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Case number 14-1197 at L, Dover Energy, Inc., Black Mirror Division, Petitioner versus National Labor Relations Board.

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Mr. Eastland for the petitioner, Ms.

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Von Wilpur for the respondent.

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Mr. Eastland?

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You're a long way from home.

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Yes, good morning.

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May it please the court.

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Keith Eastland from the law firm of Miller Johnson in Grand Rapids, Michigan on behalf of Dover Energy Blackmore Division.

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May I please reserve one minute for a bottle.

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Your honors, this issue, the issue in this labor case is not complicated and the facts are really undisputed.

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The board here found that Blackmer violated section 8A1 of the act by issuing a verbal warning to a union steward, Mr. Thomas Kanta, after Mr. Kanta twice during collective bargaining negotiations with the UAW made

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Information requests that were beyond the scope of his authority as the union steward on second shift, unauthorized by the collective bargaining agent, the UAW, and that were unprotected as a matter of law.

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Can I ask a question about would it have been an unfair labor practice for the company to have reprimanded Mr. Canta

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for submitting the second information request.

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So in other words, no mention of future, but just you submitted a second request, it was improper, we're not giving you the information, and we're hereby disciplining you with a reprimand.

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Yes, Your Honor, that would not be an unfair labor practice because that information request was also unprotected because I think you have to remember that the right to request information is owned exclusively by the UAW.

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Right?

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The duty to provide the information arises or emanates from the duty to provide, or from the duty to bargain under the Act, under Section 8D.

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Has the Board conceded that that would not have been an unfair labor practice?

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Wouldn't it, wasn't their position initially that that would have been an unfair labor practice?

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Yes, I would I would submit to this court that they have conceded it.

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And the reasons are because it was part of the complaint.

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It was tried.

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The administrative law judge rejected that with sound reasoning based on evidence in the record.

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And that issue was not that factual finding was not disturbed by the board.

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even though it could have been appealed.

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Did they accept?

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Did they list an exception to that finding?

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No, the board's decision in a footnote does state that it believed that it was unnecessary to rule on that issue.

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So the whole... So the general counsel

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took exception to that finding by the ALJ.

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They did not take specific exception to that finding.

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They did not.

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No.

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There's general language, if you look at the exceptions in the record, that's just a general exception to the failure to find the allegations of violations as alleged in the complaint.

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But there's lots of authority that says that's not enough.

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In fact, I've been on the other end of that case before.

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Aren't we really

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arguing about the change that the board made in the ALJ's, well, not in the findings, but the ALJ found this request was completely, totally, whatever, unauthorized.

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He didn't have to go any further than that.

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He didn't have to say, now, if it had been authorized, this was protected information.

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The board of the general counsel said, well, he stopped too soon.

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He should have said.

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But the respondent independently

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should not have issued this warning because of the way it could be interpreted.

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Now, and aren't we really arguing about whether such requests, similar requests such as this, which clearly goes to the nature of the request, which is unauthorized, in any way could be read as also including an authorized request

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Yes, Your Honor, a few points in response to your question.

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The ALJ did make a finding that on the board's theory here is that a reasonable person in all the factual circumstances facing Mr. Canta, his future Section 7 rights would be chilled.

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That's essentially the theory.

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But they don't concede, I mean they don't dispute that this request was unauthorized.

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No, that's an absolute fact.

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It's unauthorized by the Union and unprotected as a matter of law.

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Those facts are undisturbed.

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And I would agree with you that the issue really is, and I would submit it this way, I would suggest that the issue is

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Is there substantial evidence in the record?

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And did the board actually consider context?

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So that's what this circuit has said.

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You've got to have substantial evidence in the record.

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You've got to point to actual evidence.

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And you've got to explain the basis for the conclusion.

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Of what?

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Of the finding.

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We don't have to worry about the evidence supporting whether it was unauthorized or not.

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Correct.

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It was unauthorized.

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Correct.

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The board's finding, Your Honor, is that by referencing the unauthorized, unprotected requests, that Mr. Canta, or better said, a reasonable person in Mr. Canta's shoes,

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would believe that that caution, hey, you can't do this because we've checked with the union twice and it's unauthorized and it's unprotected, that that somehow would quash or chill his future rights to bring actual requests for information that is authorized by the UAW and that is within the scope of authority.

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But Mr. Ewing, part of the context here is Mr. Cantor saying, you mean, if I ask for information, I could be fired?

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And instead of

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the company responding no no no only you know of course you can ask for information relating to your duties as a union steward and supportive grievances but here this is you know collective bargaining stuff and

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You know, for better and for worse, you're represented by the people we're bargaining with.

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And it just really doesn't come across that way.

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And it seems like our decision in the Daniela Chrysler case is pretty strongly supportive of what the board did here.

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It's a blanket threat that's going to make someone think, maybe I shouldn't.

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This guy's not a lawyer, the union steward.

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He's relatively new in this position.

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And he's trying to get clarification.

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And the context shows the clarification that he saw was pretty broadly

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Your Honor, if I may, two points.

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First, as to the evidentiary point that you raised, the actual evidence is the testimony of the HR director, Mr. Kaminsky, who said when he handed that information request in person to Mr. Kanta, he explained and reiterated that that was given because he acted beyond the scope of his employment.

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and the ALJ credited the cogent testimony of Mr. Kaminsky over any conflicts.

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And so actually the record as it stands, because that was not accepted to, the credibility findings were not accepted to, the ALJ credited Mr. Kaminsky's versions of that event.

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And so the shrugging of the shoulders is actually not a finding of fact in this case.

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Didn't the ALJ say in fact that, well, Mr. Kaminsky was asked, was anything else said beyond

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You know, the discussion with Mr Conta about why it was given the warning and Mr Conta saying that he thought that things were rigged or that there were backdoor dealings going on.

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Mr Kaminsky said no, nothing else was said.

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So in effect, Kaminsky directly contradicted, um, Conta on that and ALJ credited Kaminsky.

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That's correct, Your Honor.

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Right.

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And the other point I wanted to, in response to the prior question from the court, was the reference to the Daimler-Chrysler decision.

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We hit that, I think, in our initial brief, anticipating that that would be a question for the circuit.

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That case shows exactly why this circuit mandates you consider context.

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In that case, it was undisputed that the requests were related to grievance processing.

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There was some a little bit of a judges Edwards decision talks about how the last chance agreements that might have been maybe not relevant, but it was least relevant enough that the union could request it.

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And the key distinction there, your honors, is all of those requests were authorized by the union.

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All of them were authorized by the union.

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And that's a very important question.

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And I think the failure to consider context is actually an error of law.

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It's arbitrary and capricious, and there's circuit law from this court.

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What do you do about the parenthetical?

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I mean, if the parenthetical had been left off, that is, describing what kind of information Canta had requested and instead had

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tracked the language of the first denial, saying, you asked for this financial relationships and all that sort of stuff.

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That's what the board seems to hang its hat on, that because the description of the information sought, which was protected information, but not disclosable to an unauthorized request,

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Right, I think by focusing on that, by parsing that warning so narrowly, the board commits error because it doesn't consider the whole context of the warning.

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In fact, this court's decision in AdTrans in discussing whether solicitation policy did the same thing, they criticized the board for not looking at the whole language.

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In that case, it was a policy.

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But that's exactly what the board's not allowed to do.

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parse something and ignore all of the other record evidence of context, which shows that any person in Mr. Kansas, any reasonable person in Mr. Kansas' shoes, would know, because he was told that he was only being cautioned for unauthorized requests because they would interfere with the bargaining relationship with the union.

[00:11:05] Speaker 03:
I see that my time is up and I... I want to ask you a question about... Could you go to the board's order?

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Yes.

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Oh, the paragraph right before the amended conclusions of law that begins here, the August 23rd warning.

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It's on Deferred Appendix 15.

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Yes, I have it.

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Okay.

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First couple sentences.

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Then the sentence, but future requests for such information could well be protected.

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Nobody disputes that, but if you change it to say, but such future requests

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for information could well be protected.

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That is absolutely false.

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And that's what the warning said.

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That is, similar requests such as this will lead to discipline.

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I mean, it's the change from the focus on the unauthorized request to what it was he was asking for.

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Yes, he can ask for that information in a different

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role, but in this role he has no right to it at all.

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And this was the second time he had, as ALJ said, burdened the employer right at the time when the bargaining was at its most intense, I think he said, in August.

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Yes, Your Honor, in response to that, I think that's precisely why there is no evidence.

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I mean, the similar request has to refer to the actual evidence.

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The only actual evidence is unprotected, unauthorized request.

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So similar can only refer to that.

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I would agree with that.

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Well, but I mean, I think the way the board is reading it, at least, is, and this is the trouble, and this is why we have a dispute, is that

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As Judge Henderson said, the parenthetical talks about a certain kind of information.

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That's the request.

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The first sentence is a characterization, but the actual request is a request for employee pay information, which is at the core of what a steward dealing with grievances is dealing with.

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requests such as this.

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So there is ambiguity.

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It could be requests such as a frivolous request outside of bargaining by someone not authorized to participate.

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Clearly that's a tenable reading.

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But the risk is that it's also to this relatively low union person saying, if you ask for this kind of thing, we're going to get upset with you.

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And that ambiguity, I think, is what the board is concerned with.

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With all due respect, your honor, I would submit that there is no ambiguity when the board does its job, and that is considered context.

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As the dissent properly noted, the reference to continued frivolous requests, the parenthetical just refers to the actual information requested.

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What the board cannot do is ignore those next two sentences in that paragraph that says you are not on the bargaining committee and failed to work within the parameters

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of the committee, and I won't read it to you because you can see it.

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But the point is, when you actually consider context as this circuit court requires, the only evidence of context shows that no reasonable person could view it that way.

[00:14:30] Speaker 01:
Let me ask one question about that second request.

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He requests all employee paychecks for two particular pay periods and then all employee total hours.

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All means, I guess, all every employee in the company.

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Is there any circumstance where in investigating a legitimate grievance, he would be entitled to all employee paychecks?

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My initial response to that, Your Honor, would be no, because he's the steward for three people on second shift.

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And so his authority would be cabin.

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Now, could the UAW say, no, we want you to investigate that and authorize that request?

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Absolutely.

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But that's a critical point in this case, is this employer has a great relationship with the UAW.

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When they got the request, both requests, the second one included, they went and asked the union, hey, is this authorized?

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If it's authorized, then it would have been responded to.

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Right.

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And that's part of Canta's concern here, right, is that the union and the employers seem to have a great relationship.

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And he's concerned that the employees he's representing may be disserved by what's going on.

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But I guess what your position is, is the labor law doesn't protect that.

[00:15:48] Speaker 02:
No, that's not our position, Your Honor.

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The position here is that the union, as the exclusive 9A representative, controls the right to request the information.

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Now, if Mr. Cantor believes that the union is breaching its duty of fair representation, acting inappropriately, he can file a charge under 8B with the board.

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The board can investigate.

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They can issue subpoenas.

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What Mr. Cantor

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does not have the right to do is to usurp the power of the union, the right of the UAW.

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And that's exactly the rationale, it's the majoritarian principle that the Supreme Court discusses in Emporium Caldwell, which is referenced by the ALJ in its decision.

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That's why you can't have it think about

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Think about what we would have if we had any large union employer, 400, 500 employees.

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If the union can't control its right to request information, what's to stop Mr. Canto or 200 other people from filing an information request every single day of bargaining?

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While the parties are trying to cut a deal, while they're getting ready for ratification, I see no point.

[00:16:46] Speaker 04:
But it's also, once you know that this guy is not authorized, it's not a huge burden on the company that he submits requests, right?

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I mean, he's submitting requests.

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You know, it seems like it's already a non-burden.

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You know, Kant is not someone that's part of the bargaining team.

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He's submitting requests.

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Put them in the inbox and go on with bargaining.

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So the burden actually is a little unsympathetic, no?

[00:17:10] Speaker 02:
Well, Your Honor, I think that's the point of why this employer took the action and did it.

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This isn't discipline.

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This is global counseling.

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Hey, stop this.

[00:17:18] Speaker 02:
Because it wants to avoid that disruption.

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And because it's unprotected and unauthorized, it had the right to do that.

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It didn't violate federal labor law.

[00:17:28] Speaker 02:
Thank you.

[00:17:28] Speaker 03:
All right.

[00:17:31] Speaker 03:
Ms.

[00:17:31] Speaker 03:
Von Wilpert.

[00:17:32] Speaker 05:
Good morning.

[00:17:33] Speaker 05:
Good morning, Your Honors.

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May it please the court?

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My name is Marnie Von Wilpert, and I represent the National Labor Relations Board.

[00:17:39] Speaker 05:
Your Honors, the issue in this case is not to parse the language of a written warning to discern its best reading.

[00:17:45] Speaker 01:
Instead, it's- Let me just, right off the bat, try to make sure I understand what the board's position is.

[00:17:51] Speaker 01:
If the company had reprimanded Mr Kanta for submitting an improper information request after the second request, would that have been an unfair labor practice?

[00:18:07] Speaker 05:
Your Honor, I cannot prejudge what the board would rule in that case, but that was not before the board here.

[00:18:11] Speaker 01:
Answer my question.

[00:18:14] Speaker 01:
Would that... You go to law, is it or isn't it?

[00:18:16] Speaker 01:
What's your position?

[00:18:19] Speaker 05:
You're under my position.

[00:18:20] Speaker 05:
I cannot speak for the board, but most likely the board will look at the warning and look at the context and decide whether or not saying a warning.

[00:18:28] Speaker 01:
I'm saying they reprimanded.

[00:18:29] Speaker 01:
They didn't say anything about future.

[00:18:32] Speaker 01:
They just said we're reprimanding for submitting this improper information.

[00:18:40] Speaker 01:
Was that, would that have been improper discipline?

[00:18:42] Speaker 05:
Not necessarily, Your Honor.

[00:18:44] Speaker 05:
There's nothing in this decision that says that the company may not discipline its employees.

[00:18:48] Speaker 05:
All this decision is saying is when it does, it cannot impinge on their future right to engage in protected activity.

[00:18:54] Speaker 01:
So what you're saying in this case, the position that the board is taking is that it would have been okay for them to actually discipline him

[00:19:01] Speaker 01:
But because they decided to be lenient and not actually discipline him and give him a verbal warning, which is below discipline, and say, don't do this anymore, then they violated the law when they could have disciplined him.

[00:19:18] Speaker 05:
Yes, Your Honor, the board didn't reach whether or not this discipline was lawful, but it didn't say it was unlawful.

[00:19:24] Speaker 05:
What it did say was the future threat of discipline was the problem here.

[00:19:28] Speaker 05:
But you're right, the board did not say it was unlawful to issue the discipline, but the board didn't rule on that.

[00:19:33] Speaker 05:
It was specifically noted that we are not going to decide whether this request is protected or not, or whether this discipline was lawful.

[00:19:39] Speaker 05:
So my opponent counsel is incorrect to say, as a matter of law, this request was unprotected because the board did not decide that matter of law.

[00:19:47] Speaker 01:
The problem I'm having with your position is that in both of his information requests, he stated what the purpose was for you.

[00:19:55] Speaker 01:
Yes, Your Honor.

[00:19:55] Speaker 01:
And they had nothing to do with grievances of any of the people that he represented.

[00:20:01] Speaker 01:
No, Your Honor.

[00:20:02] Speaker 01:
As a shopstool, right?

[00:20:05] Speaker 01:
So when the company says similar requests, that's part of the context, right?

[00:20:11] Speaker 01:
Yes, Your Honor.

[00:20:12] Speaker 01:
That he knows

[00:20:14] Speaker 01:
that that's part of the context of the kind of requests that he can't submit anymore.

[00:20:19] Speaker 01:
So how is that potentially chilling him, or it's not a subjective state.

[00:20:28] Speaker 01:
It's a reasonable person's state.

[00:20:30] Speaker 01:
How can any reasonable person think that if they're actually submitting a request related to agreements that they really have the authority to investigate, that that's being chilled?

[00:20:42] Speaker 05:
Because, Your Honor, that's not all the verbal warning said.

[00:20:44] Speaker 05:
It specifically listed out the type of information he very well may seek in the future, such as employee pay and hour information.

[00:20:51] Speaker 05:
What if you took that out?

[00:20:53] Speaker 05:
What if you took the parenthetical out?

[00:20:55] Speaker 05:
That would help, Your Honor, but there's other issues with this warning, such as this objective and vague language of frivolous requests

[00:21:00] Speaker 05:
interfering with the operation of the business.

[00:21:02] Speaker 03:
Continued frivolous requests, which refers back to the first one, which asked for the relationship between immediate children, wives, spouses, well, spouses, pensioners,

[00:21:16] Speaker 03:
And that was severely rejected as well.

[00:21:20] Speaker 03:
I want to make clear about something.

[00:21:22] Speaker 03:
Are you saying that the board is not taking a position on whether this request was unauthorized?

[00:21:28] Speaker 03:
Yes, not unauthorized, whether it's protected.

[00:21:31] Speaker 03:
So authorized and protected are two different things.

[00:21:33] Speaker 03:
Well, it's asking for protected information.

[00:21:37] Speaker 03:
But the request was unauthorized by the union in this case.

[00:21:41] Speaker 05:
But all that means is that the company does not have a duty to provide that information.

[00:21:46] Speaker 05:
That does not mean the request itself was not protected.

[00:21:48] Speaker 05:
Employees who work together for the mutual aid protection may ask the company something

[00:21:53] Speaker 05:
even outside the context of the union.

[00:21:55] Speaker 05:
It doesn't mean that the employer has to provide that information.

[00:21:58] Speaker 05:
That would be different.

[00:21:59] Speaker 05:
The duty to provide information would be based on whether or not it was authorized by the union.

[00:22:04] Speaker 05:
But his action in making a request in his capacity as a steward would necessarily be protected in the future.

[00:22:10] Speaker 04:
Here, Your Honor.

[00:22:10] Speaker 04:
Would necessarily or wouldn't?

[00:22:13] Speaker 05:
I'm sorry, it could necessarily be protected.

[00:22:16] Speaker 05:
I apologize.

[00:22:17] Speaker 05:
Here, it wasn't only referring to frivolous information requests as in the parenthetical way in our information.

[00:22:25] Speaker 05:
It also stated that Mr. Conta should not interfere with the operations of the business.

[00:22:29] Speaker 05:
That's very similar to the kind of verbal threat the company made in Daimler-Kreisler when it said, any overburdening requests will be disciplined.

[00:22:38] Speaker 05:
This court struck that down.

[00:22:39] Speaker 05:
But the request was authorized in Daimler.

[00:22:42] Speaker 05:
Yes, Your Honor, but that's not what this Court relied on when determining that the future threat of discipline was the issue there.

[00:22:48] Speaker 05:
It did not say, because this request was authorized, all future would be.

[00:22:52] Speaker 05:
It said that language is overbroad and it's vague, and that would chill a union steward's determination to make future requests.

[00:23:00] Speaker 01:
The petitioner said in their opening brief at page 20 that the Board conceded that neither information request was protected by the Act.

[00:23:09] Speaker 01:
I read your brief, and I couldn't find any place where you disputed that that had been conceited.

[00:23:15] Speaker 01:
Did I miss that?

[00:23:17] Speaker 05:
Yes, Your Honor, we did.

[00:23:18] Speaker 05:
We seated, especially pointing to Board footnote four on deferred dependence 15.

[00:23:24] Speaker 05:
The board did not reach whether it was protected or not.

[00:23:26] Speaker 05:
Where did you say that in your brief?

[00:23:28] Speaker 05:
Yes, Your Honor, we did.

[00:23:29] Speaker 05:
I could find the page for you.

[00:23:31] Speaker 01:
What did you mean at footnote six of your brief on page, I guess it's 22?

[00:23:41] Speaker 05:
I apologize, let me find it.

[00:23:48] Speaker 05:
Oh, which part, Your Honor?

[00:23:50] Speaker 01:
What does the?

[00:23:51] Speaker 01:
Footnote six.

[00:23:52] Speaker 01:
Footnote six, the beginning with more over.

[00:23:55] Speaker 05:
Oh, the board did not hold the warning unlawfully discipline the request.

[00:23:59] Speaker 05:
The board did not reach that issue.

[00:24:01] Speaker 05:
So here, the company could have very legally disciplined Mr. Conta, but it could not have done so in a way that... So that's why I don't understand your position.

[00:24:10] Speaker 01:
You're saying that the board did not hold that the company couldn't have disciplined him.

[00:24:17] Speaker 05:
Yes, Your Honor, that's true.

[00:24:19] Speaker 01:
And then the petitioner said that the board has conceded that it was unprotected conduct.

[00:24:27] Speaker 01:
It would have to be unprotected for the board to say that the company could legally discipline him, right?

[00:24:35] Speaker 05:
No, Your Honor.

[00:24:36] Speaker 05:
That's not the case.

[00:24:37] Speaker 05:
First, the board here did not reach the issue of whether it was protected.

[00:24:41] Speaker 05:
Second, the board did not say that the company may not discipline its employees.

[00:24:45] Speaker 05:
All it is saying is that when it does discipline its employees, it cannot do so in a way that threatens the employees' future ability to engage in protected activity.

[00:24:53] Speaker 04:
That's all the board said here.

[00:24:54] Speaker 04:
You're saying this is about asking for information which... Yes, Your Honor.

[00:24:57] Speaker 04:
employee rank-and-file employees can do, union members can do, union stewards can do.

[00:25:02] Speaker 04:
The company's duty varies depending on whether the request is authorized or not.

[00:25:08] Speaker 04:
But asking for information typically is not something that employees are prohibited from doing.

[00:25:15] Speaker 04:
And that's, and you're saying given the nature of

[00:25:21] Speaker 04:
the freedom to organize in the workplace, when an employer disciplines something that is about the exchange of information, it has to be especially clear.

[00:25:30] Speaker 04:
So it's the way that it was done.

[00:25:31] Speaker 04:
It's not the fact of this conduct being disapproved by the employer.

[00:25:37] Speaker 05:
Yes, Your Honor, exactly.

[00:25:38] Speaker 05:
And the board tried to explain that footnote, that there does not need to be protected activity before the warning to make this unlawful.

[00:25:46] Speaker 04:
What's your best authority for that?

[00:25:48] Speaker 04:
Has our court ever held that you can have no Section 8A1 violation but nonetheless find that there was interference with future protected activity?

[00:26:02] Speaker 05:
Uh, not specifically this court, your honor.

[00:26:04] Speaker 05:
I'm in dining the Chrysler.

[00:26:05] Speaker 05:
It did say that the threat was unlawful because it impinged on the union stewards right to engage in future activity.

[00:26:11] Speaker 05:
The board has previously held us over and over in par excellence.

[00:26:15] Speaker 05:
For example, an employer fired an employee who was about to talk to about wages with her fellow employees.

[00:26:20] Speaker 05:
When the when the company found that out, it nipped it in the butt and fired her.

[00:26:23] Speaker 05:
And she hadn't had the chance to engage in protected activity yet, but the board found that was a violation for the same policy reasons as if there were protected activity ahead of time.

[00:26:32] Speaker 05:
In Ellison Media Co, for example, when two employees were complaining about their employer's sexually inappropriate comments, the board didn't decide whether their specific complaints were protected, but did say if you issue an overly broad warning that says stop gossiping and stop complaining,

[00:26:47] Speaker 05:
That can be read to say don't ever talk about your rights.

[00:26:49] Speaker 03:
Wait, are you talking about Ellison Media?

[00:26:51] Speaker 03:
I'm sorry, Your Honor?

[00:26:51] Speaker 03:
Are you talking about Ellison Media?

[00:26:53] Speaker 03:
Yes, Your Honor.

[00:26:53] Speaker 03:
That's in your footnote, but Ellison Media, that email they did find was protected.

[00:26:58] Speaker 03:
It was the sexual assault email that went to the wrong person.

[00:27:03] Speaker 03:
They did not pass on that.

[00:27:05] Speaker 03:
They did not, Your Honor.

[00:27:06] Speaker 03:
And that's what I'm saying.

[00:27:07] Speaker 03:
Well, I know when you cited it for saying that it's unnecessary to decide it.

[00:27:12] Speaker 05:
Exactly.

[00:27:12] Speaker 05:
That's what I'm trying to say, Your Honor.

[00:27:14] Speaker 05:
I apologize.

[00:27:15] Speaker 03:
No.

[00:27:16] Speaker 03:
Put note four begins.

[00:27:17] Speaker 03:
It's unnecessary for us to decide whether the requests themselves were protected activity.

[00:27:24] Speaker 03:
You then cite Ellison.

[00:27:27] Speaker 03:
In Ellison, you've got the parenthetical declining to pass on whether the email was self-protected.

[00:27:33] Speaker 03:
There, the board did find that it was protected, the email that triggered the this has got to stop warning.

[00:27:43] Speaker 05:
you read it.

[00:27:46] Speaker 03:
I'll read it.

[00:27:47] Speaker 03:
I read it as having, uh, found that.

[00:27:50] Speaker 05:
Okay.

[00:27:50] Speaker 05:
Um, the board stated there that what led to the email was protected the conversations.

[00:27:56] Speaker 03:
Um, that what now?

[00:27:57] Speaker 05:
I'm sorry?

[00:27:59] Speaker 05:
What prompted the email?

[00:28:01] Speaker 05:
The idea of discussing the supervisor's sexually inappropriate comments, but in the specific email itself, the content, it didn't decide whether the words stated in the email are protected.

[00:28:11] Speaker 05:
It just stated what led to it, those discussions would be protected.

[00:28:15] Speaker 05:
For the your honor, any ambiguities in this warning are construed against the company as the author of the warning.

[00:28:21] Speaker 05:
It is their job to make sure it is a narrowly tailored warning.

[00:28:24] Speaker 03:
Where's the ambiguity?

[00:28:26] Speaker 03:
Where's the ambiguity in the redundant

[00:28:34] Speaker 03:
such requests, similar requests, such as this.

[00:28:38] Speaker 03:
They could have said similar requests, they could have said requests such as this.

[00:28:41] Speaker 03:
They said similar requests such as this.

[00:28:43] Speaker 03:
What is ambiguous about the description of the unauthorized request he made?

[00:28:50] Speaker 05:
Well, Your Honor, the words unauthorized are nowhere on the face of this warning.

[00:28:54] Speaker 05:
Second, it specifically details.

[00:28:56] Speaker 03:
Well, I'm not saying it is.

[00:28:58] Speaker 03:
I'm saying, what is your interpretation of what similar and such as this refers to?

[00:29:06] Speaker 03:
Such as this refers to photocopies, employee paychecks, spreadsheets.

[00:29:10] Speaker 03:
No, it modifies requests.

[00:29:13] Speaker 03:
It doesn't modify the information.

[00:29:15] Speaker 03:
It modifies requests.

[00:29:17] Speaker 03:
And the requests, there were two of them,

[00:29:21] Speaker 03:
that were both unauthorized?

[00:29:23] Speaker 05:
They were in that context.

[00:29:24] Speaker 05:
That doesn't mean in the future that Mr. Conta could not ask for employee pay information in the future.

[00:29:30] Speaker 03:
It says at the very top... All right, let me ask you this.

[00:29:32] Speaker 03:
If he makes an unauthorized request in the future... Yes, Your Honor.

[00:29:36] Speaker 03:
An unauthorized one... Yes, Your Honor.

[00:29:38] Speaker 03:
Is he going to... Can he be disciplined?

[00:29:41] Speaker 05:
Possibly, Your Honor.

[00:29:42] Speaker 05:
But we have to look at the context of the request.

[00:29:45] Speaker 05:
But the point is here is he was chilled from making further requests by the language in this warning.

[00:29:50] Speaker 05:
Moreover, for this court to overturn the board's holding, the company has to show the board's reading was unsupported or unreasonable.

[00:29:57] Speaker 05:
It's not unreasonable to see language such as burlesque requests, including copies of employee hour and pay information.

[00:30:03] Speaker 03:
And one of the board members thought it was unreasonable.

[00:30:06] Speaker 03:
And so did the ALJ.

[00:30:08] Speaker 03:
So if there were no more questions.

[00:30:10] Speaker 01:
Let me just ask one final question about you relying your brief

[00:30:14] Speaker 01:
on this testimony from Mr. Konto that he asked, you know, if I make further requests, am I going to be fired?

[00:30:21] Speaker 01:
And that Kaminsky supposedly shrugged his shoulders.

[00:30:25] Speaker 01:
Didn't the ALJ credit Kaminsky over Konto on that point?

[00:30:33] Speaker 05:
The ALJ made credibility determinations on that point, but that's not the issue here.

[00:30:38] Speaker 05:
Because the board could read exactly what happened in the warning as well.

[00:30:40] Speaker 05:
We're not relying on credibility here.

[00:30:42] Speaker 01:
We're relying on whether or not this in your brief to make the argument that somebody would be chilled and that Kanta was indeed chill.

[00:30:52] Speaker 01:
But I'm trying to get your response to the point that the ALJ seem to have not credited that in the board and their decision didn't explain that they were crediting content over convinced he or upsetting any of the ALJ's factual findings.

[00:31:09] Speaker 01:
So what's your basis for relying upon that evidence if it wasn't credited by the AOJ?

[00:31:16] Speaker 05:
Your Honor, I apologize.

[00:31:17] Speaker 05:
We didn't rely on the evidence.

[00:31:18] Speaker 05:
We put it in our statement of facts to detail the facts.

[00:31:21] Speaker 05:
But here, the law is clear.

[00:31:22] Speaker 05:
Whether or not the coercion was effective is not part of the analysis.

[00:31:25] Speaker 05:
So we did not rely on that in our argument at all.

[00:31:28] Speaker 05:
All we relied on is whether or not a reasonable employee would see information about frivolous requests that included hour and pay and said you will be discharged if you do similar things in the future.

[00:31:40] Speaker 05:
Mr. Conta will reasonably have to be an adversary to the company when making future requests.

[00:31:45] Speaker 05:
We'll have to steer clear of the company's decision of what frivolous is when he makes those requests, or else he could be discharged.

[00:31:51] Speaker 04:
So when you say in your brief at page seven, you quote, when Conta read the warning as Kaminsky, you mean if I ask more questions, I could be fired?

[00:32:00] Speaker 04:
Kaminsky did not answer.

[00:32:01] Speaker 04:
He just shrugged his shoulders.

[00:32:03] Speaker 04:
And then you say Conta has not made any more information requests.

[00:32:06] Speaker 04:
So you don't think, the board is not relying on that as part of the context.

[00:32:10] Speaker 04:
Material context, it's not.

[00:32:13] Speaker 05:
No, Your Honors, it's not.

[00:32:14] Speaker 05:
It's just part of the statement of facts.

[00:32:17] Speaker 05:
Here, the only issue is not whether he was actually coerced, whether a reasonable employee would feel chilled.

[00:32:23] Speaker 05:
And the board submits it would.

[00:32:25] Speaker 05:
All right, thank you.

[00:32:27] Speaker 03:
Does Mr. Eastlund have any time left?

[00:32:31] Speaker 03:
OK, why don't you take a couple minutes.

[00:32:34] Speaker 03:
You're new to our circuit.

[00:32:35] Speaker 03:
You can't really reserve time.

[00:32:38] Speaker 02:
I apologize.

[00:32:40] Speaker 03:
I'm usually in Cincinnati.

[00:32:42] Speaker 03:
We always give people time, so take a couple minutes.

[00:32:45] Speaker 02:
Thank you.

[00:32:46] Speaker 02:
I will be brief.

[00:32:49] Speaker 02:
Just a couple points in rebuttal.

[00:32:52] Speaker 02:
There's a question about whether the individual employees could file information requests.

[00:32:57] Speaker 02:
They can't do that, and that's not protected activity.

[00:33:02] Speaker 02:
The only way that that could be protected activity if there was some evidence of concerted protected activity for mutual aid and protection.

[00:33:10] Speaker 02:
the ALJ found there was not, and the board decision acknowledges that.

[00:33:13] Speaker 02:
So there is no such evidence in that regard.

[00:33:17] Speaker 03:
Do I have to go through the union's door to file a grievance?

[00:33:21] Speaker 02:
It depends on the collective bargaining agreement.

[00:33:25] Speaker 02:
I believe in this instance that it does need to be, I think, I'd have to check the language, but I think the steward has to file it.

[00:33:34] Speaker 02:
But certainly once it's filed by the employee, it's processed by the union, and the union definitely owns the grievance through the procedure.

[00:33:41] Speaker 04:
But it's not concerted activity if a union steward in his union position does something that he thinks is for the good of his

[00:33:52] Speaker 04:
department?

[00:33:54] Speaker 04:
He's as a representative.

[00:33:56] Speaker 04:
He has to actually go back and get them on board, or can he do things saying, I'm doing this for the group?

[00:34:02] Speaker 04:
And that's concerted activity.

[00:34:04] Speaker 04:
I thought that's what the labor law protected.

[00:34:06] Speaker 02:
There's really two types of protected activity under the statute, right?

[00:34:11] Speaker 02:
Section seven is the rights we're talking about.

[00:34:13] Speaker 02:
There's union activity,

[00:34:15] Speaker 02:
which is all the things that we're talking about here with information requests.

[00:34:18] Speaker 02:
And then there's something which is non-union, which is concerted protected activity for mutual aid and protection.

[00:34:24] Speaker 02:
It's like when I get together with a colleague and complain about overtime policies.

[00:34:29] Speaker 02:
Even though we don't have a union, we're acting together for mutual aid and protection.

[00:34:33] Speaker 02:
There's no evidence of union activity because it's unauthorized, and there's also no evidence of concerted protected activity in the non-union setting is the point.

[00:34:44] Speaker 04:
getting together has to come before any request.

[00:34:46] Speaker 04:
Like if I were wanting to show that my workplace paid the men more than the women for the same work, and I wanted to get a little evidence of that before I got my colleagues riled up about it, that would not be concerted in the second sense, concerted protective activity.

[00:35:02] Speaker 04:
Even though I haven't, because I haven't talked to them yet, but I'm wanting to get people organized to make sure that there's equal pay.

[00:35:08] Speaker 02:
Right.

[00:35:09] Speaker 02:
The board law would suggest that there are some circumstances where doing things in preparation for group action can be protected.

[00:35:19] Speaker 02:
There are case law, there are board cases that say that.

[00:35:22] Speaker 02:
However, in this record, there is no evidence that Mr. Kanta was doing that.

[00:35:27] Speaker 02:
That's a finding of the ALJ, and it's not disturbed.

[00:35:31] Speaker 02:
So I don't think that that hypothetical type of mutual aid and protection protected activity applies.

[00:35:37] Speaker 04:
You probably have this more at your fingertips than I do.

[00:35:40] Speaker 04:
When you say that's a finding of the ALJ, just do me a favor and point me to there.

[00:35:45] Speaker 02:
Sure.

[00:35:54] Speaker 02:
I think I was referring to, although Canta's information requests could be viewed as dissident intra-union activity, warranting the act's protection, the record is not established that responded at any intention of interfering as an internal union.

[00:36:07] Speaker 02:
Likewise, the evidence is not established at any intent to retaliate, I think, in that discussion there.

[00:36:13] Speaker 02:
And then I think it's also referenced in the board decision when they characterize it, and I don't know exactly where in the board decision, but I know it's in there.

[00:36:23] Speaker 04:
So you're looking at paragraph 40 on appendix page 7 of the ALJ.

[00:36:28] Speaker 02:
Right, as well as the board's reference to that.

[00:36:32] Speaker 03:
Well, the board's order is short.

[00:36:34] Speaker 03:
Where is it?

[00:36:35] Speaker 02:
Let me see if I can find it quickly.

[00:36:50] Speaker 02:
Here it is.

[00:36:51] Speaker 02:
It's on the second page of deferred appendix 14, second column, last paragraph on the right.

[00:36:57] Speaker 02:
The judge also found that the general counsel failed to show that the information requests were otherwise protected activity because the record did not establish that Canta had requested information on behalf of other employees or discussed with the other employees the concerns underlying the requests.

[00:37:15] Speaker 03:
Thanks.

[00:37:17] Speaker 03:
All right.

[00:37:19] Speaker 03:
You want to wrap up?

[00:37:20] Speaker 02:
Yeah, just one additional point from a policy perspective that I'd raise.

[00:37:25] Speaker 02:
If employers cannot discipline individuals for engaging in misconduct and warn them against similar misconduct, that's a major problem.

[00:37:34] Speaker 02:
And that's what this order essentially stands for.

[00:37:36] Speaker 02:
Think of it this way, an example.

[00:37:39] Speaker 02:
If I were to use profanity and yell at my supervisor, I think we'd all agree I could get warned, disciplined for that.

[00:37:46] Speaker 02:
And so I get a warning that says, Mr. Eastland, you swore at your supervisor, you do it again, you do that similar conduct again, you're gonna get fired.

[00:37:57] Speaker 02:
Under this theory, that's an unfair labor practice.

[00:38:00] Speaker 02:
It's an unfair labor practice.

[00:38:01] Speaker 02:
Here's why.

[00:38:02] Speaker 02:
Because somebody from the board could say, well, wait a second.

[00:38:05] Speaker 02:
What if next time Mr. Eastland's talking to his supervisor, he's talking about union activity, and it's in the heated exchange.

[00:38:12] Speaker 02:
And therefore, he's allowed to use some level of profanity under the board's decisions in Atlantic Steel.

[00:38:18] Speaker 02:
And he doesn't lose protection of the act.

[00:38:21] Speaker 02:
It's always theoretically possible.

[00:38:23] Speaker 02:
And so I think it would have a significant impact.

[00:38:25] Speaker 02:
And that's why the board has to point to evidence.

[00:38:28] Speaker 02:
Thank you.

[00:38:30] Speaker 02:
Thank you.

[00:38:32] Speaker 01:
Judge Henderson, I just wanted to, if I could, note something that I thought that was remarkable in the ALJ's decision, which was that at the end the ALJ said that counsel had

[00:38:48] Speaker 01:
conducted themselves with extreme professionalism and civility before her.

[00:38:55] Speaker 01:
And you almost never see that.

[00:38:59] Speaker 01:
And I'd like to encourage that, given all of the uncivility and unprofessionalism that I've seen.

[00:39:05] Speaker 01:
So I would compliment you for the way that you've conducted yourselves in these proceedings.

[00:39:12] Speaker 03:
Let me second that on the record.

[00:39:14] Speaker 03:
I said the exact same thing to my law clerk, that this ALJ order was even-handed, thorough, and very, very civil with its recognition of the handling of the case.