it please the court my name is amber rogers and i represent encore electric delivery company like to reserve five minutes for a bottle and also begin by offering my condolences regarding the passing of judge ripley this this case is important because it involves a fundamental question of labor law under what circumstances must an employer provide information to a union concerning non bargaining unit employees this court definitively answer that question and sara lee bakery in p t k investment and held that a union at a minimum must articulate articulate a legitimate purpose for seeking the information at the time of the information request th substantial evidence in this case shows that the union did no such thing and provided encore with nothing more than bare assertions regarding why it needed information regarding non bargaining unit employees and the courts have found such bare assertions to be in adequate to find a violation of the national labor relations act and a board order question about the record quickly i think i read in the you know  honestly judge owen edge it's hard to say because what happened is the union offered to enter into a protective agreement the company agreed and then the union never responded and i think the record bears out that at record sites one hundred and ninety three that the business agent bobby reed said well i was going to wait until we got a decision from the court before we ever enter into a confidentiality agreement so it's hard to say but likely likely the names would have been on the work orders that's what i don't understand if you are willing to provide the names and  why are you fighting this now and i really don't understand what's right judge i think the difference is that you know really what this is this is a discovery dispute a sensually but this happens all the time where parties have information that they believe is confidential and the parties then work out that you know object and say wow i'm not going to give you that information is confidential is for private or try terry it's a trademark all those types of reason and then the parties you know enter into some sort of confidentiality or privacy agreement typically that outlines how the information will be used who can see it what happens to that information i think what sensitive is that you know if we really have to take it to the beginning that what what the law requires is that this information is and there's no there's no argument or debate about that this information is not presumptively relevant it is about non bargaining unit employees and that it is incumbent under the law for the union to present at the time of the request why that information is relevant and it never did that but request it was not clear it seems to me correct me if i'm wrong whether union employees had been disciplined and so it seems to be perfectly legitimate to ask for the names of those actual question that under the collective bargaining agreement that article ten section eight of the parties collective bargaining agreement it states that you know it goes through managers and different types of employees who are not in the bargaining unit can do bargaining unit or can can do work and as long as it doesn't lead to a reduction in the hours of guarding you to employees so there is no you know your question about displacement there is no sort of irrelevant analysis in the in the collective bargaining agreement or some prohibition on that let me read ask the question was it clear at the time the have is a company saying that this work is not exclusive to the bargaining unit and and and further it provided information about the hours it provided information later about what hours or the what employees had received non employees had receiver storm exception work so again i don't think that's the real issue is the reduction of hours like i'm not exactly sure if you mean about displacement because that's not what the contract says  union official our union employees had worked so they got that they never complained about it and they did ultimately receive information regarding the  hours that the company made clear that based on the type of records in the methodology in which it keeps records there was never going to be a way to to pinpoint precisely that you know x employee x bargain employee you worked you know a particular amount of hours doing this type of work all that you could do was say they receive some sort of storm exception pay at some point and so we know they did some type of work  that but we don't know that at this type of work so again i mean i just i don't think that's the necessarily what the issue was and i don't think there that's again that's not the union ever  said you know we had to go with the union said on why it needed the information and it said that encore was violating the collective bargaining agreement by having non bargaining unit employees perform bargaining unit work it doesn't mention you know what you're saying and again so that that's what the court has to examine is what was on board told at the time and then also said it needed the information to quantify damages and the record bears out that mystery testif so the union here failed to as i mentioned to ever serve more than a bare assertion regarding why it needed non presumptively relevant information about non bargaining to employees which is its legal burton under board president in sarah lee bakery and p k investments and the supreme court's detroit edison decision the board's all order also ignores the substantial evidence in the record which is that and i think this goes to your point judge owens and twenty seven to twenty nine it also the board's order ignores that mystery testified that he never even intended to go view the work orders the very document that the union kept requesting from the company because he said it would be a waste of his time and the board's order never makes any mention of that and again that that record seven hundred and seventeen thousand two hundred and ninety the board's order also ignores that mr reed testified that had he reviewed the work orders the company didn't want to turn it over that i think if you look at the request this is a lot of very sensitive and private confidential information about employees that the union does not represent and again that's where this where the inquiry begins the union is not just blanket and entitled to all the information that it requests from a company and that's ever and that's board president that's this court's president and that's the supreme court precedent that the union can't just come out and ask for all types of information or employers that it does not represent and when it does ask for information about employees that it doesn't represent it is incumbent in the law requires that the union has to show why that information is relevant at the time and it has to act in good faith what was it about the names of the employee just the names of the companies bill that would be  reasons positive or negative for why the union ones all of this information about any employees and asking why the company thought the names of the employees was since an information that it should not and because the names tied to all of this information is it's private it's confidential and that that's the issue eventually the company you know gave unique identifiers and turned really clear on this that the union has to provide a reason and had to do it at the time for what it needed the information or and i think that questions for the board is it because it's never in the record why do they need the names why do you need the names of people that you don't represent why did and then why do you need to tie it to all of this other information and so the company's not if the company is left with a union that refused to engage in the process the way that the law requires it it did not act in good faith and that's what the law requires the law says that an employer upon receiving a request for information about non bargaining unit employees or data is able to raise objection and then offer an accommodation it that's what oncor did time and time again here and what you have is the union's utter refusal and the board's refusal to acknowledge that to ever to ever respond and to keep you know when you the law says when you're offering these bare assertions which is i need it because i need it that's not adequate and that's not sufficient under this court's far and the detroit edison supreme court decision and that's really again we can't leap over the union's pardon and that's where it all begins and we can't we can't leap over and and unfairly and that's what the board does unjustly unfairly puts the burden on the company and that's not what the law requires so we also have that the the board's order ignores that encore's attempts to provide accommodations so in terms of attempts to get the union to come view the records it said it would make their records available monthly and again bobby mystery just testified that he would never go see the work orders anyway the board's order also ignores that oncor did not possess certain information in the form requested or that certain information just did not exist it also ignores that mystery testified at the unfair labor practice hearing for instance that the company refused to provide current information which is which is untrue and you can which is that of the company alleged at the time of when the when it was st asked for these names was that it was private information and that they wouldn't disclose that they have not made that claim since then certainly not before this court so to the extent that you are making it now that argument's waived but even so it's irrelevant because the board it is clear under board law and that's a nd point it is clear under board law that in work diversion grievances such in this war as this one the names of the employees to which we were pune it work has been assigned is relevant to the union's fulfillment of its representational discovery standard in this case as as as we say this is a discovery type standard like in federal soldiers not it helen specific tell me why i need it why i needed it when you asked or the union said that it needed the names in order to ascertain whether employees nonunion employees had been assigned unit work to quote to figure out how much time they had on unit work ok why do you need the names to figure that out i'm sorry why do you need the names to figure that out the company who said straight out we did not not mean employees did this work here the hours here's what they were paid why did you need the names because the information differ mission that the company provided is not does not complete and the only way for the union on this records to complete that information was to dig into what it could find and one of the ways to get that information would be from the people who did that work and i would like to join any of the letters that asked we need we want to go interview these people who witness is not anywhere  i got that i looked at the you know army case that you attached said it was attached it didn't it didn't mention any of that you never ever said we want to go interview these people because your potential witnesses know you and we were checking veracity that was never sent no your honor because they don't have to the union doesn't have to say what it is going to do with the information it is given and also an important point here the information union all i can do is speak for the court and say the board that i did why does the board think that the union need the board thinks based on its experience and multiple cases that we've cited that having the names of nonunion employees who do unit work allows an union to dig deeper to find information information that may not even be aware exists a union  because we will need we will need to quantify damages if this goes to arbitration obviously if a case goes to arbitration any of these people may be called as witnesses but going back to the union does not have to tell the employer it intends to do the question under the acme industrial standard is whether the information has a bearing on the issue that is in dispute and in this case it's not determinative of the issue that is in this has a bearing on it and the reason that standard exists your honor is because a party that is seeking information does not know going into something going into a dispute where it might find out information and therefore the courts and the board and the board have held that there has to be some leeway for these are used to find that information and even by getting information that is relevant but may on its face not seem like it is dispositive of the issue the bottom line issue for them and that's why the discovery type standard is broad and that's it as i mentioned the i think there are courts that have said that or potentially put probable relevance or potential relevance is enough and the reason is to allow parties to do their due diligence it's possible the union once it had those names would have found that there was no grievance to be fat and it could you know the parties could have gone about their merry ways that's the reason those names are important that's the reason all of the information that the union requested the board found was relevant to its request i'd like to make a quick point about the various issues that the various arguments and and rebuttals that we've made in our briefs the only issue before the court is whether substantial evidence supports the board's finding that a book with the union showed the information it was request was relevant and b that the of the on court did not provide that information and as we as we explained our brief and i think the court is rightly focused on the issue of names that's because on core has it the court has no jurisdiction to address the relevance of the other issues because on court not preserve that issue so once and i'm happy to continue discussing the names but i will i will since my time is limited also talk about the the up the other issue to fill your to provide on that issue the board found that the that the company had failed to provide the names for all of these items of the oak or requested the names are this common denominator of every single one of the union's requests for every one of the requests builds on the st one so the st one is names of the employees the nd one is income of the employees named in section one the you know they'd since time dates a number of times amount of time that they did the work those employees in section one and so on and so forth so without the names none of the whatever information on core provided is incomplete and therefore by that for that reason course response violates the act i don't know if you if your owners have any specific questions i don't want to keep repeating like repeating my grief but specifically judge or when have i answered your concerns about the relevance of the names or would you more that could be obtained without the names of the employees it's impossible to cross reference those that put that information in for the union to know which which individual is refrig referenced in and such a document and is it the same as the person in another document and so on and so forth unless the company refers to all of those individuals and every single one of its documents by a number the number that it provides the union yeah in that case so be possible to its employees by numbers on all of it's on all it's documents that's that's just simply they've never made that representation that simply ridiculous so and now at that point if as you mentioned judging by if they if they gave just the initials the union could then later on say well ok we need to talk to a specific person who is behind those initials you know that would be there would be room to work there the way the way the company left it was with just those names it was just impossible and i'd also like to mention of a quick point that the council rogers made about  the business representative saying that was a waste of time to look at all those those records he said that because this wasn't his st rodeo on core had done that before basically told him here's a pile of work orders come in go look through them what he didn't know is that on core had the ability to sift through those were orders and to make his job much easier so that he presumably would not have to pay fourteen thousand dollars or something to two to get reductions in a one hundred and twenty work orders he didn't know what his options were and he obviously was not going to sift through one hundred and twenty thousand work orders that is the other point i want to make and other was your hono is robert picking up on the council's last point regarding sifting through the records it's important again this is where the board ignores the record the substantial record evidence that mr reed testified at the hearing and record side and eighty one that the union was trying to get broader on this to get info for all of the storms and all the people that the company was utilizing and the company wanted and fro from all of the storms so there never was a desire from the union express to somehow reduce the amount of information that was written requested and it never asked the company to reduce it and also the record the board ignores the record evident on this point and  overstate that which is that mr gibson testified that based on the company system and its search ability it's only searchable she said on a limited limited criteria and that's record one hundred and thirty one she said you can't search it based information from january st two thousand and sixteen to the president and continuing on and the company made clear that what you are asking or we cannot produce to you in this format now what i keep saying union that the only way we know some people perform this type of work is that they may have received storm exception pay made it clear that that does not mean you did storm evaluation work and then made it also clear the and this is the  record evidence on this which is that ms gibson testified at record one hundred and forty three dollars that a date an employer receives storm and section pay does not correlate to the work order date and that payments are rarely made in two dollars weeks and that they can take months to to be done record one hundred and forty three dollars regarding i'll just highlight damages really quickly regarding damages again the board ignores that bobby reed testified that he based on the information th company produced was able to calculate damages he estimated them to be at one million dollars that's a record five thousand five hundred and sixty six and sixty seven regarding waiver all rely on our briefs we did not waive any of these arguments it is clear from the exception that's clear from the board's response where they address that in numerous of their sections of their brief the board addresses the issue of relevant they also and section twenty that's what it's about is to put on notice so there is no waiver of any of these arguments and i think you know what's evident from counsel's response is that he can't give you a reason for why names are relevant because again focusing back on the law unfairly bakery because the union never did what it was supposed to do at the time which was articulate a reason why it needed the information and again the  board ignores this evidence that it was the record to thirty four dollars again it's a clear explanation from the union on why it needed it what was continued encore was violating the stevie and quantify damages at the hearing the board ignores that again when specifically ask why did you need this information record one hundred and forty one mystery testify trying to ascertain all information to process art treatment that is textbook bare assertion and this court and the supreme have held similarly and also again i would just already point it out but the company gave all of the other information to the union and there's no dispute about that that you know mr re d was asked about every single piece of information and responded that he received it he just didn't get get the names and i've already provided the record cites for for that and just briefly just on the last point about the scope of the appropriate unit i think the the record will bear out for itself what that is the issue there is that the board can't on its own change the units that he