[00:00:01] Speaker 00: Case number 14-1144 at L. Inova Health System Petitioner versus National Labor Relations Board. [00:00:08] Speaker 00: Mr. Baskin for the petitioner. [00:00:10] Speaker 00: Ms. [00:00:10] Speaker 00: Sheehy for the respondent. [00:00:31] Speaker 03: Good morning. [00:00:32] Speaker 01: Good morning. [00:00:33] Speaker 01: I'm Maurice Baskin for the Petitioner in Nova Health Systems, and we're challenging the unfair labor practice findings of the National Labor Relations Board, best reserved three minutes for rebuttal. [00:00:44] Speaker 01: And in the short time we have today, I'd like to focus on the termination case aspect of this involving Nurse Miller, and the question in particular, which we think is the key question, of the decision-makers' knowledge or lack of knowledge. [00:00:56] Speaker 01: and animus towards any protected activity in which Nurse Miller may have engaged. [00:01:03] Speaker 01: We say it's a key question because this Court and many other circuits have held that there cannot be a finding of an unlawful termination under the Act. [00:01:13] Speaker 01: Unless the board makes a finding that the employer's decision maker knew the employee was engaged in activity protected by the Act and terminated her for that reason. [00:01:24] Speaker 01: Seems like common sense, but the board made no such finding. [00:01:28] Speaker 03: If you look at the board's decision at JA 67, where it starts to make its findings. [00:01:35] Speaker 03: Yes. [00:01:38] Speaker 03: And it talks about right line. [00:01:40] Speaker 01: Yes. [00:01:41] Speaker 03: And then it continues about the sequence of events, impossible to separate, et cetera. [00:01:47] Speaker 01: Yes. [00:01:48] Speaker 03: and goes on, what did the board fail to find? [00:01:54] Speaker 01: The board failed to find that Dr. Pasternak, you didn't see Dr. Pasternak's name mentioned in that paragraph. [00:02:00] Speaker 01: If you look at the paragraph also at the top of page 67 of the appendix, that's where they quote the undisputed evidence of what Dr. Pasternak knew, which is the email. [00:02:10] Speaker 01: the February 25th email from Chief Nurse Executive Conway Marana. [00:02:17] Speaker 01: And if you look at that email, it says simply, we have a 20-plus year nurse. [00:02:22] Speaker 01: We did not even give her name. [00:02:25] Speaker 01: We've had several hotline calls about profanity, vindictive with schedule, sexual innuendos, but a great OR nurse presents a balanced picture. [00:02:32] Speaker 01: She's been warned in the past about intimidating and inappropriate behavior, [00:02:36] Speaker 01: four years ago and recently, then goes on to describe there's a split in the department about what to do with her. [00:02:41] Speaker 01: Not one word about putting Dr. Pasternak on notice of some February 13th email being protected, not mentioned. [00:02:49] Speaker 03: So when I read the board's decision, and maybe I'm just incorrect about this, the board seemed to think the issues before it were whether she had engaged [00:03:06] Speaker 03: in protected activity, whether the animus, timing, those events that the board found established or met the general counsel's burden such that the burden shifted to your client. [00:03:30] Speaker 03: And then the board went on to say, [00:03:34] Speaker 03: that even if your client had a reasonable belief, it has not shown it would have suspended and discharged her in the absence of her protected activity. [00:03:44] Speaker 03: In other words, I don't see the issue as the board understood it as to what Dr. or Mr. Pasternak knew. [00:03:55] Speaker 03: That wasn't any question about who had the final say. [00:04:00] Speaker 03: The question was, [00:04:04] Speaker 03: under the right-line series of cases of board authority, had the general counsel met its burden, had the burden shifted, and had the hospital rebutted. [00:04:20] Speaker 01: Yes, but they misstated what their burden was, what the general counsel's burden was. [00:04:25] Speaker 01: They simply skipped the step of knowledge of the decision maker. [00:04:29] Speaker 01: And this is not for lack of us having presented it to them. [00:04:32] Speaker 05: So let me give you a hypothetical. [00:04:34] Speaker 05: Imagine that [00:04:36] Speaker 05: Clearly hypothetical. [00:04:38] Speaker 05: You don't have to defend your client. [00:04:40] Speaker 05: I'm not remotely suggesting this is what happened. [00:04:42] Speaker 05: But in some bad company, a bunch of supervisor and high-level managers get together and say, let's get rid of this union organizer. [00:04:54] Speaker 05: All right? [00:04:54] Speaker 05: And they put together a series of complaints. [00:05:00] Speaker 05: about this person's behavior, intimidating behavior, taking too long a break, bullying people, using inappropriate language, being very sexually explicit in the operating room. [00:05:13] Speaker 05: All of these things that you have here and more. [00:05:15] Speaker 05: And they make, and they wrap that package up. [00:05:18] Speaker 05: And they go, well, we don't want to look too obvious, so let's throw in some good facts, too. [00:05:22] Speaker 05: This person happens to also be good at their job. [00:05:26] Speaker 05: Not everybody, you know, we look at this carefully. [00:05:28] Speaker 05: Some people say, give another chance. [00:05:30] Speaker 05: But we assemble our nice, neat package, and we deliver it. [00:05:36] Speaker 05: We'll launder it through Dr. X. And Dr. X looks at that package, assembled by high-level managers who are clearly anti-union in my hypothetical. [00:05:49] Speaker 05: The decision maker doesn't know about that, just looks at this package. [00:05:53] Speaker 05: Can one fairly say that anti-union animus was not a motivating factor in causing that person to be terminated? [00:06:00] Speaker 01: Well, that hypothetical has never been applied to board decisions. [00:06:04] Speaker 05: I'm just asking you, as a practical matter, clearly you would say anti-union animus was a factor [00:06:12] Speaker 05: in that decision, right? [00:06:14] Speaker 05: It would have never been teed up for the decision maker, but for the anti-union animus, right? [00:06:19] Speaker 01: Yes. [00:06:20] Speaker 05: Okay. [00:06:21] Speaker 05: And so would that satisfy right line? [00:06:24] Speaker 05: And that would satisfy the requirements under right line? [00:06:27] Speaker 01: Would that satisfy if it was no knowledge by the decision maker? [00:06:31] Speaker 05: No, but the actual person sort of made the final sign of the dotted line, but the only reason this person was [00:06:36] Speaker 05: head was on the chopping block was because the high-level managers and supervisors all had well-documented anti-union animus and wouldn't have done it and weren't doing it for any other reason. [00:06:48] Speaker 01: I'm going to resist your hypothetical and not concede that it would apply, as the board case law has been defined by this court and other courts. [00:06:57] Speaker 01: But it is so far, your description of it well demonstrates why this case does not meet anywhere near those notes. [00:07:05] Speaker 05: No, no, but if you have, I just want to play with my hypothetical. [00:07:07] Speaker 05: And that is, how could one, as sort of even basic grammars say, [00:07:12] Speaker 05: that anti-union animus was not a substantial factor, substantial causative factor in that person getting fired. [00:07:21] Speaker 05: The only reason they were the one teed up for the final person was because of their union activities. [00:07:29] Speaker 01: Well, that would be an interesting and challenging case to argue. [00:07:34] Speaker 05: I think it would actually be all that challenging. [00:07:36] Speaker 05: I think it would be pretty clear that it was a causal factor in that person's firing. [00:07:40] Speaker 05: I guess I'm having trouble thinking why it's [00:07:42] Speaker 01: Well, I guess it's just fortunate that it's so far different from our facts. [00:07:47] Speaker 01: There was no teeing up. [00:07:48] Speaker 01: There was no communication from one supervisor to another. [00:07:52] Speaker 01: The original complaints, which the judge concedes, were unsolicited from the coworkers of this nurse who were terrified of her, who were extremely upset and offended by her workplace behavior. [00:08:05] Speaker 01: It was communicated. [00:08:06] Speaker 05: I thought the board found, now to get back to this case, [00:08:10] Speaker 05: that in fact there was a very selective and biased investigation, just from our standard of review. [00:08:16] Speaker 05: We aren't deciding this as original fact-finders. [00:08:18] Speaker 05: From our standard of review, there was a very biased and one-sided investigation that came forward with these facts and said people were terrified when [00:08:28] Speaker 05: It turns out an awful lot of people weren't. [00:08:30] Speaker 01: Well, ironically, that finding runs squarely into this court's decision in Detroit News, in which this court said that it's not the board's business to dictate to employers how to conduct their investigations. [00:08:39] Speaker 01: And in reality, this investigation, they bent over backwards in her favor. [00:08:44] Speaker 01: They didn't have to go interviewing any random witnesses. [00:08:46] Speaker 01: They could have taken the individuals. [00:08:47] Speaker 03: Well, what we're dealing with is the findings of the board and our standard of review. [00:08:54] Speaker 03: So in your brief, you cite the Flagstaff decision as supporting your position. [00:09:01] Speaker 03: Where in Flagstaff? [00:09:05] Speaker 03: What specifically do you think, in Flagstaff, supports your position? [00:09:10] Speaker 01: Where it says if general counsel relies on circumstantial evidence and legal fictions about constructive knowledge, it does not carry its burden of showing the decision maker knew about the Employees Union activity. [00:09:22] Speaker 01: All right. [00:09:23] Speaker 01: More importantly, permitting circumstantial evidence and legal fictions to trump direct proofs, such as we have here, is absurd. [00:09:28] Speaker 03: But what is your direct proof? [00:09:30] Speaker 03: That's what we're trying to understand. [00:09:31] Speaker 01: The direct proof is the memo from Conway Morena to Pasternak. [00:09:35] Speaker 01: not to mention his denial of having any knowledge that she had engaged, that the nurse had engaged in protected activity. [00:09:41] Speaker 03: So you're saying that under right line, the board could not permissibly conclude that there was a violation of 8A1. [00:09:51] Speaker 03: And I'll put it hypothetically. [00:09:55] Speaker 03: In the hypothetical situation Judge Millett just described. [00:10:02] Speaker 03: In other words, [00:10:04] Speaker 03: the case is teed up for the decision maker. [00:10:08] Speaker 03: In a way that's rife with animus, and at least from the ALJ and the board's findings, there was not an incomplete, thorough investigation. [00:10:27] Speaker 03: You're saying that we would have to find as a matter of law [00:10:34] Speaker 03: that the board departed from its right-line precedent? [00:10:39] Speaker 01: If they skip the step of establishing knowledge and decision-making. [00:10:43] Speaker 03: Where does Flagstaff say that? [00:10:45] Speaker 03: I couldn't find it. [00:10:46] Speaker 01: Because that's just where I read. [00:10:48] Speaker 03: No, all it says is circumstantial evidence. [00:10:51] Speaker 01: Now are we talking about the hypothetical or about this case? [00:10:54] Speaker 01: If we're back to the hypothetical and essentially... I read what Dr. Pasternak said. [00:10:57] Speaker 03: Is it Mr. Pasternak or Dr. Pasternak? [00:10:59] Speaker 03: Dr. Pasternak said he didn't know about these emails. [00:11:03] Speaker 03: All he knew was what he was presented. [00:11:08] Speaker 03: And he acted on the basis of that information. [00:11:12] Speaker 03: He didn't go out and make any independent investigation on his own. [00:11:17] Speaker 03: Correct. [00:11:18] Speaker 03: So it would not be consistent with board president applying the right line analysis. [00:11:28] Speaker 01: There has never been a case so holding. [00:11:30] Speaker 01: Now, what you are talking about is essentially the cat's paw type of argument that has reached the courts under Title VII in that context. [00:11:40] Speaker 01: I just recently checked. [00:11:41] Speaker 01: Has there been a single board case applying the cat's paw analysis on the right line? [00:11:46] Speaker 01: It hasn't happened. [00:11:48] Speaker 03: So let me be clear about this. [00:11:51] Speaker 03: You're not making an argument that [00:11:55] Speaker 03: the board that this court would have to reverse because the board misapplied its right-line precedent. [00:12:04] Speaker 03: Rather, yours is simply a substantial evidence challenge. [00:12:09] Speaker 01: Well, I think it's both because they did not even make the... Well, because the authority you cited doesn't say what you said it cites. [00:12:20] Speaker 03: That's why I want to be clear about it. [00:12:22] Speaker 03: It's alright for the board, says the authority you cited, to rely on circumstantial evidence and inferences. [00:12:28] Speaker 01: But this board didn't. [00:12:29] Speaker 01: This board made no finding as to Dr. Pasternak's knowledge. [00:12:34] Speaker 01: I have to say, where is the general counsel carrying its burden of proof? [00:12:38] Speaker 01: Where is the board carrying its burden? [00:12:40] Speaker 01: It is their burden at the first step to show the prima facie case. [00:12:43] Speaker 05: So here's where I think maybe the confusion is. [00:12:47] Speaker 05: And that is, your argument says the board under right line has to show that the last person in the decisional line [00:12:59] Speaker 01: The decision-maker. [00:13:00] Speaker 05: Had the anti-union, well, I think you're begging the question of what the decision-making process is here. [00:13:07] Speaker 05: You're saying that last person has to be the one with the anti-union. [00:13:11] Speaker 05: You're embracing the cat's paw theory at this point and saying, look, he did not have any anti-union animus. [00:13:20] Speaker 05: Doesn't matter how the case got to him, how the information he was given to make his decision was formulated. [00:13:29] Speaker 05: He individually didn't have the animus. [00:13:32] Speaker 05: And at least when I'm understanding the board to be saying, so I'm trying to frame up our legal issue here, so you're saying that last person, the decision maker, when he made the final sign on the dotted line, didn't have it. [00:13:43] Speaker 05: I took them to be looking at a collective decision-making process. [00:13:48] Speaker 05: And if any unanimous was a causal factor in that final decision being made, [00:13:56] Speaker 05: then there's a violation. [00:13:58] Speaker 05: So is that the difference? [00:13:59] Speaker 05: You say it has to be anti-union animus in the final actor, and they're saying if there's a causal factor in the decision-making process, so the decision-making process would have never been made, it would have never gotten a Dr. Pasternak, but for anti-union animus, they win. [00:14:15] Speaker 05: Am I understanding it right? [00:14:17] Speaker 01: Actually, I'm saying the board never said anything at all on this key issue. [00:14:20] Speaker 02: Yeah, it's not just the animus, it's the mullet. [00:14:22] Speaker 02: The record does not have any evidence to support the proposition that Dr. Faffernack even knew about the alleged protected activity. [00:14:31] Speaker 01: And there is no finding of circumstantial evidence leading to that conclusion, no finding of inferences, no finding of imputation. [00:14:38] Speaker 01: They simply stopped at Seneca and Gorman. [00:14:41] Speaker 01: By the way, Seneca also had no knowledge of protected, supposedly protected, February 13th email, even though the board says four different times. [00:14:49] Speaker 01: that he did. [00:14:50] Speaker 01: There is no record evidence of that. [00:14:52] Speaker 01: It was something that was inferred and made up by the administrative law judge, which the board disavowed, and they cite Gorman, the HR director. [00:15:00] Speaker 05: There is a specific finding that she made no recommendations about the termination. [00:15:07] Speaker 05: Right, that very closely related. [00:15:10] Speaker 05: Right, so yours again is that the final decision maker was clean and whatever happened in the process that led to her being teed up for the final decision maker is insufficient as a matter of law under right line? [00:15:27] Speaker 01: In this case, [00:15:29] Speaker 05: You said a right-line error, which is a legal error, not an evidence. [00:15:33] Speaker 01: Yes, but it's a right-line error based on this case because the board made no finding. [00:15:37] Speaker 01: And that is the error. [00:15:37] Speaker 05: What did they have to find? [00:15:38] Speaker 01: They had to find that Dr. Pasternak had knowledge, that the decision-maker had knowledge. [00:15:44] Speaker 05: Knowledge and animus. [00:15:45] Speaker 01: Knowledge and animus. [00:15:46] Speaker 01: He couldn't have animus if he didn't have knowledge that there was protected activity. [00:15:49] Speaker 05: And would that same answer then apply to my hypothetical? [00:15:53] Speaker 05: Because in my hypothetical, the person who made the decision didn't have knowledge or animus. [00:15:59] Speaker 05: But the only reason the person's head was on the chopping block was because everybody else in the process had it. [00:16:04] Speaker 05: So would your same answer apply to my hypothetical? [00:16:07] Speaker 01: If I can apply to your hypothetical to this case? [00:16:10] Speaker 01: No, no. [00:16:11] Speaker 05: I actually really would just like an answer on my hypothetical. [00:16:14] Speaker 05: What right line law requires? [00:16:16] Speaker 05: Because I think it's the same, at least factually, on this question of knowledge unanimous by final decision maker. [00:16:21] Speaker 01: Right. [00:16:23] Speaker 01: If the board makes a finding, [00:16:26] Speaker 01: based on collective activity or outright falsification, then it is conceivable under your hypothetical, if the law is changed by some court, no one has ever so ruled, it is understandable how someone could reach that conclusion. [00:16:42] Speaker 01: But the board would have to make a finding. [00:16:45] Speaker 05: But in my hypothetical, the decision maker [00:16:49] Speaker 05: lacks knowledge or animus? [00:16:50] Speaker 05: And is your answer that even if the decision maker, I really don't want to put words in your mouth, so if I got this wrong, I thought you just said that even if the decision maker lacked knowledge or animus, if the board found that all the others in the process had, did you say falsified things or essentially engaged in illegal behavior and setting this thing up for illegal endo? [00:17:17] Speaker 05: animus and knowledge sense and setting it up for the final decision maker, that would be okay on the right line? [00:17:23] Speaker 05: I'm really trying to understand what your answer was. [00:17:25] Speaker 01: If the board made those types of findings, it would be a close question. [00:17:29] Speaker 05: No, no, would it have violated or not? [00:17:31] Speaker 01: I don't know. [00:17:32] Speaker 05: Well, is your position that the final decision maker, him or herself, must have the knowledge and animus or not? [00:17:40] Speaker 01: Yes. [00:17:40] Speaker 01: That's the position, not only of this court, but of all the other circuit courts we cited, which, by the way, this court cited. [00:17:46] Speaker 05: Well, then I don't know why you're resisting my hypothetical. [00:17:49] Speaker 05: If every court has held that the final decision maker has to have the knowledge unanimous, then the answer to my hypothetical should be easy. [00:17:56] Speaker 01: Because none of them considered the extreme facts that are described in the hypothetical. [00:18:00] Speaker 05: It shouldn't matter. [00:18:00] Speaker 05: If it's a question of law, then the final decision maker has to have it. [00:18:03] Speaker 05: So that's you. [00:18:04] Speaker 05: OK. [00:18:05] Speaker 05: I think I'm clear now about your position. [00:18:07] Speaker 05: I will add that your position is that it's not this case quite clearly. [00:18:10] Speaker 01: Well, of course. [00:18:11] Speaker 01: And that's what hypotheticals are for, to test the boundaries. [00:18:17] Speaker 01: But we're not asking you to make new law here, where the board has not made any such finding. [00:18:23] Speaker 01: you don't reach any of those interesting hypothetical issues. [00:18:27] Speaker 01: And where the board erred in this case, right at the paragraph that Judge Rogers identified, is in its recitation of how the general counsel proved the first step of the process, which is so crucial. [00:18:42] Speaker 01: You can't have improper motivation unless you have the knowledge and animus. [00:18:46] Speaker 05: I guess I read their decision [00:18:48] Speaker 05: as finding, put aside your substantial evidence arguments about Dr. Seneca, but finding that the timing of her suspension, the references to her prior concerted activity, those things showed that they're in fact, for other folks in the line, at least up through Dr. Seneca, that there was actual knowledge and animus. [00:19:17] Speaker 05: Isn't that? [00:19:18] Speaker 01: Dr. Seneca's, sorry, not good enough. [00:19:21] Speaker 01: He's not involved in the decision. [00:19:25] Speaker 01: He did not know that she engaged in this protected activity. [00:19:29] Speaker 01: And the board made a big point of saying Dr. Pasternak was the decision maker. [00:19:34] Speaker 01: if they wanted to extend it to Chief Nurse Executive Conway Morena, they'd have another problem. [00:19:39] Speaker 01: She didn't know. [00:19:40] Speaker 01: She doesn't say anything about it, and the memos to her don't say anything about it. [00:19:45] Speaker 01: This whole thing is trumped up over a February 13th email that no one in higher management knew about or cared about. [00:19:52] Speaker 01: Only a low-level nursing educator was furious about it. [00:19:56] Speaker 05: Was it OK for, is it reasonable for a board to find [00:20:03] Speaker 05: that it was quite unprecedented for Dr. Pasternak to be involved in this decision. [00:20:13] Speaker 05: There's almost, there's suspicion about the fact that he was plugged in at the last minute at all, having never ever, according to the record, been involved in a nurse firing. [00:20:24] Speaker 00: Yes. [00:20:24] Speaker 05: And the fact that [00:20:27] Speaker 05: this everything, this investigation came to a screeching halt right after the February 13th email and pretty clear anti-union animus on the part of, I probably won't say Michael Leozzi, [00:20:42] Speaker 01: She was upset about the February 13th email, although she wouldn't have recognized it as protected activity. [00:20:49] Speaker 01: But let me answer your question about was it reasonable for the board to wonder why Pasternak was involved. [00:20:55] Speaker 01: It's answered in the same email from Conway Morena. [00:20:59] Speaker 01: She says, we've got more likely the doctors and the anesthesiologist may say something to you. [00:21:04] Speaker 01: in charge of nurses. [00:21:06] Speaker 01: She's concerned that you're going to be caught off guard. [00:21:08] Speaker 01: So we should discuss this further. [00:21:10] Speaker 05: Well, that's different from informing somebody about a decision I'm making as opposed to passing the football and say, you make this decision about a nurse, which you never have, and then framing it in terms of a zero tolerance policy, which [00:21:27] Speaker 05: had never before been implemented in this way. [00:21:29] Speaker 01: Well, the direct evidence and the only evidence in the record, because the general counsel never called Conway Morena to testify, and apparently, well, they did ask Pasternak and he said it was rare, but [00:21:41] Speaker 01: You know, she was a polarizing figure, Nurse Miller. [00:21:45] Speaker 01: There was ample reason for them to think she was going to sue them, which low and cold she did, and that they wanted to take it to the top to make sure they were doing the right thing. [00:21:55] Speaker 01: And specifically, because of the conflict between the doctors and nurses, something else that the board didn't fully appreciate, [00:22:05] Speaker 01: was something that they felt that they were going to perhaps need higher level help to deal with. [00:22:10] Speaker 01: She was not an ordinary nurse. [00:22:13] Speaker 01: So that would be the answer to that part of the question. [00:22:16] Speaker 01: But I see my time. [00:22:17] Speaker 01: I hope I get a little time in the rebuttal. [00:22:18] Speaker 03: I'll give you a couple of minutes, of course, yes. [00:22:20] Speaker 01: Thank you. [00:22:21] Speaker 03: Let's hear from a respondent. [00:22:27] Speaker 04: Good morning, I'm Sparper Sheehy for the National Labor Relations Board. [00:22:30] Speaker 04: Good morning. [00:22:31] Speaker 04: Obviously I'm going to focus on the termination as well and then we'll move on to any other questions if there's time after that on the other claims or the other unfair labor practices. [00:22:39] Speaker 02: Do you have evidence that Pasternak had any knowledge? [00:22:41] Speaker 02: Other than what Judge Malott was describing, I think... Don't tell me other than, do you have any evidence that Pasternak had any knowledge of protected activity? [00:22:48] Speaker 04: Before the board, there was evidence that all of the managers that were involved in the decision making process. [00:22:54] Speaker 02: What evidence was there that Pasternak had knowledge of the particular case? [00:22:57] Speaker 04: Pasternak received the email from Conway Marina, in which I know Donna Miller's name was not used. [00:23:02] Speaker 04: However, it references that it's a pediatric nurse. [00:23:07] Speaker 04: it married to another nurse. [00:23:09] Speaker 04: There are no other married, as far as the record discloses, there are no other married people that are working in the exact same OR room. [00:23:15] Speaker 04: So it's perfectly reasonable to believe that even though she wasn't named, that it was understandable who it was. [00:23:19] Speaker 02: And what did the email say about the protected activity? [00:23:23] Speaker 04: The email references, the Conway Marina references that got a Miller in 2005. [00:23:28] Speaker 02: had been disciplined previously for vindictive and intimidating behavior, referencing 2005 protected concert activity, and Conway Marina also- Whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, whoa, [00:23:54] Speaker 02: I've answered as best I can. [00:24:03] Speaker 04: There's the email, the February 25 email. [00:24:06] Speaker 02: I do understand your question. [00:24:15] Speaker 02: It does not be even if you if you're expecting me to be able to say that the board said I'm expecting you not to be able to if you are able to change my mind. [00:24:23] Speaker 02: But I'm concerned about whether the board had knowledge before or not. [00:24:26] Speaker 02: Don't psychoanalyze my motive for being concerned. [00:24:29] Speaker 02: I answer my questions. [00:24:30] Speaker 04: Your honor, there is nothing in Conway Marina's email that says she does not use the phrase protected concern. [00:24:35] Speaker 02: There's nothing in the record that puts Pasternak on notice of any protected activity. [00:24:40] Speaker 04: Not if not if it's expected that Conway Marina had to use the precise words, protected, concerted activity. [00:24:46] Speaker 02: This time don't talk over my question and this time answer. [00:24:50] Speaker 02: There is nothing in the record that shows evidence of Pasternak having knowledge of the protected activity. [00:24:57] Speaker 03: No. [00:24:58] Speaker 02: Thank you. [00:25:00] Speaker 03: Well what I saw in the record about Dr. Pasternak was his denial that he knew about certain emails. [00:25:10] Speaker 03: That's the only denial I see by Dr. Pasternak. [00:25:15] Speaker 03: In other words, following up on Judge Santel's question, given the page that counsel or petitioner referenced, is there other evidence, because these pages are not sequential, detailing what information Dr. Pasternak had? [00:25:38] Speaker 04: No, as a general matter in the record on cross-examination, Dr. Pasternak denied knowledge. [00:25:44] Speaker 04: Dr. Pasternak repeatedly said, no, I didn't know, no, I didn't know. [00:25:48] Speaker 05: Didn't he deny making the decision? [00:25:51] Speaker 04: didn't know, and he was unaware of any of the emails, didn't have any conversations with anybody, said he never met with anybody. [00:25:57] Speaker 02: He needed nothing about the protected activity. [00:25:59] Speaker 02: That was his testimony, right? [00:26:00] Speaker 04: That was his testimony, right. [00:26:01] Speaker 04: And I believe the administrative law judge discredited in large measure many of the manager's testimony where they all said that. [00:26:07] Speaker 02: Where they all said, we don't have any of that now. [00:26:15] Speaker 04: absolutely I didn't say that I merely said the administrative what's the evidence well dr. Seneca didn't testify so what we have the evidence that dr. Seneca had knowledge dr. Seneca handled her 2005 appeal so dr. Seneca was well aware of what Donna Miller did in 2005. [00:26:35] Speaker 02: When did this event of which we're finding the which the board found the unlawful [00:26:45] Speaker 02: activity. [00:26:46] Speaker 02: When did it occur? [00:26:47] Speaker 04: 2009. [00:26:48] Speaker 04: She sent the email four years late, three and a half years later. [00:26:52] Speaker 02: You do not have proximity in time between protected activity and the alleged unlawful unfair labor. [00:27:00] Speaker 04: The board also found that Dr Seneca had a conversation on February 6th, February 16th with Gorman [00:27:08] Speaker 04: of right after she received the February 13 email. [00:27:11] Speaker 04: So while we have direct evidence on the 2005 that Seneca had knowledge of the 2005 activity, there was circumstantial evidence and the board found that in close proximity, one workday after the February 13 email got sent, right after Warman had the meeting with Migliozzi to discuss the email, that she then spoke with Dr. Seneca and they spoke about [00:27:32] Speaker 04: The board determined that it was reasonable to conclude that Dr. Seneca was involved in the termination proceeding. [00:27:40] Speaker 04: That wasn't an inference by the administrative law judge. [00:27:42] Speaker 04: That was a finding by the administrative law judge on page 34. [00:27:48] Speaker 04: of the appendix, I conclude that Dr. Seneca, who did not testify, was heavily involved in the decision to terminate Donna Miller. [00:27:55] Speaker 04: So while I think it's been noted, many of the inferences were disavowed, oh, I'm sorry, all of the inferences were disavowed in the case, this was not an inference. [00:28:02] Speaker 04: This was a conclusion by the administrative law judge picked up by the board, where the board set, or where the administrative law judge also goes on to explain, there's no other reason for Dr. Seneca to have been meeting with Borman one day after the email got sent, [00:28:16] Speaker 04: or for Dobbing to have testified that she kept Dr. Seneca up to date on this low-level nurse's termination proceeding or the disciplinary proceeding that was under my investigation. [00:28:27] Speaker 05: Can you address the legal question of whether Dr. Pasternak's individualized knowledge or animus matters? [00:28:38] Speaker 04: I don't believe that it does. [00:28:39] Speaker 04: I don't believe the board has ever said that the actual decision maker who writes the termination letter has to have been the single person that all of the knowledge and all of the animus had to go up the line, as opposed to what we have here, which is a collection. [00:28:54] Speaker 05: How about some knowledge or some animus? [00:28:56] Speaker 05: So they said before that, let's assume my hypothetical to your friend, and that was zero knowledge by not just signing the paper, the one who made the final call. [00:29:08] Speaker 05: Zero knowledge there, but everything else in the process is poisoned with knowledge and animus. [00:29:16] Speaker 05: Do you know what the board's position would be in that situation or what their precedent says about that? [00:29:22] Speaker 04: I don't think the precedent speaks to it. [00:29:25] Speaker 04: I can't speak to how the board would rule in that decision, but I don't think the precedent can be reasonably read to say that [00:29:33] Speaker 04: the decision-maker has to have actual knowledge. [00:29:36] Speaker 04: And I guess to answer your question in terms of on the sliding scale, if the example is zero knowledge on the part of, zero knowledge and animus on the part of the decision-maker, but everybody else down the line on that, I think this case makes it clear that the board says in the collective sense, all of these people knew that, and so the decision-makers in effect knew. [00:29:56] Speaker 02: And I think the problem is- The final decision-maker, is there a board decision, whether or not a firm [00:30:04] Speaker 02: that finds great relief on the basis of an unfair labor practice which constitutes a firing with alleged animus where the person making the decision on firing did not have knowledge. [00:30:18] Speaker 02: None of that convoluted question. [00:30:22] Speaker 04: Well, I think, I do understand, Your Honor, and I think the board, the cases... You do understand. [00:30:26] Speaker 04: I do understand your question. [00:30:27] Speaker 04: I think. [00:30:27] Speaker 04: Let me know if my answer doesn't make any sense, then we'll try again. [00:30:31] Speaker 04: So I think that most of the cases that I'm aware of under right line, where the board hasn't required actual knowledge by the decision maker, are ones where the board has imputed that knowledge. [00:30:43] Speaker 04: And this court in Flagstaff has reversed on those grounds and said, [00:30:46] Speaker 04: you can't automatically impute the knowledge. [00:30:49] Speaker 02: So in those cases... So there is no case where the final decision maker had no knowledge of the protected activity, where a right line has been followed to find an unfair legal record. [00:31:00] Speaker 02: Is that correct? [00:31:03] Speaker 04: Not in cases, not in circumstances like this. [00:31:05] Speaker 02: Again, I would say that the board... There is not any case where there's been no evidence [00:31:15] Speaker 04: Again, I would say only on the imputation of knowledge, because I believe in those cases the board has said, or that in those cases there isn't. [00:31:23] Speaker 04: So, Dan, to your question. [00:31:24] Speaker 02: Where imputation has been upheld, there has been some sort of circumstantial evidence from which it was imputed, right? [00:31:30] Speaker 04: Right, exactly. [00:31:31] Speaker 04: And we would argue, obviously, as we did in the brief, that there's circumstantial evidence here. [00:31:34] Speaker 04: The board didn't impute the knowledge. [00:31:36] Speaker 04: Because I think that there was enough of the weight of the circumstantial evidence, but it didn't mean that the board needed to do that and worry about some of the adverse case letters. [00:31:44] Speaker 05: This is what I'm trying to get to. [00:31:46] Speaker 05: Because I found it just baffling that we're having this conversation about Dr. Pasternak's knowledge after Staub versus Proctor Hospital, and after the cat's paw theory, which arises from the exact same motivating factor causal analysis. [00:32:03] Speaker 05: it's been discredited. [00:32:06] Speaker 05: And so this notion that you can essentially launder a violation as long as you find somebody high enough up that they wouldn't spend their time learning the details and then you feed them tainted information, that's going to somehow get you out of liability. [00:32:21] Speaker 05: And so I'm just confused as to what you're saying about [00:32:25] Speaker 05: the board's position here, because I thought your answer was it doesn't matter what his knowledge was, Dr. Pasternak's knowledge was, as long as the only reason her head was on the chopping block is because all these other folks in the process who are high-level managers and supervisors set it up and animus and knowledge was found as to them. [00:32:45] Speaker 05: And is that what you think the board did? [00:32:49] Speaker 04: That's what I believe the board did here. [00:32:50] Speaker 04: And I think we try to flesh that on the brief. [00:32:52] Speaker 04: But to the extent I was answering questions that were asked of me, as in, are there other pieces? [00:32:56] Speaker 05: So this is the first time that's happened? [00:32:58] Speaker 04: That I'm aware of that the board has treated it in this manner, where there's been a collective. [00:33:02] Speaker 04: And it could be that it's the first time where there have been 10 people or 7 to 10 people that have been involved at all stages and they go up different [00:33:09] Speaker 04: Chains and there are but that it elevates quite quite high that but that were the ultimate person who says you are fired didn't Have a conversation with somebody where that person says she's engaged in protected concerted activity. [00:33:22] Speaker 04: We don't have that on the record believe there were circumstantial Evidence and inferences that were disavowed however as to what sort of conversations happen because there's a big gap in the process there's the email saying we need to discuss this and [00:33:35] Speaker 04: Let's talk tomorrow morning. [00:33:36] Speaker 04: That's from Pasternak to Conway Marina. [00:33:40] Speaker 04: And then several hours later, where there's no other information that was turned over, no other emails or anything, there's the decision that she's terminated rather than putting things off. [00:33:48] Speaker 03: So in your brief, you distinguish Flagstaff by saying that there the inference was trumped by direct proof that the decision maker had no knowledge. [00:34:07] Speaker 03: So counsel for petitioners says, look at what Dr. Pasternak said. [00:34:16] Speaker 03: So why isn't that a clear application of Flagstaff? [00:34:21] Speaker 04: I think in Flagstaff, what you had there was the board imputing the knowledge of a low-level supervisor to the decision-maker. [00:34:27] Speaker 04: And I believe in Flagstaff, you only had one person who knew, one person who saw the individual wearing the button, and then you had a relatively new supervisor coming on the scene about, I think you'd only been in the office, I want to say three to six months, who ultimately decided to terminate the union official. [00:34:43] Speaker 04: And so the board imputed knowledge from the lower level person who saw the single event of wearing the button, imputed that knowledge to the decision maker. [00:34:52] Speaker 04: And the decision maker, again, who had only been on the job for three to six months, said, I never saw the button. [00:34:56] Speaker 04: I had no idea. [00:34:57] Speaker 03: So let me just be clear. [00:35:00] Speaker 03: Take the hypothetical that Judge Millett offered to counsel for petitioner. [00:35:10] Speaker 03: Is your understanding then [00:35:14] Speaker 03: that in response to Judge Sintel's questions, I understood you to say, and I want to be clear about this, that the board has never held that under right line. [00:35:29] Speaker 03: It is sufficient if you have the situation Judge Millett described, but the person who actually made the decision to fire was pure as the driven snow. [00:35:45] Speaker 03: And I'll take it to this case, all Dr. Pasternak knew was that his senior managers thought he ought to fire Miller. [00:36:01] Speaker 04: To my knowledge, there's not another case similar to this where there is an example of a decision maker like that. [00:36:08] Speaker 04: All right, thank you. [00:36:10] Speaker 05: Would you get to talk about Gamble? [00:36:15] Speaker 05: Why was her statement to Nurse Perry about, you know, you shouldn't have volunteered, protected? [00:36:22] Speaker 05: What was collective about that? [00:36:24] Speaker 05: I guess you didn't figure out what was collective activity about that. [00:36:27] Speaker 04: Sure, I think the board speaks to the protected concerted activity and that is speaking to, it was the long, it was the festering long-standing issue of the extension of the hours in the Ambulatory Surgical Center. [00:36:37] Speaker 04: that the nurses, for decades before, had been working a very set schedule, nine to five. [00:36:42] Speaker 05: Yeah, but where did they find that Gamble was making this statement as part of this long, ongoing, festering issue, as you said, as opposed to Gamble was just speaking, how do we know she was speaking for anybody other than herself? [00:36:54] Speaker 04: Well, first, I would say that Gamble and Nurse Donegan, I think is her name, Donegan, the two of them together, and they're both nurses in that facility, the two of them together went to Nurse Perry after, and speaking on, saying, [00:37:06] Speaker 04: hey, if you keep doing this, this is setting the expectation for all of us that we're all going to keep staying and working late. [00:37:11] Speaker 04: So I think that she was, at the very least, speaking on behalf of her and I think it's Donigan, speaking on behalf of at least those two nurses. [00:37:19] Speaker 04: And it certainly couched in terms of a well-known ongoing issue, which is throughout this case, starting with Donna Miller being very vocal and being very much an opponent. [00:37:30] Speaker 05: What's the line between [00:37:33] Speaker 05: things that are clearly collective. [00:37:36] Speaker 05: And the situation where someone says, hey, you're making me and my friends look bad. [00:37:42] Speaker 05: You're on the assembly line. [00:37:44] Speaker 05: You're producing three times as many widgets as we are. [00:37:46] Speaker 05: You're making us look bad. [00:37:47] Speaker 05: We've got a good gig thing going here. [00:37:50] Speaker 05: Does that count as collective activity? [00:37:53] Speaker 04: I don't know. [00:37:53] Speaker 04: I guess it would depend more on the circumstances under which it was said. [00:37:56] Speaker 04: I don't know enough I don't think in that hypothetical. [00:37:59] Speaker 05: How do we know enough here when I think that we don't have a whole lot more than that here from the board finding? [00:38:04] Speaker 04: Unfortunately we don't have a challenge also by the hospital to whether or not Gamble engaged in protective concerted activity. [00:38:12] Speaker 04: So I don't think that issue is before this court. [00:38:14] Speaker 04: I think the question is whether she was not promoted because of what's now assumed to have been. [00:38:19] Speaker 02: That whole issue, petitioner argues that [00:38:30] Speaker 02: Aren't they great? [00:38:35] Speaker 04: I would say no. [00:38:37] Speaker 04: And I think that it's clear that here, whereas we've talked before about all this absence of direct evidence and everything, I think here when you're looking at Gamble's promotion, you have a direct statement under oath by one of the deciding officials saying, one reason we decided not to give you the job was because of this conversation, which we've now said was protected concerted activity that was not appealed. [00:38:59] Speaker 04: Because of a conversation that you had that was protected concerted activity, that's one reason we did not hire you. [00:39:04] Speaker 02: And on top of that, you have findings by the... Wasn't there evidence that they would not have done it harder anyway for that position? [00:39:14] Speaker 04: Certainly, the hospital offered certain factors as to why. [00:39:19] Speaker 04: Some of them were discredited, some of those were determined. [00:39:22] Speaker 02: It was more dealt principally with the weight of the different factors, didn't they? [00:39:25] Speaker 02: And their analysis, doesn't it look like they're substituting their hiring decision for that of the employer? [00:39:32] Speaker 04: I don't know that it does. [00:39:33] Speaker 04: I think what the board did was looked at what some of the factors that were offered and said these were either outright fabrications or these were simply untrue, the allegation that she was a subpar performer. [00:39:43] Speaker 04: So I don't know that you could reasonably read that to say the board substituting its judgment so much as it's evaluating the evidence and saying, hey, [00:39:49] Speaker 04: Your decision-maker said, we didn't hire her in part because of a protective concern activity, and we're going to have a look at some of the other reasons you offer. [00:39:57] Speaker 04: And some of those were denied on the stand by the individual who said them. [00:40:00] Speaker 04: Some of them are absolutely disproven by her performance evaluations. [00:40:06] Speaker 04: So I don't know that it's the board substituting its judgment so much as it's evaluating the reasons offered by the hospital and finding them wanting. [00:40:17] Speaker 03: I had one other question going back to the ALJ's analysis. [00:40:23] Speaker 03: I'm on DA 44. [00:40:27] Speaker 03: The ALJ had earlier stated that the general counsel must establish the employer new of the concerted nature of the activity. [00:40:38] Speaker 03: And let me see. [00:40:40] Speaker 03: No, I'm sorry. [00:40:41] Speaker 03: I'm 46. [00:40:42] Speaker 03: Paragraph five. [00:40:45] Speaker 03: He talks about gaps in the decision-making process relating to the termination, and he says, regarding conversations I inferred took place, including Dr. Pasternak. [00:41:02] Speaker 03: What is your understanding of that reference? [00:41:07] Speaker 04: Well, my understanding, let me preface that with the inferences are disavowed under the board. [00:41:14] Speaker 04: But to get to your question, my understanding of that, as far as I read the record, is that the gaps in time, the gaps that's being referenced here, is that emails that went and stopped with Pasternak, the last email Dr. Pasternak got was on February 25, and he replied, I'm sorry, on February 26, at 8.26 in the morning, saying, [00:41:36] Speaker 04: I've got my concerns, we're moving to a zero tolerance, let's talk, and emailing that to Dr. Marina, Conway Marina, rather. [00:41:43] Speaker 04: And then there's a gap in time, about six hours, I think, because the next email in the chain is about one o'clock in the afternoon, and that's when the director of HR, Keith Hull, is saying to his subordinates, listen, Patricia Conway Marina is going to speak to Dr. Pasternak tomorrow, let's close the loop with her, [00:42:04] Speaker 04: and make sure we answer all our questions just so you can go meet with Dr. Pasternak. [00:42:08] Speaker 04: So the expectation among everybody was that a conversation and perhaps a decision, at least a conversation on Don Miller's fate was going to occur the next day. [00:42:18] Speaker 03: So that appears in the ALJ's opinion in connection with whether the hospital had met its burden, the general counsel having met [00:42:30] Speaker 03: his or her burden. [00:42:31] Speaker 03: Yes. [00:42:32] Speaker 03: So was there evidence presented by the general counsel about conversations with Dr. Pasternak? [00:42:39] Speaker 04: No. [00:42:40] Speaker 04: Dr. Pasternak denied having any conversations or any knowledge. [00:42:43] Speaker 04: So there was evidence in the sense that there were denials on the part of Dr. Pasternak. [00:42:47] Speaker 03: Beyond what we have on the record here at 390, those denials just go to the emails. [00:42:57] Speaker 04: I thought and I can check it. [00:42:59] Speaker 03: Your knowledge of the record is we would not find that the General Counsel presented evidence regarding these conversations in which Dr. Pasternak was included. [00:43:11] Speaker 04: To my knowledge, no, there's none on the record. [00:43:13] Speaker 04: Whether I couldn't speak to, I can't remember if the General Counsel asked [00:43:19] Speaker 04: Did you have a conversation with Dr. Gorman on X8 at this time? [00:43:24] Speaker 04: Or if there were more general questions of, did you have any knowledge? [00:43:27] Speaker 04: Did you know anything about this? [00:43:28] Speaker 04: But no, there's no evidence that Dr. Pasternak had conversations, which I think is why you see the judge making the inference. [00:43:38] Speaker 04: Thank you. [00:43:40] Speaker 04: Unless there are any other questions? [00:43:41] Speaker 03: Thank you. [00:43:43] Speaker 03: Thank you. [00:43:43] Speaker 03: Council for Petitioner? [00:43:46] Speaker 01: Thank you. [00:43:46] Speaker 01: First, I must make a couple of factual rebuttals. [00:43:49] Speaker 01: The statement was made that we waived our claim that Gamble was not engaged or was engaged in productive activity. [00:43:56] Speaker 01: I refer you to page 48 of our opening brief. [00:43:59] Speaker 01: At the outset, the board improperly declared protected Gamble's attempt to discourage her coworker from doing her job. [00:44:06] Speaker 01: I don't know how much clearer we could have made it to preserve that. [00:44:08] Speaker 05: But you only distinguished it on the ground that it was a partial work slowdown. [00:44:12] Speaker 05: You didn't invest it on any other basis, right? [00:44:14] Speaker 01: That we'll also concede. [00:44:19] Speaker 01: But to me, us, that's semantics. [00:44:20] Speaker 01: I mean, that is similar to, in our view, similar to what you were saying, what you were describing in your earlier hypothetical. [00:44:30] Speaker 01: That's what it means to say we've got a good gig here and don't mess it up. [00:44:34] Speaker 01: Don't work hard. [00:44:35] Speaker 01: And I would add further, why would the institution be required to promote someone into a leadership position who is telling coworkers not to work hard? [00:44:45] Speaker 01: Why isn't that a reasonable thing for them to be concerned about? [00:44:49] Speaker 01: The cases that the board has cited deal with people being disciplined or fired for advocating partial strikes. [00:44:56] Speaker 01: That's not our situation. [00:44:58] Speaker 01: And here, Gamble not only had done that, but she told the answer to the question of how she was going to solve problems, she was going to growl back at the doctors. [00:45:06] Speaker 01: That is not what they were looking for. [00:45:08] Speaker 01: They were very reasonable in believing that this was not the right fit for the leadership position as against someone who had sterling references at higher leadership levels. [00:45:18] Speaker 01: And so we stand on our briefs and on those points about Gamble. [00:45:23] Speaker 01: But I did want to just very briefly [00:45:25] Speaker 01: respond to statements made again factually about the Seneca situation and the conversations. [00:45:31] Speaker 01: It was the general counsel's burden to subpoena the witnesses and beyond Dr. Pasternak if they were not satisfied, if they had not produced evidence of conversations. [00:45:39] Speaker 01: They did not bring in Seneca. [00:45:41] Speaker 01: They did not bring in Kamalae Morena. [00:45:43] Speaker 01: There were no conversations in the record. [00:45:46] Speaker 01: The judge tried to make up for it by just saying, well, there must have been. [00:45:50] Speaker 01: And he says that multiple times, and the board properly disavowed it. [00:45:56] Speaker 01: Once the board disavowed it, there is no evidence at all other than the email that we have cited, which is the direct proof of what Pasternak knew, plus his response to the email in which he explains. [00:46:09] Speaker 01: We don't have to wonder what his motivations were. [00:46:12] Speaker 01: He explains. [00:46:13] Speaker 01: We're getting towards a zero tolerance policy. [00:46:15] Speaker 01: This is unacceptable behavior, whether it's from a doctor or a nurse, and we can't accept it, and neither can the board. [00:46:22] Speaker 01: And so on that basis, the decision should be upheld. [00:46:25] Speaker 05: What's a little curious to me is that the email [00:46:30] Speaker 05: as emails commonly do, doesn't offer a whole lot of details. [00:46:34] Speaker 05: Says intimidating behavior, offensive language, those types of things, very generalized. [00:46:42] Speaker 05: And it just struck me as really curious. [00:46:45] Speaker 05: And maybe you'll say it's my job not to be curious, but that someone at his level without, before we're going to apply some very heavy hammer remedy here, [00:46:59] Speaker 05: would actually want to know some particulars, would actually want to be. [00:47:04] Speaker 05: And I thought what I sort of understood the ALJ at least to be finding is that it's incomprehensible that someone at his level would go, hey, I'm so madly in love with my zero tolerance policy. [00:47:15] Speaker 05: All you have to do is send me an email that says someone vaguely has engaged in [00:47:21] Speaker 05: offensive use of vulgar language and offensive, intimidating behavior, and I'm gonna, and notwithstanding, it's a 20-year veteran with outstanding references, and doctors are gonna be upset, and I'm just gonna let the boom drop. [00:47:35] Speaker 01: Right. [00:47:35] Speaker 01: It's okay for you to be curious, but it was not permissible for the board to be curious, because then the board is treading into the territory. [00:47:42] Speaker 01: This court has repeatedly said it's not up to the board to decide whether Dr. Pasternak was making a wise decision. [00:47:49] Speaker 01: Should he have gotten out there in the trenches? [00:47:51] Speaker 01: to find out about everyone of his 7,000 employees. [00:47:54] Speaker 01: Instead, he relied on what was put in front of him. [00:47:57] Speaker 01: There was nothing false in that email to him, going back to the hypothetical. [00:48:02] Speaker 01: And he had no reason to think that he was [00:48:06] Speaker 01: treading into the NLRB's territory. [00:48:08] Speaker 01: It would never have occurred to them. [00:48:10] Speaker 01: And I would just like to conclude by coming back to the Catspaw issue and why we resist applying it here. [00:48:16] Speaker 01: First, because Title VII is a different statute than the National Labor Relations Act, in many cases saying that. [00:48:22] Speaker 01: So we can't automatically apply it. [00:48:24] Speaker 01: But most importantly, because the board did not apply it. [00:48:27] Speaker 01: There is not a shred of evidence. [00:48:29] Speaker 01: And by the way, the Supreme Court case had already been decided about Catspaw. [00:48:33] Speaker 01: The board did not make that finding. [00:48:35] Speaker 01: And so this is not the appropriate vehicle for this court to declare and substitute new findings for the board that the board did not make. [00:48:45] Speaker 01: Instead, not only Flagstaff, but Detroit News and the MECO case are cases in which this court has said you can't rely, the board cannot rely on lower level supervisors to compensate for the proof of animus and knowledge [00:49:00] Speaker 01: by the decision maker. [00:49:01] Speaker 01: That's our position. [00:49:02] Speaker 01: Appreciate your time. [00:49:03] Speaker 03: Thank you. [00:49:03] Speaker 03: Take the case under advisement.