesn't answer judge applies western but i'm pointing out that's just part of our history that isn't a question relevant to whether it's appropriate what one unit is appropriate dozens of them we're talking about what are the kinds of things that they're interested in they go shooting for and if they've come out differently maybe they're different priorities is that th separate representation you don't know whether all the employees want separate representation and they may think there's a benefit to being represented by the operating engineers who typically get more and greater play so we don't know that we don't know what the individual teams your employees and then the vigil labor employees labor what we don't know what the we know what the unions want right well your honor let me say that there were union security congas in these contracts and so far as i can tell that means that one hundred percent of the employees had signed cards to the teamsters or with the laborers well of course because you don't have a separate secret ballot election so they have no stein there these employees did not make the exact same wage they're still distinctions based on who's a driver who's a laborer and who's and who was for we don't the board doesn't in determining what's in the program you don't it why it was as though why it isn't relevant to the what i cook to be the underlying issue which is community of interest of the unit is it appropriate you know one of the aspects of kind of interests are am i missing something so far no you're one of the aspects of community of interest and one of the artifacts one sort of in this shell of a committee of interest would be if you end up with a collective bargaining agreement that that has different kinds of terms it might reflect the fact that those workers interests are and are different from another workers interests and they result in different terms they're interested in getting into a secure job more quickly maybe they have more competitive in the market so they have a shorter probationary period their interest is and a higher wage there's a finite pool from the employer they want a mind sharing from this is ok but but the go ahead always let a response and then i'll say something about community of interest the problem is the promise of your question is problematic this will board has specifically argued in this case the community event this is it not relevant which is absolutely stunned me i it is not completely irrelevant you are correct  required to conduct the same community interest analysis it would if it were determining for the st time whether a unit is appropriate yes or i'm just reading from your heading  then you say the petitioner didn't prove the case but i'm trying to figure out prove to what standard we said in our case does the unit conform reasonably well to other standards of appropriateness that's we said that was with what we thought the law was but that means you have to look at what your normal standards are which are community of interest i can imagine in the other stated but community i thought job functions were separate from bargaining history and that was the st thing you mentioned and i thought that was a pretty significant aspect of the inquiry and my wrong i don't think you're wrong at all your honor and these jobs are very different they remain very different after stein took over well you're talking about jobs or job function you're talking of that's just the work the work that people are doing the actual work they're board rejects the notion of having a unit that is completely defined by job classification right so if you look at trident those employees were doing exactly the same work the only thing that differentiated them is where they were hired that w you can have people performing every other every job under the world but the if they're in a related functionally unrelated they're always treated as a single unit not always your honor i mean a functional integration does receive weight from the board in initial bargaining situations and if stein what what what do you look at in the situation which is not an issue i think there's a big big big gap in the board's position i think you have the line on only bargaining history because everything else you do you focus on different job duties is a relevant in the typical bargaining unit determination i sorry i disagree job duties and what job what employees are actually doing day to day yes to what they're doing the question is whether they're in a related there's a lobby issue that is not the final question for the said reasonably well connected other standards of a programs so you look at your other standard as appropriateness i put it to you that this case came up in the national situation a regional would likely be approved but this is not a situation where one union is petitioning for plant why do you know this is a situation where these employees have had three unions for more than forty years that's what they are going history what other standard do you  hard for me to envision concretely what the implications are for workers who have been under one click or by agreement and one pension plan and then are shifted to maybe an equally good one but it's a different one how is it that they're that it how does it work if they if there's been a period of time that they've accrued riots and you know that some of the parents or some of the teamsters and labor say disadvantage that even though they have presumptively an equally good pension plan they have a different one can you just explain that a little bit in concrete terms unfortunately i can't because in terms of exactly what will happen i don't know i know this is unfortunate for the employees by also know that stein could have decided they would all be in private pension plans or have no pension plan with whoever as long as it announced before making the offer to hire units involved people who are doing fairly similar jobs point one and point two though the work is highly integrated and we've talked about integration and on similarity of the jobs you have in one unit people who are driving fuel trucks in another unit you have people who are driving dump trucks and water trucks doesn't strike me as completely apples and oranges and in that respect this case seems a lot like indianapolis mac you have thought the parts people in the service people and they work hand in glove together and the jobs are completely different and you have some degree of crossover and that's a situation in which the board said notwithstanding the history of separate units even in a burn situation this just this has to be one plan quite united consistent with a lot of things you've said in the non burns context about plant wide unions in indianapolis mac i think you're right those units were bargain together before the successor came and that's the one fact that sort of helps distinguish maybe but there are a lot of similarities between indianapolis mack in this case in indianapolis mac broader unit on the other hand you have a strong preference for following history and we just have to balance those and in indianapolis in that those employees were doing each other's jobs the parts people sometimes did mechanic work the mechanics sometimes did the parts work here before stein took over there was new in a relationship between the jobs only the teamsters drove the dump trucks only the laborers did the laborers work after stein took over well except that it page thirty one of your brief you say that the cross training and cross jurisdictional work that happened after succession was not as novel as stein suggests and you go on for the rest of the page about some degree of the blurring of functions even pretty successful right because sometimes t m s needed other drivers when there weren't enough teamsters but on a regular basis other people weren't driving the teamsters trucks so here you've got much more distinct and separate job functions before stein took over after stein took over they did some cross training remember by three months after they took over the only cross trained six hundred and sixty of their employees and their own manager said even those employees are still doing primarily their traditional work so the laborers are still doing primarily their laborers work well of course but that's the advantage of course training you can get much greater of fish n c's which may be one of the reasons why stein was if you could drive a you could drive one of the sophisticated ms piece of machinery you could drive a truck or vice versa they could teach back and forth and labors could be taught to do some of the more sophisticated work too and i will point out that this is one of the examples that go to why these employees have different bargaining interests to laborers who are now operating the big pieces of machinery  formerly operators work are still making labor's wages an operator makes no orders well that goes to the news no negotiations on the part of the operating engineers  i have no indication that that will be true i don't know you don't know of course that's speculation what if if we conclude that the board did not examine the existing situation look only to the changes that would be under our law and demonstrably one that if you were to find that then i think you should read man for the board to make that determination but i think if you look at page twenty nine of the joint appendix the which is a page of the alj a decision the l g did consider whether or not the units were before the changeover were appropriate and found them to be to reasonably comport with a conclusion just a couple sons was right i'm sorry what page on sort of panic when i thought the ale js analysis was l he had to do and i mean and that census is what i was in applying a lot of the law thinking about this with a lot of the law about about deference and the burden cadillac asphalt for example the board finds that the teamsters unit is you know they're under under similar supervision and there's a lot of similarities but they end up looking at how the mere change in ownership shouldn't uproot bargaining units that have enjoyed a history of collective bargaining and and i mean of the  factors here just don't seem that different nd now i think i'm good thank you it judge silberman you asked on the diversion question i know it's a diversion question but did stein challenge the predecessor you to it's right out of the gate we did i had conversations with the i was the person who had a conversation with the lawyers for the laborers and  the teamsters and said you need cards give me something to show you had majority support not only that at the hearing we issued subpoenas to them which the judge allowed initially saying yeah that's an issue here that's in play here and nothing was produced in terms of any cards any certification by the board anything to show that they had any majority interest at any point we got nothing from the subpoena just the large you asked about the you know the benefits which i understand would be a concern to an employer but at page twelve of our reply brief there's a case pretty much done on point a see pavement striping by the board where it said that the fact that the employees received fringe benefits based on  affiliation rather than on their assessment of their skill or aptitude is not a community of interest factor needs to be considered in finally my colleague mentioned as an example to hotels  don't have my brief to the administrative law judge but i could tell you it was much much much longer than the brief i was allowed to file here and in it is a case i don't hotel from the advice section of the in a large body that's where really hell that you know the differentiation is between what used to be a combined unit and it was taken over at the aladdin hotel in vegas where you had front office people calling aries maids porters in the way the employer had configure that into being under one kind of like big central management was enough to defeat the predecessors history of a separate bargaining units between those different units i can't remember the name of the case i don't have it with me now was a burns case the only thing that happened there was the employer announced in a handful can said we are going to stop this step brigade in siloing of work and we're going to have a fission functionally integrated workforce they announced it in a handbook without even implementing it and that was a consideration by this court and saying we question whether these units were appropriate think of the boy lawyers argument that you could have a separate unit based on job titles all right although i don't believe she said that i believe she said based on job function irrelevant to our unit assessment but degree to which different jobs are similar or not and what they actually  car in the middle of trying to operate its business and continue its business operations you know with the steel mills production of supply processing that's why and in order for a new employer to cross train its employees while still doing that it does not have an right yeah it sounds like it would be helpful for us if you would if you have any thing to say about it if you would focus on the question of human appropriateness inst whether