[00:00:01] Speaker 01: Case number 14-1166 at L, Manicare of Kingston, PA, LLC, Petitioner, versus National Labor Relations Board. [00:00:09] Speaker 01: Mr. Roberts for the petitioner, Ms. [00:00:11] Speaker 01: Isbell for the respondent. [00:00:32] Speaker 05: Good morning. [00:00:33] Speaker 05: Charles Roberts here from HCR Manor Care. [00:00:37] Speaker 05: We're bringing two issues before the Court. [00:00:39] Speaker 05: The first concerns whether a regional director of the Labor Board, appointed by the Board at a time when it did not possess a quorum, had authority to conduct a representation election, and if not, what the remedy should be. [00:00:54] Speaker 05: And the second issue concerns whether the Board [00:00:58] Speaker 05: properly and consistently applied its Westwood Horizons standard test for third party threats. [00:01:06] Speaker 05: We would argue that the answer to those questions is that the board did not properly conduct this election and that it did not properly apply its Westwood Horizons test. [00:01:19] Speaker 05: On the power issue, this case is unlike the cases that this court's already decided in SSC Mystic [00:01:26] Speaker 05: and UC health. [00:01:29] Speaker 05: Here the issue is not the board's lack of a quorum at the time of the election. [00:01:32] Speaker 05: The issue is that the regional director, by all concessions, appears to be admitted that he was not appointed. [00:01:40] Speaker 05: He was appointed at the time when there was no quorum. [00:01:43] Speaker 05: And so the issue becomes really one of there is a violation, but what is the remedy? [00:01:48] Speaker 00: Before I go there, I think I agree with you that this is different from the issues in the prior cases, precisely for the reasons that you state. [00:01:56] Speaker 00: But if that's so, then it seems to me that there's a different argument as to whether you forfeited the claim by failing to raise it during the representation proceeding. [00:02:07] Speaker 00: Because under SSC and UC-HEL, [00:02:11] Speaker 00: The argument was, well, it didn't matter that it wasn't raised because the claim that was being made went to the authority of the board. [00:02:17] Speaker 00: And you can bring a claim with respect to the authority of the agency, notwithstanding a failure to raise it before because we allow that under our decisions. [00:02:25] Speaker 00: But as you rightly say, your claim is not about the authority of the board to take the action. [00:02:29] Speaker 05: It's about the regional director. [00:02:30] Speaker 05: With all due respect, SSC Mystic, there was a secondary argument advanced in which they contended that the regional director, that the board lacked the authority [00:02:39] Speaker 05: to expand the regional director's jurisdiction. [00:02:42] Speaker 05: It had been Connecticut and they expanded it to Massachusetts and the court rejected the waiver argument even in the context of that argument and took the position that it went to the same power issue and was not waived. [00:02:58] Speaker 00: I didn't read our decision to specifically speak in terms of waiver with respect to that, because I thought that we were talking about forfeiture on the general notion that the board lacks authority and therefore the regional director lacks authority. [00:03:10] Speaker 05: Well, I could stand corrected, Your Honor, but I did read that, and I do believe that the court specifically rejected the waiver argument in that context. [00:03:19] Speaker 05: Again, I could stand corrected on that, but I'm pretty confident that that is the case. [00:03:24] Speaker 05: and that on the merits it basically didn't address the issue because the election took place in Connecticut where the regional director had already had pre-existing authority. [00:03:34] Speaker 05: That's not the case here because regional director Walsh was not a pre-existing regional director. [00:03:40] Speaker 05: He did not become the regional director until March of 2013. [00:03:44] Speaker 05: which was when the board did not have a quorum. [00:03:47] Speaker 05: It was after this court's Noel Canyon decision, at a time when the board had knowledge of the defect and continued to own. [00:03:55] Speaker 05: Well, can I ask you this? [00:03:56] Speaker 00: I take your point about the SSC, and we'll look carefully at the part of the decision that you're alluding to. [00:04:02] Speaker 00: But for that, [00:04:04] Speaker 00: Let's just assume that away, for present purposes, and assume that it doesn't say that. [00:04:08] Speaker 00: Then, as an analytical matter, it seems to me there's a distinction between an argument that says that the board lacks authority, and therefore the regional director lacks authority, which is the argument that was being made in SSE and UC-HEL, and your argument, which is that the regional director just is an invalidly appointed officer, and therefore the regional director couldn't have conducted the election. [00:04:27] Speaker 00: And that's the type of thing that [00:04:29] Speaker 00: It could have been raised, and it seems to me the difference is this, that if it had been raised, something could have been done. [00:04:35] Speaker 00: Because at the time, the board did have a quorum, and so the board could have made the regional director, the regional director validly, validly appointed regional director, in which event there would have been no claim that he lacked authority to conduct the election. [00:04:49] Speaker 05: Well, the stipulated election agreement was entered into before the board acquired a quorum. [00:04:56] Speaker 05: And so there was really no procedural vehicle by which the employer could have raised the issue at that point. [00:05:03] Speaker 05: The issue, you know, at that point. [00:05:05] Speaker 00: I mean, you entered into the stipulated election agreement. [00:05:06] Speaker 00: I mean, I guess the question is, is there any process whereby that issue could have been brought before the board, and it just, it's hard for me to see. [00:05:13] Speaker 05: I would submit no, Your Honor, because the way these things work is the board [00:05:17] Speaker 05: It's not just a quasi-judicial body. [00:05:22] Speaker 05: It actually conducts these elections. [00:05:24] Speaker 05: And this court, in both of UC Health and SSC Mystic, found that entering into a stipulated election agreement was simply a means of applying the board's procedures to these elections. [00:05:36] Speaker 05: And once you stipulate to the election, the board conducts the election. [00:05:40] Speaker 05: And then you can raise objections. [00:05:43] Speaker 05: In the representation proceeding, well, you can't litigate. [00:05:47] Speaker 05: There's only certain things you can litigate, and that has to do with the conduct of the election, not the board's power. [00:05:52] Speaker 05: The board doesn't allow you to litigate what I would call administrative or legal questions like that. [00:05:59] Speaker 05: Now, we did raise them. [00:06:00] Speaker 00: But the board says it does. [00:06:01] Speaker 00: I mean, the board wanted you to raise that claim at the representation phase. [00:06:07] Speaker 05: And we did raise it in the representation case. [00:06:11] Speaker 05: Well, I'll take that back. [00:06:12] Speaker 05: Maybe not. [00:06:13] Speaker 05: We raised it in the following Supreme Court's decision. [00:06:17] Speaker 05: We raised it – I apologize – we raised it in the C case, which is the ULP case. [00:06:21] Speaker 05: Exactly, right. [00:06:22] Speaker 05: It's the vehicle by which the election gets here. [00:06:24] Speaker 05: So, I mean, I understand your argument, but I would take the position, even independent of SC Mystic, is that [00:06:31] Speaker 05: You're talking about a structural issue in the sense that under the Appointments Act, the regional director is an inferior officer, we would contend, but Section 4 of the Act gives the board the power to appoint him. [00:06:46] Speaker 05: As an inferior officer, he's got to be appointed either by a by the president or by a department head in this case the board and if the board didn't have a Quorum then in essence you've got an appointment indirectly you've got an appointment indirectly is important because I never understood your argument to be that the appointment of the regional director itself was [00:07:08] Speaker 00: a constitutional problem. [00:07:09] Speaker 00: The problem was, as Noel Canney makes clear, that the board lacked authority. [00:07:13] Speaker 00: So there was a constitutional problem with the board doing something. [00:07:16] Speaker 00: But then once the board appoints the regional director, there's a one-step remove from the question that was confronting the Supreme Court and Noel Canney. [00:07:26] Speaker 05: I understand your argument, but the best I can say is what I have said. [00:07:30] Speaker 05: I would rely on SSC Mystic and on what I believe is more of a power issue than just a – this isn't a technical defect. [00:07:39] Speaker 05: It's not like there was some ministerial mistake that was made. [00:07:43] Speaker 05: So I think that we would [00:07:45] Speaker 05: stand on that for whatever. [00:07:47] Speaker 00: The only thing, and I think I don't want to belabor the point too long, but it may not be a technical defect, but there are cases, there's a Supreme Court case, the Tucker-Truck case, where everybody agreed that the officer was appointed in violation of the APA. [00:08:04] Speaker 00: And yet, normal forfeiture and waiver rules were applied to that. [00:08:08] Speaker 05: Yeah, and I do believe there are cases coming from district courts where they considered the waiver argument. [00:08:14] Speaker 05: And I honestly can't give you a case or say why there is a distinction. [00:08:19] Speaker 05: But I mean, I do believe that in the context of this agency review process and in the context of the appointment of a regional director, that it is an issue that we did not waive. [00:08:30] Speaker 05: And if we didn't wait, I'd like to quickly move into the merits of what the remedy is. [00:08:36] Speaker 05: I mean, this is entirely different from Legitech and Dulin, where you had a record that was built and they simply – the process was initiated by someone without power, and then [00:08:51] Speaker 05: After the defect was discovered, like the FEC reconstituted itself and independently reviewed it, there is no record here. [00:08:59] Speaker 05: The harm here was in conducting the election at a time when the regional director didn't have that power. [00:09:05] Speaker 05: It's a human experiment. [00:09:06] Speaker 05: It's not a record that you build. [00:09:09] Speaker 05: And the results today could be dramatically different. [00:09:13] Speaker 05: The electorate's constantly changing in these cases. [00:09:16] Speaker 00: I mean, you know, the... So does that argument mean that there's just, you can't, as a matter of law, have ratification after the fact? [00:09:23] Speaker 00: So even if it was an hour later? [00:09:26] Speaker 05: Well, I would say yes. [00:09:29] Speaker 05: I mean, to answer your question directly, yes. [00:09:31] Speaker 05: I mean, the harm is in the act having taken place, obviously an hour later becomes a question of is that too fine a line to draw, but technically that would be our argument. [00:09:47] Speaker 05: Obviously here is a year later and significant changes in the electorate. [00:09:53] Speaker 05: So I think that the remedy here, you know, the harm – and the other thing is there's an easy solution. [00:10:01] Speaker 05: Simply rerun the election. [00:10:03] Speaker 05: They don't have to start the process over. [00:10:05] Speaker 05: Simply direct another election. [00:10:06] Speaker 05: That can be done in less than 30 days. [00:10:08] Speaker 05: this court's order could issue and we could have another election within 30 days of that order. [00:10:13] Speaker 00: So I mean, that's true, but I don't know that I would, that characterizing it just as an easy solution makes a whole lot of sense because there are, at least under the way we normally look at board events like this, an election is a consequential event and it's not costless to rerun an election or else we'd have reruns of elections a lot more often than we do. [00:10:35] Speaker 05: Well, but there is a difference on my second argument. [00:10:38] Speaker 05: The second issue is a substantive objection to the course of the election. [00:10:43] Speaker 05: Most assertively, you don't rerun them willy-nilly, and we don't think that we've raised insignificant issues. [00:10:51] Speaker 05: And I'd like to quickly turn to that, because I am running short of my time here. [00:10:56] Speaker 05: You know, the West, everyone concedes that Westwood Horizon's standard applies, but we would submit to the court that the board did not apply that standard. [00:11:04] Speaker 05: It applied some ad hoc analysis of the issues. [00:11:08] Speaker 05: It did, you know, it's a foul-part test. [00:11:10] Speaker 04: It's got to be ad hoc, at least in the sense of very factually focused. [00:11:16] Speaker 05: It was factually focused on a very narrow issue though, Your Honor. [00:11:20] Speaker 05: Factually focused on, the standard is a reasonable person standard or a reasonable employee standard. [00:11:27] Speaker 05: It's not, it's could a reasonable, in terms of determining whether there was in fact a threat, is could a reasonable employee interpret the remarks as a threat? [00:11:37] Speaker 05: They don't view the subjective intent, and that's what the board focused on. [00:11:40] Speaker 05: The board focused on the intent. [00:11:42] Speaker 05: of the speakers and found that they did not have intent to carry out their threats. [00:11:48] Speaker 05: They wholly ignored, Your Honor, the fact that the most, by far the most significant threat was the one that occurred the day before the election by an individual who had a known history of violence and had a knife wound, a visible knife wound to prove it. [00:12:04] Speaker 05: The board makes no mention of that. [00:12:05] Speaker 05: The hearing officer did. [00:12:06] Speaker 05: The hearing officer, of course, found that the circumstances were such that the election should be rerun, that there was that proof of fear. [00:12:14] Speaker 05: Remember, this was a one-vote margin, a one-vote – a change of one vote would have changed the result in this election. [00:12:21] Speaker 05: They totally emasculated the dissemination factor by taking the position that these were rumors devoid of truth. [00:12:28] Speaker 05: These were not rumors. [00:12:29] Speaker 05: They were directly heard. [00:12:31] Speaker 05: There's no finding that there was no actual statements. [00:12:34] Speaker 05: There were statements that [00:12:36] Speaker 05: They're going to punch people in the face if the union doesn't get in, that they're going to slash employees' tires. [00:12:43] Speaker 05: Very serious on their face. [00:12:44] Speaker 05: The board totally discounted the literal words. [00:12:47] Speaker 05: And the question is, it's really the judgment of an employee. [00:12:52] Speaker 05: And the board was supposed to put itself in the shoes of a reasonable employee. [00:12:56] Speaker 05: This is a little bit different. [00:12:57] Speaker 05: I recognize the deferential standard of review. [00:12:59] Speaker 05: But under the legal standard, the substantive standard, [00:13:03] Speaker 05: The board had to put itself in the shoes of a reasonable employee, and it did not do that. [00:13:08] Speaker 05: It made its own independent judgment. [00:13:11] Speaker 05: There's nothing in here in the record, we believe, that would support the conclusion that no reasonable employee could interpret those as a threat. [00:13:19] Speaker 05: Then they didn't even look at the proximity to the election. [00:13:22] Speaker 05: These were the evening before the election. [00:13:25] Speaker 05: The election started at 6.30 the following morning. [00:13:28] Speaker 05: There's dissemination of the threat at around 6 and 6.30. [00:13:33] Speaker 05: There's clusters of employees talking about, particularly, they seem to be most concerned about the threats to their cars. [00:13:41] Speaker 05: And one employee testified in the record, it's in our brief, that it took her a long time to get that car, and she was concerned. [00:13:47] Speaker 05: These threats were so serious, they were brought to management's attention, and they had to arrange for security for three days after the election. [00:13:55] Speaker 05: And one of the employees who testified [00:13:57] Speaker 05: She made her husband drive her to work in the following days because she was afraid of what would happen to her car. [00:14:03] Speaker 05: I just don't think you can, in good conscience, and if you compare one of the cases they rely upon, Lamar, there may be another, Lamar, I sent their brief in hours too, if you compare the analysis in that case to the analysis in this case, it's like night and day. [00:14:18] Speaker 05: The board in that case went through every one of the factors. [00:14:21] Speaker 05: The other thing I would say is that these were not colloquialisms or figures of speech. [00:14:28] Speaker 05: This wasn't I'm going to kick your ass or things like that. [00:14:32] Speaker 05: And the board relies on a lot of cases where figures of speech are used. [00:14:36] Speaker 05: These were serious threats that no one could contend that literally they were not threats. [00:14:42] Speaker 05: So I don't think, and then finally, you know, the jest issue. [00:14:46] Speaker 05: You know, well, jester, I think Shakespeare said jester's off prove profits. [00:14:51] Speaker 05: I mean, you know, truth is often said in jest. [00:14:55] Speaker 05: And, you know, and some of these employees testified that even though one of them testified, even though she initially took it [00:15:01] Speaker 05: As a joke, when she sat down and thought about it, she didn't think it was a joke. [00:15:06] Speaker 05: Now, her subjective reaction is not really relevant. [00:15:08] Speaker 05: But the point is that the record does not contain evidence, in our opinion, that would support a finding that no reasonable employee could be intimidated by that. [00:15:20] Speaker 05: And so we would respectfully ask the court, under either of these theories, to set aside the election and direct a new one. [00:15:28] Speaker 05: If there's no questions, thank you. [00:15:31] Speaker 02: Thank you. [00:15:36] Speaker 02: May it please the court, Kelly Isbell here on behalf of the National Labor Relations Board, and I will first apologize. [00:15:42] Speaker 02: I have a lingering cough and I hope to keep it under control, just in case. [00:15:48] Speaker 02: I think I should start by discussing the threats. [00:15:52] Speaker 02: The board found there were no threats. [00:15:54] Speaker 02: There were two statements made in jest among co-workers outside the building. [00:16:00] Speaker 02: There were, in fact, no threats made. [00:16:02] Speaker 04: Well, are you saying then that the woman who had her husband drive her in was unreasonable? [00:16:13] Speaker 04: If she was reasonable, that would be evidence, I would think, that a reasonable person could feel threatened. [00:16:21] Speaker 02: But in this case, what happened was that the actual statements, the statements that have been charged as evidence that the election should be overturned, were in jest. [00:16:33] Speaker 02: The employee. [00:16:35] Speaker 04: You're talking about the board's conclusion. [00:16:37] Speaker 02: Right. [00:16:38] Speaker 04: If there had been a big neon sign saying, what I'm about to say is a jest, don't worry, then perhaps the woman who had her husband drive her in would be completely unreasonable. [00:16:53] Speaker 04: But I don't recall evidence of a big neon sign. [00:16:56] Speaker 02: There were no neon signs. [00:16:57] Speaker 04: That's just the board's conclusion, nothing more. [00:17:00] Speaker 02: Yes, Your Honor, but remember how these were disseminated. [00:17:03] Speaker 02: A single employee, one employee, heard both statements and disseminated them out of context and exaggerated them. [00:17:12] Speaker 02: Harriet Robinson was the person who told people that Juanita Davis was going to hurt them with a bat. [00:17:19] Speaker 02: That is not, in fact, what the evidence showed Juanita Davis joked about. [00:17:23] Speaker 02: She told management the day of the election that there were multiple people standing outside [00:17:29] Speaker 02: the voting, wherever the voting was, to hurt people if they didn't vote for the union. [00:17:34] Speaker 02: This is not at all what Keating or Davis said. [00:17:37] Speaker 02: It was, in fact, Harriet Robinson that exaggerated these statements and was the source of the dissemination. [00:17:46] Speaker 02: There is no finding that she intentionally set out to sabotage the election, but she was a company observer. [00:17:53] Speaker 02: There's certainly no allegation that the company intended for her to sabotage the election. [00:17:57] Speaker 02: But what that shows is that the board is entirely reasonable [00:18:01] Speaker 02: in deciding that third party statements cannot easily overthrow an election. [00:18:07] Speaker 02: You can't allow a third party to sabotage an election on the basis of false accusations or jokes. [00:18:14] Speaker 02: Every election will be in peril if anyone can [00:18:18] Speaker 02: can frighten people without any evidence. [00:18:21] Speaker 03: It seems to me what you're describing as false accusations aren't false at all. [00:18:27] Speaker 03: What you're really saying is if that statement is not repeated with stenographic accuracy, with descriptions of how exactly the person said it, then suddenly it's not dissemination, it's distortion and mischaracterization. [00:18:45] Speaker 03: that seems to be really kind of an impossible standard. [00:18:48] Speaker 03: Then you can't ever have dissemination because you have to be able to say it exactly as it was said to you. [00:18:56] Speaker 02: But the statement that is objectionable was the statements made by Keating and Davis. [00:19:04] Speaker 02: And the board found that those were intended in jest. [00:19:07] Speaker 02: And the hearers at the time took them to be in jest. [00:19:12] Speaker 03: Well, except that Kovacs said, when I thought about it later, I thought maybe it wasn't ingest, right? [00:19:20] Speaker 03: Yes, she did. [00:19:21] Speaker 03: So if she then repeated that without saying, but it was a joke, it seems like what you're saying here is the board would say, well, that's not dissemination. [00:19:31] Speaker 03: That's gossip, right? [00:19:33] Speaker 03: Even though that would be her actual view of what happened. [00:19:36] Speaker 02: The board would not say that was not dissemination. [00:19:39] Speaker 02: In fact, Kovac disseminated nothing. [00:19:41] Speaker 02: She told no one about this. [00:19:43] Speaker 02: And there's a Facebook conversation on the record where she is discussing this with someone else who heard it, and they characterize it as a joke. [00:19:50] Speaker 03: No, they don't characterize it as a joke. [00:19:53] Speaker 03: The person who the other person does. [00:19:56] Speaker 03: And you basically say, well, that must be attribution because she didn't correct that. [00:20:02] Speaker 03: And yeah, it would be just as easy to say she didn't think she had to correct it. [00:20:08] Speaker 03: She had her view of what was happening. [00:20:09] Speaker 03: This person had their view of what was happening. [00:20:12] Speaker 03: I think that's a stretch. [00:20:14] Speaker 02: If Kovacs had, Kovacs herself may have been frightened. [00:20:23] Speaker 02: I'm sorry, may have been. [00:20:24] Speaker 02: She may have thought that the joke was not in jest after she [00:20:30] Speaker 02: So let's take that as a given. [00:20:32] Speaker 02: But a single statement is not enough to overturn an election. [00:20:40] Speaker 02: There has to be something more. [00:20:42] Speaker 02: These are third party statements. [00:20:44] Speaker 02: They're not statements by union agents or employer agents. [00:20:48] Speaker 02: For third party statements, there's a heightened standard. [00:20:50] Speaker 02: And the board does not normally overturn an election on the basis of statements made before the election. [00:20:58] Speaker 02: People say things. [00:20:59] Speaker 02: So let's assume they're not in jest. [00:21:01] Speaker 02: People say things. [00:21:03] Speaker 02: In a hard fought election, especially, there are hard feelings. [00:21:07] Speaker 02: But in this case, there was no violence. [00:21:09] Speaker 02: There were no attacks on the cars. [00:21:12] Speaker 02: Juanita Davis had been in a fight, and it hurt her finger. [00:21:18] Speaker 02: But there was no evidence that she was ever in a fight at the office, at the facility, or that anyone was actually afraid of her. [00:21:26] Speaker 00: Are there third party cases where the objectionable statements are made in the opposite direction? [00:21:32] Speaker 00: Meaning that it's not somebody who is pro-union, but it's somebody who is anti-union. [00:21:42] Speaker 02: I'm sure there are. [00:21:43] Speaker 02: I mean, the standard applies in going both ways. [00:21:46] Speaker 00: Right, but I'm wondering, has it actually been applied going both ways? [00:21:52] Speaker 02: Off the top of my head, I can't think of one where the employees are [00:22:00] Speaker 02: I can't think of one, but I know it applies in both situations. [00:22:03] Speaker 00: And who would be considered third parties if it was the case in one of the opposite directions? [00:22:09] Speaker 02: Employees. [00:22:10] Speaker 00: Employees would be third parties. [00:22:11] Speaker 00: And by management, wouldn't? [00:22:13] Speaker 00: What would the dividing line be? [00:22:15] Speaker 02: Well, then you would get into an agency test, right? [00:22:17] Speaker 02: So if the supervisor did it, it's the supervisor and agent of the employer. [00:22:21] Speaker 02: But definitely employees could be third parties either way. [00:22:23] Speaker 00: They would be third parties? [00:22:25] Speaker 02: Yes, in either direction. [00:22:31] Speaker 03: Would you like to move on? [00:22:34] Speaker 03: Well, no. [00:22:34] Speaker 03: I'm really quite interested in the way the board looks at it. [00:22:39] Speaker 03: There is precedent from the board that says the test is not the actual intent of the speaker or the actual effect on the listener. [00:22:49] Speaker 03: So it's an objective test, right? [00:22:52] Speaker 00: Yes, your honor. [00:22:52] Speaker 03: So the fact that the board here concludes something [00:22:59] Speaker 03: that it doesn't seem like the hearing officer actually concluded, which is that somehow the dissemination here was so distorted that it didn't count as dissemination. [00:23:17] Speaker 02: Well, the board overturned the hearing officer's legal recommendations that an atmosphere of fear and reprisal had been created so as to make a free election impossible. [00:23:28] Speaker 02: So the board didn't overturn any of her factual findings. [00:23:32] Speaker 02: And the factual finding was that eight or nine people [00:23:34] Speaker 02: heard through either first-hand or dissemination Davis's statement and an additional three heard Keating's statement, which had happened several months before the election. [00:23:43] Speaker 02: So the board's finding was that those statements alone and their dissemination did not create an atmosphere so full of fear and reprisal, because remember, that's the third party standard. [00:23:54] Speaker 02: It's a heightened standard. [00:23:56] Speaker 03: Do you agree that this Westwood Hotel case is the standard that's applicable here, the factors? [00:24:03] Speaker 02: It is the standard and third party cases. [00:24:06] Speaker 02: And in this case, the board found there were in fact no threats. [00:24:10] Speaker 03: Well, what I find curious about that is they don't look at those factors at all. [00:24:15] Speaker 03: They don't discuss the factors. [00:24:18] Speaker 03: The hearing officer does and goes through each one specifically. [00:24:23] Speaker 03: But the board simply says, well, this was in just and basically that's the end of it. [00:24:30] Speaker 03: They don't look at any other factor at all. [00:24:33] Speaker 03: And to say this was unjust, that's why I ask you about the case that says, you know, the actual intent of the speaker or the effect on the listener is not what we're looking at. [00:24:44] Speaker 03: But that seems to be the only thing that the board looked at. [00:24:47] Speaker 02: In every case I can think of, including Westwood Hotel, [00:24:53] Speaker 02: The intent and context and the surrounding circumstances of the statements are taken into consideration. [00:25:01] Speaker 03: I understand that the context is part of what you're looking at. [00:25:04] Speaker 03: I'm not suggesting that you wouldn't look at all of it. [00:25:08] Speaker 03: But let me ask you, are you old enough to remember Clint Eastwood as Dirty Harry? [00:25:14] Speaker 03: Yes, but I was not allowed to watch. [00:25:15] Speaker 03: Oh, OK. [00:25:18] Speaker 03: Well, he makes a statement there, you know, go ahead, make my day. [00:25:23] Speaker 03: Do you think that was a threat? [00:25:31] Speaker 02: Let me ask this. [00:25:33] Speaker 02: If I train my five-year-old granddaughter, because I am that old, to say, if you don't vote for the union, I'm going to punch you in the face. [00:25:44] Speaker 02: And Hulk Hogan says it, because that also shows my age, because I can't think of anybody else. [00:25:48] Speaker 02: Those two statements are very different. [00:25:52] Speaker 02: And the hearer would react very differently to those two statements. [00:25:57] Speaker 03: Probably they would. [00:25:59] Speaker 03: But let's just say that that statement is made each time by Clint Eastwood as Dirty Harry. [00:26:06] Speaker 03: And one time he says it very straightforwardly. [00:26:12] Speaker 03: And the next time he smiles. [00:26:15] Speaker 03: And so does it change whether it's a threat [00:26:18] Speaker 02: Is he holding a weapon? [00:26:20] Speaker 02: Think about the State House case where two employees threatened another employee multiple times and once they were holding a knife. [00:26:29] Speaker 02: They only threatened one employee, but the board overturned that election because that was frightening. [00:26:35] Speaker 02: I mean, there does come a point where an atmosphere of fear and reprisal is reached and [00:26:43] Speaker 02: So there are cases. [00:26:45] Speaker 02: If you threaten deportation, the board has found deportation to be kind of a special threat because that affects people's economics and their emotional state. [00:26:54] Speaker 02: That's different. [00:26:55] Speaker 03: It seems like the board has said that the threat of violence, I'm going to hurt you, I'm going to beat you, where it's not a colloquialism that is used often in that setting. [00:27:06] Speaker 03: correct, is something that could be taken seriously. [00:27:12] Speaker 03: Could be. [00:27:13] Speaker 03: I guess what I'm trying to understand here is if it's not a subjective test, then how can the board make this decision, which seems to turn on almost entirely what they thought the intent of the speaker was? [00:27:37] Speaker 02: I don't think it actually entirely falls on the intent of the speaker, but it does take into consideration the context and the circumstances that surrounded those particular statements. [00:27:49] Speaker 02: And even in cases where actual threats were made, [00:27:55] Speaker 02: The board doesn't and courts don't always overturn. [00:27:57] Speaker 02: There has to be something else. [00:27:59] Speaker 02: Threats followed with violence. [00:28:01] Speaker 02: Threats by multiple people to multiple people, threats by multiple employees to multiple employees so that there's, so it seems more real. [00:28:11] Speaker 02: But in a case where there is no evidence that anyone was ever afraid of Juanita Davis, Kovach said she thought it might be serious, but that she in fact did not feel threatened. [00:28:22] Speaker 03: I mean, you can look at this a lot of different ways. [00:28:24] Speaker 03: It's really, it's kind of a fascinating case because Robinson says, ah, nah. [00:28:30] Speaker 03: You know, I blew it off. [00:28:31] Speaker 03: I wasn't really concerned. [00:28:33] Speaker 03: But then she tells a lot of people about what happened, which isn't what you do when you're not really concerned. [00:28:40] Speaker 03: You know, if you think it's a joke and you blow it off, you usually don't say anything about it. [00:28:44] Speaker 02: But we don't know why she did it, and that's the reason for the board's policy. [00:28:49] Speaker 02: If anybody can make any statement and overturn an election, then every election will be overturned. [00:28:54] Speaker 03: I thought that was really interesting. [00:28:56] Speaker 03: That's why it's such a fascinating case because the board says we don't want people to just go out and make these false statements and create problems when really nothing happened. [00:29:07] Speaker 03: But on the other hand, what they're doing says [00:29:10] Speaker 03: that I can, in fact, threaten people all I want to, I can say, you know, if the union doesn't prevail, I'm going to track down everybody that voted no and beat them to the ground. [00:29:24] Speaker 03: But I'm just kidding. [00:29:27] Speaker 02: But if, in fact, people felt that that was true and it was disseminated, there comes a point, and there are cases where the board has overturned elections on the basis of threats. [00:29:38] Speaker 02: This is not that case. [00:29:41] Speaker 02: I am about to run out of time, and we still have ratification to discuss. [00:29:46] Speaker 00: On the null canning issue, were you going to go to that? [00:29:49] Speaker 00: Yes, Ron. [00:29:51] Speaker 00: If that's appropriate, if there's not going to be time to do that. [00:29:55] Speaker 00: Can you address whether there was an opportunity for [00:30:00] Speaker 00: manner care to raise the claim in the representation phase at a point in time that would have allowed the board to do something about it, namely to make the regional director, to reappoint the regional director with a quorum. [00:30:15] Speaker 02: Yes, Your Honor. [00:30:17] Speaker 02: When they signed the stipulated election agreement, they could have made a statement then. [00:30:22] Speaker 02: We did have other employers who added statements to the stipulated election agreement about the regional director's appointment, but it might have been invalid. [00:30:32] Speaker 02: We also have an executive secretary who was taking [00:30:37] Speaker 02: Pleadings from employers about various things during the new accounting process So there were opportunities to bring it to the board remember the board we had a full board before this election occurred so there were [00:30:51] Speaker 02: even though there was not a pre-election hearing, could have been written into the stipulated election agreement or brought to the attention of the executive secretary who brings it to the board. [00:31:01] Speaker 00: What would have happened? [00:31:02] Speaker 00: What do you mean it could have been written into the stipulated election agreement just as a coda to it? [00:31:05] Speaker 02: Right. [00:31:06] Speaker 00: So it's like a preservation of an objection or something? [00:31:08] Speaker 00: Yes. [00:31:08] Speaker 00: And other companies were doing that? [00:31:10] Speaker 00: Yes. [00:31:10] Speaker 00: And how did the board respond to that? [00:31:12] Speaker 02: The board didn't then say they had waived those. [00:31:15] Speaker 02: I mean, if you had raised it in the election proceedings, you wouldn't have waived it. [00:31:20] Speaker 00: No, but I mean, how did the board respond to it on the merits? [00:31:22] Speaker 02: I don't know that anyone specifically asked for a transfer. [00:31:26] Speaker 02: I haven't seen that specific response. [00:31:29] Speaker 00: I'm not even talking about a transfer. [00:31:30] Speaker 00: To me, that's not the action that I care about, at least the transfer. [00:31:35] Speaker 00: Because the transfer rules, it wasn't entirely clear to me that they would be appropriate in this context. [00:31:41] Speaker 00: And the action that I care about is the possibility that the board could have appointed the regional director. [00:31:47] Speaker 00: Because at that point it has a quorum, so the regional director can be validly appointed. [00:31:51] Speaker 00: As to that, [00:31:54] Speaker 00: did anybody raise, I take it the reason people raise the claim if they did what you're saying they did, is not because they wanted to transfer. [00:32:02] Speaker 02: But to preserve the issue. [00:32:04] Speaker 02: And I don't, I mean the board certainly did not [00:32:08] Speaker 02: re-appoint any regional directors before regional director Walsh was re-appointed. [00:32:13] Speaker 00: Yeah, I don't see that it had to re-appoint anybody. [00:32:15] Speaker 00: I'm just wondering, how did the board respond? [00:32:17] Speaker 00: If somebody enters into a stipulated election agreement and then, as you say, adds a quota to the effect that, oh, by the way, we're preserving an objection to the regional director, what happened with that? [00:32:28] Speaker 02: All I can tell you is that it preserved the issue. [00:32:30] Speaker 02: I don't know of any papers that went from the board to the board. [00:32:36] Speaker 00: All right. [00:32:37] Speaker 02: Does that answer your question? [00:32:41] Speaker 00: I think... Well, can I ask you a follow-on, which is if there were no stipulated election agreement, then were there cases in which there was no stipulated election agreement and the claim was raised that the regional director was invalidly appointed? [00:32:59] Speaker 02: I am sure there were. [00:33:00] Speaker 00: And how would that have happened? [00:33:01] Speaker 00: What would be the procedural mechanism by which it would have been raised? [00:33:04] Speaker 02: It would have been raised in a pre-election hearing. [00:33:09] Speaker 00: So the pre-election hearing concerns the definition of the bargaining unit and things like that? [00:33:13] Speaker 00: And one of the claims that could have been raised is? [00:33:15] Speaker 00: It could have been raised, right. [00:33:17] Speaker 00: I see. [00:33:17] Speaker 03: So could Medicare have declined the stipulation, or is the only way that they do that to request a hearing? [00:33:25] Speaker 02: There are three different kinds of election agreements. [00:33:30] Speaker 02: So you can sign those, or you can go to a pre-election hearing, and that's where you work out who's in the marketing unit, those kinds of issues. [00:33:40] Speaker 02: So the issue about rerunning the election. [00:33:45] Speaker 02: Rerunning the election is not the quick and simple fix, manner care has suggested. [00:33:53] Speaker 02: In American Federation of Labor Boer v. Greyhound Supreme Court cases, the Supreme Court recognizes that the reason there is no direct review of election cases under the National Labor Relations Act is because elections are intended to go, which happened quickly. [00:34:09] Speaker 02: The board's processes ensure that elections happen pretty quickly after an election petition is filed. [00:34:15] Speaker 02: We don't wait around. [00:34:18] Speaker 02: If regional director Walsh had not been in place [00:34:24] Speaker 02: The election would have happened on the same day or very close to that day, because we have GPRA goals and targets to meet in setting in elections. [00:34:35] Speaker 02: Elections don't sit around for a year. [00:34:37] Speaker 02: And the reason is because, as this court pointed out in amalgamated clothing and textile workers, delay almost inevitably works to the benefit of the employer. [00:34:47] Speaker 02: The longer you delay, the less likely the employees get their free, uncoerced choice. [00:34:58] Speaker 04: I know that's an article of faith, vis-a-vis the employer, the employees are nervous chickens at every moment, but they're not, in the board's view, vis-a-vis people who threaten to slash tires. [00:35:16] Speaker 04: For them, employees are tough stand-up people. [00:35:21] Speaker 04: Isn't that a fair summary? [00:35:26] Speaker 02: I don't know that I would go that far, Your Honor. [00:35:30] Speaker 02: But in the give and take of elections, people do see. [00:35:33] Speaker 00: Well, I think a part of your answer would be that it's on the one hand, you're dealing with a third party. [00:35:37] Speaker 00: On the other hand, you're dealing with the employer. [00:35:39] Speaker 02: That is a very good answer. [00:35:44] Speaker 03: It wasn't hers. [00:35:45] Speaker 00: Sorry. [00:35:47] Speaker 02: I adopt it as my own. [00:35:48] Speaker 02: I ratify that answer. [00:35:49] Speaker 02: I adopt it as my own. [00:35:53] Speaker 02: OK. [00:35:54] Speaker 02: Thank you. [00:35:56] Speaker 05: okay well it appears you didn't have any time left but we'll give you two minutes thank you I'll be very quick there's just a couple of things [00:36:09] Speaker 05: There was a question about whether there's any case that goes the other way. [00:36:13] Speaker 05: And I would say the Pacific Micronesia case of this court was actually two elections. [00:36:18] Speaker 05: In the first election, it was overturned by the board based on third-party threats that were adverse to the union. [00:36:25] Speaker 05: So it was overturned in favor of the union. [00:36:27] Speaker 05: This court ultimately held that because the threats were [00:36:31] Speaker 05: were not even by employees, they were by legislators or people in the community, and they were totally unrelated to how you voted or the election. [00:36:39] Speaker 05: So, I mean, there are cases that go that way. [00:36:41] Speaker 05: I can't cite any other, but I think what's interesting in that case, though, is that this court says [00:36:48] Speaker 05: Although the type of evidence required in this case, talking about the third party threats, seems self-evident, and then it cites Westwood Horizon's threats of physical violence if employees voted against the union. [00:37:01] Speaker 05: Then that's exactly what we have here. [00:37:03] Speaker 05: And contrary to what the board council says, [00:37:06] Speaker 05: It wasn't just one employee who heard this. [00:37:08] Speaker 05: It was three employees who heard the Davis threat. [00:37:11] Speaker 05: It was a one-vote margin. [00:37:13] Speaker 05: And the board has stated, I think it was in Robert Orr, Cisco, that threats directed, a physical harm directed at a determinative number of voters have historically been held to constitute that environment of fear and intimidation that weren't setting aside an election. [00:37:32] Speaker 05: And that's exactly what we have here. [00:37:36] Speaker 05: statement that the thing I'd say about their jest argument, the hearing officer found these were said in somewhat joking manner. [00:37:44] Speaker 05: I don't even know what that means, in somewhat of a joking manner. [00:37:47] Speaker 05: There's no context to it. [00:37:48] Speaker 05: There's nothing that these people did. [00:37:49] Speaker 05: They didn't say it was a joke. [00:37:51] Speaker 05: And Harriet Robinson [00:37:53] Speaker 05: Not only was she serious enough to disseminate them, but she and Pam Britton went to the employer the next morning and reported them. [00:38:00] Speaker 05: You wouldn't do that if you weren't concerned about it. [00:38:02] Speaker 05: So with all due respect, I think that the result in this case is just far off the field from Westwood Horizons, and we would request that the board's order be denied enforcement. [00:38:12] Speaker 05: Thank you. [00:38:15] Speaker 03: Thank you, Mr. Roberts. [00:38:16] Speaker 03: The case will be submitted.