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Case number 12-1054 at L. Bruce Packing Company, Inc.

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Petitioner for the National Labor Relations Board.

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Mr. O'Connor for the petitioner.

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Ms.

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Blanca for the respondent.

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Good morning.

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Good morning, Your Honor.

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May it please the Court?

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My name is Brian O'Connor.

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I am counsel for Bruce Packing Company.

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We are here today for two relatively limited pieces of a decision that's been long pending from the National Labor Relations Board, specifically the pieces dealing with the Board's majority decision indicating that the respondent, Bruce Packing, did not establish its rebuttal defense

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on its selection of a Mr. Rojas for part of a riff that occurred back in 2009.

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Additionally, there is a piece that we're here about dealing with an amendment that the general counsel tried to add to the case, a new theory, at the end of the case.

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And we had objected on due process grounds, which the ALJ sustained that objection.

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It was reversed again by the majority on two to one, indicating, among other things, that the matter had been fully litigated.

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Speaking first to the defense for Mr. Rojas, we believe that the board has erred in several ways.

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First, while it seems implicit in the ALJ's decision, this court has held that basically it's a sliding scale with the burden on the employer to establish this rebuttal defense under the right line.

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With a weaker prima facie case, we have a lower threshold to meet, and of course the converse is true as well.

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We believe in this case that it was a weak prima facie case.

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The evidence established was credited that Mr. Rojas had kept his activity secret and his union sympathies.

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He did not attend union meetings.

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The sum total of his activity in mid-June 2009 was to meet with and talk with co-workers during lunch.

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He expressed his sympathy for the union at the time, at lunch, is that right?

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He testified, yes, that he talked with his coworkers during these lunch meetings.

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The ALJ expressly found that there was no specific knowledge that the employer had as to his sympathies.

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There was no evidence, for example, that the employer could overhear those conversations at lunch.

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What they did find was based on a couple of inferences and assumptions, and there was a credited piece of testimony against a Mr. Esparza, a supervisor for the company, where he had made a comment that was attributed to him that these individuals had been selected because they had been meeting with the union.

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From that, it was inferred that he was part of that group.

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He was part of the they, I believe was in the comment.

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And then they assumed because he had this knowledge that this would be imputed to the ultimate decision maker, Osmey Martinez.

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I will say that in the record, it actually established that he did not attend any union meetings.

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Again, we've not tried to argue that initial establishment of the prime facial case because we know it's entangled with credibility determinations, which of course this court does give great deference to.

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I think you find that the split, and I think it was pointed out clearly by member Hayes in one of his footnotes, which laid forth his dissent on this point.

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The ALJ did find that Mr. Martinez's uncorroborated testimony would not be credited.

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There was corroborated testimony, however, from Mr. Martinez, and this is what Member Hayes pointed out, saying that he based this decision on reports that Mr. Esparza was giving him about Mr. Rojas's poor attendance and that these reports have been ongoing for more than a year.

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There is evidence, and the record actually was put in by the government, that he had been disciplined twice in late 2008.

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He received a written verbal warning.

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What is the evidence that the decision was made based, and there's no question he had poor attendance record.

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But the problem is, we have Martinez saying he, at the time he's making the decision, he's not looking at people's personnel records.

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We know there were people who had worse attendance records.

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How do you surmount those difficulties?

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How do you show that the decision was made because of his poor attendance?

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I think there's several responses to what you said.

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First of all, there is no evidence that somebody had worse discipline than he did.

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There was citation to it from T.S.

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Hernandez.

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Worse attendance records, I meant.

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I'm sorry?

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Weren't there employees who had worse attendance records than he did?

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No.

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Or as bad as.

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I thought there was Rodriguez.

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There was an individual named Matias Hernandez and there was evidence put into the general counsel.

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We gave all these records to the general counsel showing all the attendance and performance and disciplinary records.

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They had offered evidence in the form of questioning from Mr. Martinez about this individual, Mr. Hernandez, having been late.

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eight times in 2008.

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There's no evidence, and no evidence was put in the record again, and everything was supplied, that he was disciplined for his attendance in 2008, unlike Mr. Rojas, who was disciplined twice.

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That's in General Counsel's Exhibits 6 and 7.

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There was also no evidence that Mr. Hernandez, in fact, had continued to be late into 2009.

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Obviously, that's getting more toward the critical period of when they're making the selection, which happened in June of 2009.

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It was credited, and it's in the record, that he was late seven times, including three times in more than two and a half hours.

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So if that's what the record establishes, what's the evidence that when Martinez made his decision about Mr. Rojas that it was about his attendance?

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He testified to that.

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He made the decision based on the attendance, the poor attendance of Mr. Rojas, and this was attributed to the reports that Mr. Esparza had been giving him over time.

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Mr. Esparza corroborated that testimony and said he'd been giving these reports on every two to three months about this court attendance, which is also further corroborated by the discipline that appeared in his records.

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In my mind, though, the biggest problem you have is that

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The ALJ credited the testimony of Esparza's friend, I can't remember his name now, who said that Esparza told him that as far as the four day shift people that he recommended to be fired, it was because of their union activity.

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and that was credited.

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You point to what you say is this evidence in the record that kind of corroborates Martinez's testimony, but the I guess

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When Martinez didn't testify that he checked any of those records, and that he was just kind of going by his recollection of verbal reports, it's hard for me to see how that really corroborates him.

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A couple of things.

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The judge found that the ultimate decision maker, Mr. Martinez, was not given this knowledge.

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Actually, it was inferred to him that he was given this knowledge and this input from Mr. Esparza.

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So there's no evidence that he directly conveyed this to him.

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And I realize that, you know, candidly, I realize that entanglement.

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That's again why we didn't go after the prima facie case.

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You know, on the one hand, the board, you know, the majority says it's unclear what the ALJ credited or corroborated.

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Of course, then we have the dissent saying that there was corroboration of this testimony and therefore crediting.

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To me, if there was some uncertainty, it should have been sent back, not the conclusion to say, you know, we don't know what happened, but we're going to say that you didn't have any credited evidence in the record.

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We also had the evidence that is frankly pretty unique in one of these cases, where at the time the decision was made and they went to Mr. Rojas and told him that he had been selected because of his attendance.

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He in fact, you know, I think his testimony was that he kind of understood that he had been selected because of his poor attendance.

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It's I think an atypical fact that you go to somebody and they basically acknowledge the reason that you're giving to them at that time.

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All that proves is that he knew he had poor attendance.

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We know he has poor attendance from the records.

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That doesn't prove as to why he was selected.

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Well, and again, the paradigm for selection included attendance.

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That's not been disturbed.

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That was not part of the government's case saying that their selection process or methodology was improper in any way.

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I know they've now gone back to attack it to say Mr. Martinez should have done more.

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He should have done his own independent investigation.

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Again, that was not the theory in the complaint or the one presented to the administrative law judge.

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Again, if you have

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Mr. Martinez testifying that he based this on these reports that he's receiving and that's why he selected him and it was corroborated.

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We do think that testimony was credited.

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Briefly as to the due process issue, you know, we believe and we briefed it, obviously.

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We believe this court's authority basically forecloses a large part of the government's position on that.

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I know the government's taken the position that the cases... A large part or all of it?

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Well, I think a large part, but certainly I know the piece that they're arguing that the Blake construction and the Con Air decision, these were decisions that said that where the government was trying to amend the complaint and add new theories after, and actually it happened at the board level, they were trying to add new violations.

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And they've argued that technically the hearing hasn't closed when they went to move to amend the complaint.

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In practice, and I think the record clearly reflects this, you know, we had rested, the government had no rebuttal.

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They made this argument to amend the complaint.

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We objected on due process grounds.

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They started to argue.

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The judge immediately cut everybody off and said, I'll take it under advisement, and I'll deal with it on the briefing.

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And what was the content of the briefing?

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There were briefs submitted.

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And basically, we put forth why we wanted to have additional opportunity to respond to this.

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And I know part of what's been thrown back at us is we haven't established what we would have shown.

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kind of flips things on its head.

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I mean, in this context, we don't have discovery from the board.

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We do know that the witness, Maria Cortez, who was the last witness who testified to the government this evidence came out, her husband testified second.

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And he testified that they had conversations about that June conversation.

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Of course, we didn't know about this other piece when he testified.

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So in response to Judge Griffith's question, what was in the briefing?

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It was... In other words, what I'm getting at is wasn't that the opportunity to make your arguments?

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Well, at that point, it was closed.

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That's what you're saying, but... And we argued that... The judge had said she would take it on the briefs and then people filed briefs, so the issue was still open at that point.

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Suppose the judge had agreed with you and said, well, I'm going to reopen the hearing in your terms, but where she said,

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It wasn't closed.

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Let's hear more.

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Well, part of it was we didn't know what this additional evidence would look like because we didn't have the opportunity to question Mr. Maciel, our husband.

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We did point that out in the briefing.

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To the ALJ?

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To the ALJ, yes.

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You know, the judge pointed out that it was undisputed that we didn't have this opportunity.

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We do think for the board to just then conclude that we had this opportunity, frankly, as an error.

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Thank you.

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So let me just be very, very clear.

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If the complaint alleges two violations and then there's a hearing and a motion is made to amend the complaint to add a third violation,

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based on the evidence at the hearing.

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If that motion is granted, do you need our cases to say that that would be a due process violation?

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Under these circumstances, yes.

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What do you mean under these circumstances?

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That we didn't have the opportunity.

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We gained knowledge that they were adding a brand new theory, a new violation of federal law.

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What I'm trying to understand even in our cases is under this hypothetical, you have two charges in the complaint.

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And during the course of the hearing,

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there is testimony that causes the general counsel to move to amend the complaint to add a third alleged violation.

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If that motion had been granted, your argument as I'm hearing it is not that that would be a violation of due process, but rather that it would be a due process violation only if

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the record was closed and you had no opportunity to present evidence?

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Or is the argument that while you have no burden to show prejudice, in effect, you are arguing prejudice by saying you were unaware of this conversation between the husband and wife?

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Yeah, a little both, candidly.

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Yeah, that's why I'm trying to understand what, it's one thing if you're charged with smoking on two occasions and then if the third count is you refuse to recognize the union.

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I mean, you know, it's apples and oranges.

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Here, the board's view was this was a rising out of the hearing.

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And I just want to understand your position on that.

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There's no evidence or argument that this was somehow new evidence or surprise to the general counsel.

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The time to amend would have been after this witness, certainly at the close of the government's case in my position.

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That would have given us an opportunity.

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We may have asked for a continuance to prepare.

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We may have done other things.

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By the time that it's raised, the record for all intents and purposes is closed.

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We're done.

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Is your argument that, look, just because evidence comes out during a hearing that suggests that could be the basis of other claims against the employer,

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doesn't mean that we're on notice that we're going to be held to account for those other allegations.

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We need to be told that you, you know, yeah, these other sins have been mentioned and we intend to hold you to account for those other sins.

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Yes, and I think this court's authority says as much and it gives us then the opportunity to prepare a different strategy.

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Again, the government controlling the complaint

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that they had this evidence and they thought they had a new theory, for whatever reason, whether they just discovered it, got around to it, would have let us know as soon as possible, which again would have been at the end of day two of the three-day hearing.

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three consecutive days, not word one mentioned during our case in response.

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But I want to be clear, because I can hear the argument we were in the middle of the hearing on day two, you know, our whole strategy would have changed, etc.

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So I need to understand

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how far your argument goes.

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That's what I'm just trying to explore in the questioning.

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Part of the difficulty is it is speculative to know what Mr. Maciel would have testified to because again we didn't have an opportunity to go back and ask him.

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He very well could have testified that he had this conversation with his wife about this conversation in June, and that she never mentioned anything about that, which would have created major credibility or other problems.

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Again, without this pretrial discovery and this process, we're kind of shooting blind a little bit.

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I'm just getting that the rules allow an amendment to the complaint.

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Yes.

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All right.

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It is that it's a notice issue, but is it, I just need to understand if it's notice in an absolute sense or can it be notice, is it notice before the fact only or is it notice that can arise in the course of a hearing and a permissible amendment could be allowed?

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It can be the latter and it can be implicitly tried.

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And it would only be permissible if, in this case, the employer didn't object.

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In other words, the board's view of this, and I'm not, I just want to be clear here, is the witness testified, your witness denied,

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And the question is, well, what more could happen?

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So it's a quasi-prejudice inquiry, isn't it or not?

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It is a little bit, but again, not having that opportunity and not having the opportunity to pose that to the other witnesses.

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We did ask limited questions of Mr. Esparza.

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We understood that that June conversation would involve credibility issues and there were allegations tied to that conversation.

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So we did solicit and denial.

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But we did not go further than that because, again, we didn't know that this was a theory the government was following or pursuing.

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Because there's one way to read our cases saying that it's noticed beforehand and there can be no amendment without a violation of due process.

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The other circuits have taken a slightly different tack.

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And so counsel for the board distinguishes our cases by saying factually,

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distinguishable and that what our cases were talking about was what I call the apples and oranges type situation, not a situation that is explored during the hearing.

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Well, I think, again, it's different.

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I mean, the argument that it was fully litigated, I think the record establishes it was not fully litigated.

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And that's because you can show that you would have presented other witnesses, or?

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At a minimum, we would have examined Mr. Maciel.

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So that's the quasi-prejudice inquiry that is your burden?

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That is part of what, yes, it is.

[00:21:03] Speaker 02:
Okay, thank you.

[00:21:05] Speaker 02:
Thank you.

[00:21:16] Speaker 01:
Good morning.

[00:21:17] Speaker 01:
Good morning.

[00:21:18] Speaker 01:
May it please the court, my name is Nicole Lancha, and I represent the board in this case in seeking enforcement of its order, finding that the company who was packing violated section 83 in one of the Act.

[00:21:29] Speaker 01:
As the Court is aware, there are only two contested issues before it, the first being whether substantial evidence supports the Board's finding that the company discriminatorily discharged employee Rojas, one of the day shift employees.

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The other being, as we just explored, whether the Board properly allowed the General Counsel to amend the complaint.

[00:21:48] Speaker 01:
As the first issue,

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The company does not contest that the General Counsel met its initial right-line burden of proving that Rojas's union activity was a motivating factor in his discharge.

[00:22:01] Speaker 01:
And as the credit evidence shows, Supervisor Esparza admitted directly to his friend, Mauro Navarro, that he chose the day shift employees because they were stirring things up by meeting with the youth.

[00:22:13] Speaker 04:
Can I ask a question about standard of review?

[00:22:18] Speaker 04:
What was the board's standard of review of the ALJ decision in that regard?

[00:22:27] Speaker 04:
Because the board said it was not disturbing any of the credibility findings made by the ALJ.

[00:22:37] Speaker 04:
So what standard of review did the board use to overrule the ALJ with respect to World High?

[00:22:47] Speaker 01:
While evaluating the credibility determinations made by the administrative law judge, the board explained that it's established policies not to overrule those unless a clear preponderance of the evidence can show that the evidence convinces the board that those determinations are incorrect.

[00:23:05] Speaker 01:
And the judge, in this case, did credit Mauro Navarro's testimony, establishing as far as a directed mission of knowledge of animus.

[00:23:15] Speaker 01:
over the general denial of Supervisor Esparza.

[00:23:21] Speaker 01:
Now look, how many counsel points out or alleges here that if, while they're saying that the general counsel has established its prima facie case, it was weak and that somehow lightens its burden.

[00:23:34] Speaker 01:
But even under its cited case law, I believe it was Cecil in this circuit,

[00:23:40] Speaker 01:
The court did not say that the legal standard for rebutting the general counsel's initial right-line burden and case was any different.

[00:23:48] Speaker 01:
It still would have to show and persuade by preponderance of the evidence that the employee would have been discharged absent that union activity.

[00:23:58] Speaker 01:
So the burden was not lighter and the company has not met that burden here.

[00:24:02] Speaker 01:
considering the credited testimony of Mauro Navarro that Esparza admitted why he chose the day shift employees, but also the fact that the judge discredited Osmey Martinez's testimony that he alone selected the day shift employees.

[00:24:17] Speaker 01:
I believe, as Your Honor pointed out earlier, that Osmey Martinez did not review any personnel files.

[00:24:23] Speaker 01:
He even admitted at the hearing he didn't think it was important to do so.

[00:24:26] Speaker 01:
And also at the hearing, he testified that he could not remember Rojas's attendance record, let alone the attendance record of Matias Rodriguez or the other disciplinary issues of the other employees who at least did not have worse attendance records, as bad as disciplinary attitude or attendance issues.

[00:24:49] Speaker 02:
So Council argues that this methodology argument was not presented

[00:24:55] Speaker 01:
Your Honor, we're not arguing that there was a problem with the selection criteria, but the Board does note that there is no showing in the company's attempt to present its defense that they even applied the selection criteria consistently at all.

[00:25:13] Speaker 01:
And in attempting to meet its defense, it would have had to show that Rojas would have been discharged

[00:25:19] Speaker 01:
without any, absent his union activity.

[00:25:23] Speaker 01:
And it hasn't shown that he was actually discharged because of his attendance record.

[00:25:27] Speaker 01:
Yes, he could have been discharged for that reason, but that's not what the accredited testimony of Osme Martinez establishes or the accredited testimony of Mauro Navarro's testimony.

[00:25:40] Speaker 04:
Let me try to ask a better question than I did before.

[00:25:48] Speaker 04:
What did the board say that the ALJ had done wrong with respect to its conclusion about ROHAS?

[00:25:57] Speaker 01:
I believe that the ALJ focused on Rojas's limited union activity and similar points that the company raises in its brief despite the fact that it doesn't challenge the general counsel's prima facie case.

[00:26:11] Speaker 01:
The board, however,

[00:26:14] Speaker 01:
emphasize Navarro's testimony and as far as his direct admission, but as well focused on the testimony that the judge did credit but just interpreted differently.

[00:26:24] Speaker 01:
The fact that while Osme Martinez testified that he alone made the decision, the judge discredited that.

[00:26:32] Speaker 01:
The board also focused on that.

[00:26:35] Speaker 04:
Would the board say that the ALJ

[00:26:39] Speaker 04:
made, you know, incorrect findings of fact, or did the board say, we agree with all of the findings of fact made by the ALJ, but we just think de novo, that there's a different conclusion as to legally what the significance is?

[00:27:01] Speaker 04:
I don't understand how the board did what it did, what standard of review the board was using.

[00:27:09] Speaker 01:
Well, the board reviews the evidence as the judge would, although they are not the triers of fact in the sense that they are not hearing the witnesses present the testimony, which is why there is deference to the credibility determinations.

[00:27:24] Speaker 01:
However, in reading the testimony, the transcript, the exhibits, the board is allowed to draw reasonable inferences from the record, which this court then reviews for substantial evidence, whether it's such evidence that is adequate and acceptable to a reasonable mind.

[00:27:39] Speaker 01:
Here, to answer your honor's question, the board was confused by the judge's statement that he did not credit Martinez's uncorroborated testimony and then the judge did not expand on what that testimony was.

[00:27:55] Speaker 01:
Now, the board

[00:27:57] Speaker 01:
The board's decision recognizes that while Martinez and Esparza both established that Esparza had given direct oral reports on employee's attendance, Martinez's testimony did not establish that his reports on attendance was actually what the decision was based on, so that Rojas's attendance actually formed the basis for his decision.

[00:28:21] Speaker 01:
What the credited evidence does show is that Esparza had substantial input into

[00:28:26] Speaker 01:
Osmey Martinez's decision.

[00:28:28] Speaker 01:
And that input was based on the fact that those employees were stirring things up by meeting with the union.

[00:28:36] Speaker 01:
If I could just move on to the second point, if there are no further questions.

[00:28:41] Speaker 01:
The board did properly allow the general counsel to amend the complaint at the end of the hearing, but before the close of the hearing.

[00:28:48] Speaker 01:
Now the board can find a violation that isn't even alleged in the complaint.

[00:28:52] Speaker 01:
As long as there is notice,

[00:28:54] Speaker 01:
And the issue was fully and fairly litigated.

[00:28:56] Speaker 01:
And we submit that there was notice that, as far as the statement that he promised wage increases for Maciel, Cortez's husband, and Correa was made.

[00:29:07] Speaker 01:
And also, the company had the opportunity to present an evidence and a defense to rebut that claim.

[00:29:13] Speaker 04:
Is it your position that there's notice because testimony was given and the company heard it?

[00:29:22] Speaker 04:
Anything the witness says, any other bad things that the witness says that the employer did, as soon as that comes out of the witness's mouth, the employer is automatically going to notice that they have to defend against that if that could be construed as a violation of the NLRA.

[00:29:44] Speaker 01:
Well, yes and no.

[00:29:46] Speaker 01:
So first, to address where the notice began, the complaint did allege that the June 19th conversation would be the subject of two other 8A1 allegations, the unlawful interrogation and the implied threat of unspecified reprisals, which are not contested here.

[00:30:06] Speaker 01:
Cortez testified as to this conversation and noted that Esparza also made this additional promise of wage raises.

[00:30:14] Speaker 04:
Which isn't an 8A1 violation, right?

[00:30:16] Speaker 04:
It's an 8A3.

[00:30:17] Speaker 01:
No, that's a violation of Section 8A1.

[00:30:21] Speaker 01:
But also, the company had the opportunity to cross-examine her about that specific statement, and actually did cross-examine her briefly about the telephone conversation.

[00:30:30] Speaker 01:
It also presented Esparza to contradict her.

[00:30:33] Speaker 03:
But when that cross-examination took place, it wasn't part of the complaint, it wasn't part of the charge, right?

[00:30:39] Speaker 01:
It wasn't part of the initial complaint, but before the close of the hearing, the general counsel did move to add the allegation.

[00:30:45] Speaker 01:
But the company did have.

[00:30:46] Speaker 03:
But I'm just saying, I mean, the inference you were making was that at the time of the cross-examination, this was a live issue.

[00:30:54] Speaker 03:
The company had noticed that this was important.

[00:30:57] Speaker 03:
And I'm suggesting that that's not quite the case, right?

[00:31:01] Speaker 03:
The company is charged with certain issues.

[00:31:05] Speaker 03:
And the burden and the whole concept of due process is that's what we're going to be focusing on.

[00:31:10] Speaker 03:
If something, some other bad action comes up,

[00:31:15] Speaker 03:
Unless it's part of the complaint, they don't really have notice that this is going to be important, do they?

[00:31:19] Speaker 01:
Well, the purpose of notice is to not allege or present what the specific theory would be, but to allow the respondent to present a fair defense and rebuttal to... To charges that are banned, right?

[00:31:32] Speaker 01:
Right.

[00:31:33] Speaker 03:
And at the time of the cross-examination, my only point is these charges have not been made.

[00:31:37] Speaker 01:
Yes.

[00:31:39] Speaker 01:
However, it goes past the cross-examination.

[00:31:42] Speaker 01:
At the end of the hearing, when the general counsel moved to amend the complaint, the company did not ask for a recess or a continuance or seek to present perhaps rebuttal witnesses as other courts... It's literally the end of the hearing.

[00:31:55] Speaker 04:
Everybody had rested, and the general counsel says, oh, one more thing, we want to amend the complaint.

[00:32:01] Speaker 03:
And they fought that, right?

[00:32:03] Speaker 03:
They resisted that.

[00:32:03] Speaker 03:
They said it's too late, you can't amend the complaint now.

[00:32:06] Speaker 01:
Well, they objected in a phrase on due process grounds.

[00:32:09] Speaker 03:
And they won.

[00:32:09] Speaker 01:
And asked nothing else at that point.

[00:32:12] Speaker 03:
Yeah, because they won.

[00:32:14] Speaker 03:
When you win, you typically don't, you pack up your bags and walk out of the room, right?

[00:32:21] Speaker 01:
Maybe a misunderstanding, but nobody won before the hearing closed.

[00:32:27] Speaker 03:
They won the point there that the complaint wasn't going to be amended.

[00:32:31] Speaker 01:
No, the judges are ruling on that.

[00:32:33] Speaker 03:
I'm sorry, you're right, took it under advisement and briefing.

[00:32:35] Speaker 03:
I'm leading into actually, that's what's... So you're saying what they should have done at that point in time when the judge said, I'll take it under advisement, said briefing on it, they should have called witnesses and acted as if the complaint was going to be in fact amended?

[00:32:47] Speaker 03:
That seems an odd...

[00:32:48] Speaker 01:
No, Your Honor.

[00:32:48] Speaker 01:
We're saying that they could have, under factors that other courts have considered, asked for a continuance.

[00:32:54] Speaker 01:
They could have objected to the introduction of the evidence while Cortez was testifying about it.

[00:32:59] Speaker 03:
Or they could have fought the whole idea that you can amend the complaint, which they did.

[00:33:05] Speaker 01:
Right?

[00:33:06] Speaker 03:
And they prevailed on that.

[00:33:08] Speaker 01:
After the briefing.

[00:33:09] Speaker 01:
Yeah.

[00:33:09] Speaker 01:
Ultimately before the judge.

[00:33:10] Speaker 01:
However, my final point on that, why we submit that they had notice, relates to the briefing.

[00:33:18] Speaker 01:
The judge reserved the ruling on that issue and asked the company and the general counsel to discuss it in their briefs.

[00:33:24] Speaker 01:
Now, the company did have notice of the alleged Section 883 layoffs as violations.

[00:33:31] Speaker 01:
Now, the judge found as a fact that

[00:33:34] Speaker 01:
that part of that phone conversation with Cortez, including the interrogation, the statements made about the unspecified reprisals, and the promise of benefits, used that in determining that the layoffs of Masiala and Correa were unlawful.

[00:33:50] Speaker 01:
The company was obligated to accept to the judge's factual finding that Esparza made that statement, even though it prevailed before the administrative law judge, and it did not do so.

[00:34:00] Speaker 01:
So even in the briefs, it had the opportunity to contest that the statement was even made and to object to that, but it did not do so.

[00:34:10] Speaker 04:
How do you get around the fact that in Conair we said that there's no burden on the employer to show prejudice?

[00:34:23] Speaker 01:
Well, the employer, the person who is alleging that a due process violation occurred would still have to show that they did not have notice and that they did not, the issue was not fully and fairly litigated.

[00:34:33] Speaker 01:
They had no opportunity to

[00:34:35] Speaker 01:
present its defense.

[00:34:38] Speaker 04:
Because you just argued prejudice.

[00:34:42] Speaker 01:
No, I believe that I was arguing about how it was fully litigated, what the company had the opportunity to do and yet did not.

[00:34:49] Speaker 04:
It was fully litigated, I guess, in your view, because he knew that it was, the testimony came in, but

[00:35:06] Speaker 04:
I mean, to go back to Judge Griffith's question, you know, a lawyer doesn't, you know, picks his or her battles and isn't going to necessarily try to rebut or dispute or put in collateral evidence to disprove every statement that's made at a hearing, unless they have noticed that that statement is going to be used against them, substantive.

[00:35:32] Speaker 04:
And I don't understand how you're saying that they had the notice or that in that sense it was fairly litigating.

[00:35:41] Speaker 01:
As an initial matter, this court has recognized in a decision called Desert Hospital versus NLRB that the burden of showing prejudice on assertively erroneous rulings is on the party claiming the injury, which would here be Bruce Packett Company.

[00:35:54] Speaker 01:
But as to notice, the company knew

[00:35:57] Speaker 01:
that one, that phone conversation would be an issue for other violations, but also that in the judge's decision, at a minimum, that those statements could be used to establish animus and knowledge on the part of the company in laying off the other employees, including three of which it has not contested, nor has it contested the 8.8 ones, aside from the one related to this complaint amendment.

[00:36:20] Speaker 01:
And again, it has a burden to, it has an obligation to accept any fine day, factual or legal, with which it disagrees that it wants to preserve for review before the board and before the court.

[00:36:33] Speaker 01:
And because it did not do so, the company's not contesting that as far as it made the statement of promise of wager decreases.

[00:36:42] Speaker 02:
I mean, this court seems to have set a sharp line.

[00:36:48] Speaker 02:
And I know you're resisting it.

[00:36:52] Speaker 02:
We're bound by it.

[00:36:53] Speaker 02:
And just think of the implications of your argument.

[00:36:59] Speaker 02:
For some of the reasons my colleagues have mentioned.

[00:37:02] Speaker 02:
Anything further?

[00:37:05] Speaker 01:
Nothing further, Your Honor.

[00:37:06] Speaker 01:
I just want to ask this Court to enforce the court's order in full and deny the company's petition for review.

[00:37:13] Speaker 01:
Thank you.

[00:37:22] Speaker 02:
Petitioner?

[00:37:26] Speaker 05:
Just briefly, Your Honor.

[00:37:29] Speaker 05:
If I heard correctly, Council for the Board, the statement that the Board was confused by Osmeen Martinez's testimony and the implications of it, they certainly drew a conclusion from it.

[00:37:42] Speaker 05:
I would say to you that if they were confused, it was not proper for them to then draw conclusions from it.

[00:37:48] Speaker 02:
What do you understand the standard to have been applied by the board?

[00:37:54] Speaker 05:
I think it's equivalent to the standard that you would apply here to their decisions.

[00:37:59] Speaker 05:
It's to give deference certainly to credibility findings.

[00:38:03] Speaker 05:
And if there's evidence that can be applied to existing established legal principles,

[00:38:09] Speaker 05:
I don't think it is proper for the Board to just substitute its beliefs or findings just because they may have a different feel about it.

[00:38:20] Speaker 05:
So I think it is analogous to this Court's review.

[00:38:23] Speaker 05:
Understanding that this Court's review is a little bit more deferential certainly as to some issues.

[00:38:30] Speaker 05:
The point also about that we didn't fight this piece about this June 2009 conversation, I think that kind of stands our objection and due process on its head.

[00:38:47] Speaker 05:
We did object the moment that it came up that we didn't subsequently take exception to one factual piece that then got put in and used for another reason doesn't convert into an unfair labor practice or a violation of the National Labor Relations Act.

[00:39:05] Speaker 05:
So if there are no further questions.

[00:39:07] Speaker 02:
All right.

[00:39:08] Speaker 02:
Thank you.

[00:39:08] Speaker 02:
We'll take the case under advisement.

[00:39:10] Speaker 05:
Thank you.