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Case number 11-1481 at L, Osborne Hessey, Logistics, LLC, Petitioner, versus National Labor Relations Board.

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Mr. Balzee for the petitioner, Mr. Jost for the respondent.

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Good morning.

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Good morning, Your Honors.

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May it please the Court?

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I'm Ben Bozzi.

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I'm here on behalf of Osborne Hesse Logistics, commonly referred to as OHL.

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Since my time is limited this morning, I'm going to focus on the disciplinary issues and terminations as opposed to the 881 allegations.

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And Your Honors, ultimately, this is a case about discipline of acknowledged union supporters.

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And so the question is whether their union support protects them from the consequences of their action.

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or whether insubordination and threatening behavior is intolerable, whether it comes from a union supporter or not from a union supporter.

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And so let me start with Mr. Jerry Smith, who was discharged.

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Jerry Smith was discharged.

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By his own testimony, he was hollering.

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That's a phrase that we use in Tennessee, that elevated voice across the warehouse floor.

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40 feet at Phil Smith, who was the director of operations.

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And there's testimony all over the place about what exactly was said when he was hollering.

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what was ultimately found is that he was hollering, what's the problem?

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And specifically that he had seen his girlfriend, Carolyn Jones, crying, and that made him upset, where he hollered this across the warehouse floor to Director of Operations, Phil Smith.

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Now, Phil Smith approached the area, it's undisputed that Phil Smith and Jim Windage, who were two managers, approached the area,

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where Jerry Smith was and Jerry Smith had walked up to a security fence and had his hands through the chain links in the security fence and Bill Smith asked him who he was talking to and Jerry Smith replied

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to both of you, meaning Phil Smith and Windage.

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Now Jerry Smith, the record reflects, is about 250 pounds and very muscular, as opposed to Phil Smith, who doesn't have that build.

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And so Phil Smith felt threatened by this encounter.

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And he reported to OHL's HR that he felt threatened by the encounter.

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So Jerry Smith Oltemilling was terminated for workplace violence.

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It's undisputed that OHL has a policy that prohibits workplace violence.

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It's undisputed that that policy prohibits aggressive or hostile behavior that creates a reasonable fear of injury to another person.

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And that Phil Smith had reported that he felt threatened by this encounter.

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And so the question becomes,

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whether Phil Smith reasonably felt threatened.

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And OHL reached the conclusion that Phil Smith reasonably felt threatened.

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Now, the ALJ's decision in this case, and by adoption the board's decision in this case, turns on the proposition that Phil Smith's fear was unreasonable.

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And respectfully, Your Honors, what we submit is that the NLRB is simply substituting its judgment for the judgment of OHL.

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And there's case law that we've cited that says that the Detroit packaging case that says that the NLRB can't substitute its judgment for the judgment of the employer.

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Now, obviously the NLRB is ruling on disciplinary actions in every case and making a conclusion about those.

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But when it's saying your fear was unreasonable, that is stepping into the shoes of the employer and deciding what was reasonable and what was not reasonable.

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And to do that is just questioning the judgment of OHL as our position.

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What's our standard of reviewing the board on that?

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Your standard is whether it departs from established precedent and established NLRB precedent.

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And it's our position that the established NLRB precedent says that you don't replace, the NLRB is not entitled to replace its judgment for the judgment of the employer.

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And so it's our position that by doing so, NLRB has departed from its own standard in that Detroit packaging case from 2006.

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So, for those reasons, we submit, Your Honors, that Jerry Smith was lawfully terminated.

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Let me turn my attention to... The ALJ said that Phil Smith was not credible.

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Well, it's interesting, Your Honor, because the ALJ, throughout his decision, in some places credits Phil Smith and in other places discredits Phil Smith, and doesn't explain why he's... In some places he credited Dotson, is that his name, and in other places he didn't credit Dotson.

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Correct, Your Honor, but there's no explanation

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in the ALJ's decision about why he's crediting various individuals on one point but not on the other.

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Well, maybe it was his demeanor when he testified about that particular event.

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And it could be, but that wasn't explained anywhere in the decision.

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And so for this court to know whether there was a reasoned credibility determination made,

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the basis of the credibility determination needs to be explained in A.L.J.'

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's decision.

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And Phil Smith was credited at various... Was he supposed to say his palms were sweating at that particular moment?

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He had a twitch in his eye?

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You mean during the testimony or...?

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Yeah.

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I mean, what's the A.L.J.'

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's supposed to say?

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Well, I think they all do.

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That's an old cross-examination technique.

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You ask the witnesses, if you're lying, do your hands sweat or do your eyes twitch?

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And the witness always says, no.

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And so the next question is, so whether you're lying or telling the truth, we just can never tell, can we?

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Your Honor, I don't know if they do that in Tennessee.

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I understand your point, but I think what it goes back to is if you look at the undisputed facts, you don't have to get to the credibility determinations.

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And if you look at the undisputed facts, the undisputed facts are that Jerry Smith had his hands through the chain-link fence that he hauled over 40 feet across the warehouse floor to his

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Director of Operations.

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If I could turn, because my time is limited, to Rinald Dotson.

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Rinald Dotson was terminated after a pattern of insubordinate incidents, and really it started July 31st of 2009.

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So Rinald Dotson was called in for the purpose of doing a special labeling project.

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Special labeling is one of the functions in the warehouse.

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He was called in for overtime, so he came in two hours early for his show.

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Special labeling is basically where packages have to be relabeled, is what special labeling is.

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But the point here, Your Honor, is that it's distinct from Doss's normal job function, which is replenishments and putaways.

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So he operates a forklift and puts various products away, which is different than slapping labels on a box.

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It's a different job function.

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And so he was called in that day for the specific purpose of doing special labeling, slapping the labels onto the boxes.

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And when manager Wendich arrived, he sees Dotson doing replenishments, which is his normal job function.

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There would be no reason to call someone in two hours early and give them overtime.

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But the testimony was there was a woman that was in charge of the special labeling project.

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that they had run out of boxes, and she said if he hadn't, and she asked him to go get some more boxes, and if he hadn't done that, she would have been idle as well as he would.

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That's the evidence that the ALJ created, right?

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Your Honor, I think that accounts for one of the three.

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So, Ronald Dawson testified that he did.

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three replenishments were put away during that two-hour window when he was called in early.

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I think that the testimony is that one of those replenishments was at the request of Tiffany Robinson, who was the lady who was managing the special labeling project.

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It doesn't explain the other two replenishments, which were by his own admission over 30 minutes.

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So he spent over 30 minutes of this two-hour period doing

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replenishment work that was unrelated to the special labeling project that he had been called in specifically.

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The ALJ's point was that the company before issuing any kind of disciplinary action against him should have investigated.

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And if the company had found that they were out of

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He was there to do labeling and they didn't have any more boxes to put labels on he had to go get some it seems Doubtful to the ALJ that he would have been disciplined well and let me address that your honor because the ALJ refers to the lack of a meaningful investigation and and specifically Cites the Bantat case for lack of a meaningful investigation our point your honor

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is that Windage directly witnessed Ronald Dodson doing what he was not supposed to be doing.

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And the lack of a meaningful investigation is where you have two employees that are pointing the finger at each other, and you have to decide which one's telling the truth and which one's not.

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In the situation where Windage had the knowledge already that Dodson was called in for the special labeling project and saw him doing other tasks,

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I'm not sure what there was to investigate at that point.

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And so it's our position that this so-called meaningful investigation would have led to the same place we are right now.

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So presumably Dotson would have testified consistently with his, or he would have explained in the investigation what he explained on the witness stand, which is that one of those requests was to complete the special labeling, but I don't know that that changes the outcome.

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And recall that

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the level of discipline that was issued to Dotson based on that whole incident was a verbal warning.

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So that was the first step.

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And then after that, there were other instances where he had insubordinate interaction.

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Do you contest that whether management knew that he was

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pro-union and actively a pro-union at that point?

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I don't contest that.

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I do contest that that played any part in the disciplinary decisions that were issued in this case.

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So after Dodson had the incident with special labeling, next, on August 20th, Windage sees him operating a Dundage machine, which is another function of the warehouse.

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He goes up to him and says, why aren't you doing replenishments?

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And Dotson says, well, my lift wasn't working.

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That's why I'm doing this.

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So Windage says, well, we'll use another lift.

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and walks away, and Dotson doesn't use another lift.

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Windich goes back over to him, and he's still using the Dundich machine.

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So there was a pattern of activity.

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And then six days later, on August 26, Dotson disrupts a pre-shift meeting.

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And he's talking to Carolyn Jones, who's another employee, during the pre-shift meeting.

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Windich and

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Windich and Smith sit down with them and explain, you know, you shouldn't be talking during the pre-shift meetings.

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And then two days later, Dotson, as the pre-shift meeting begins, gets on his lift and drives away as the manager's conducting the meeting.

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And that really was the final straw in a pattern of behavior.

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And really what the... As to that, wasn't there testimony that people missed pre-shift meetings and that they weren't fired as a consequence?

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There was testimony that people missed pre-shift meetings, but there was no testimony that would make that similarly situated at this instance.

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So there was no testimony that would say that the person who missed the pre-shift meeting

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left at the beginning of the pre-shift meeting as the manager was starting the meeting after having been discussed two days earlier that they shouldn't be interrupting pre-shift meetings.

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It's more the disruptive effect than it is missing the meeting.

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It's the fact that he gets on a lift as when this was starting the meeting and drives off.

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And what are the other employees?

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Is this the one where he said he had to go to the bathroom?

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It is, Your Honor.

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That is what he said.

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Actually, the ALJ, one of the few credibility findings in OHL's paper was that Dotson had not needed to go to the bathroom or had not explained that to OHL.

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I see that my light is on, so I suppose that reserved.

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Okay, we'll give you time for a bottle.

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Thank you.

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May it please the court, my name is Micah Joseph for the NLRB.

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I'd like to begin by addressing some of the issues that were raised by opposing counsel.

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First of all, with regard to Smith's discipline, Mr. Jerry Smith, it's important to recognize that the ALJ

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not only found that the fear was not reasonable, but in fact his primary finding, the ALJ's primary finding, was that Phil Smith simply did not feel threatened.

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That is at page 446 of the appendix for that finding.

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There were numerous reasons that the ALJ made that finding.

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First of all,

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Contrary to what was noted earlier, the ALJ found that the individuals were about the same size.

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This is at page 446 of the appendix.

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Not only were they both about the same size, they were about the same size as a separate individual, White Beard, who had had a confrontation with manager Phil Smith.

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And the ALJ found that none of them would qualify for the Tennessee Titans.

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That's right, Your Honor.

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A little quip there.

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But all three of these individuals were about comparable in size.

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Manager Phil Smith testified that he had not felt intimidated in any way when he had this confrontation with Dwight Beard, who walked right up to him, took off his glasses, as if spoiling for a fight, and called him a damned liar.

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Under those circumstances, when we compare that to what happened with Jerry Smith, where the individuals were separated by the fence, there was a security guard between them.

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Jerry Smith was, in fact, allowed to come back after lunch, which suggests that no one actually thought there was a credit to fear here.

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Under all these circumstances, and of course the fact that manager Phil Smith was the one who went up to him as if to try to start something himself.

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Under those circumstances, there was absolutely nothing to support the claim that Manager Smith felt threatened, and in the alternative, given those same circumstances, the ALJ noted that any such fear would have been completely unreasonable.

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Along those lines, I also want to note that there was a credibility finding that when Jerry Smith said, both of you, it was understood by everyone that he was referring to Phil Smith and to his girlfriend, Carolyn Jones.

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That he was asking both of them, what's the problem?

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And that's based on the fact that then when Phil Smith came up, he said, according to his own testimony, that anything between Carolyn Jones and me is none of your business.

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So that was, again, him trying to start something.

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With regard to credibility, I want to note that at the outset of the ALJ's decision at 427, the ALJ notes that he is relying on demeanor throughout.

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But even where he doesn't get into an extended discussion of demeanor, it's clear that in balancing the testimony of opposing witnesses, he makes his credibility determinations based on numerous surrounding facts.

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the inherent probabilities, he's relying on a number of considerations.

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Therefore, those credibility determinations are subject to the same high standard that this court always applies.

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With regard to Dotson and his behavior on July 31st,

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It's clear from the record that everything that he was doing on that day was completely pursuant to the instructions he had received from the company.

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He had been instructed by Newbury, who was the individual in charge of special labeling.

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The company admits she was in charge.

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He had been instructed by her to go get more product so that she could continue to do the work.

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He had standing instructions from his supervisor, Barbara Ougi, who was not on the scene at the time.

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And the standing instructions were that when he's doing replenishments, he's to help other individuals who ask him for help with that task.

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So when he did the other two replenishments, he was clearly acting within the constraints of what he'd been told to do.

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And at page 438,

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It's noted that Newbury, in fact, told him to go ahead.

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She was in charge of the project.

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He asked, can I go fulfill this replenishment for this other individual?

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And she told him to proceed with that.

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With regard to the issue of Bantech and the reasonable investigation, the company is simply wrong as for the law.

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The case cited in our brief K&M Electronics, which is parenthetical as the case that's relied on in Bantech, that case involved

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an alleged incident that was viewed by a supervisor, witnessed by a supervisor, and the company failed to perform any sort of investigation, in particular by asking the individual at issue, the accused individual, what their side of the story was.

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The board in that case found that there was essentially a rush to judgment, a sort of railroading of the employee for improper reasons.

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And that's what we have here as well with regard to both Dotson and Smith, the failure to talk to witnesses.

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In Smith's case, Cartwright and Jones, and in this case, the failure in particular to talk to Mr. Dotson, who was in a position to give an explanation of what he was doing, the failure to talk to Newbury.

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All of those circumstances show that there was simply a rush to judgment here.

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This court's Tasty Baking case, which is noted in our brief but for a different proposition, that provides another example of conduct, alleged conduct, that was witnessed by a supervisory individual, in that case, a floor monitor.

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And the failure of the company to take steps to actually investigate or follow up on that demonstrated that there was the same rush for judgment.

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So both K&M Electronics and Tasty Baking showed that the company's claim is contrary to the law.

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With regard to the supposed offenses that Dotson is claimed to have committed on August 20 and August 26, which the company claims were sort of part of a chain of purported disruptive behavior, the ALJ discredited claims that he, in fact, engaged in any kind of insubordination on those two occasions.

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And there is no basis for reversing those credibility determinations.

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Those are both at page 439 of the appendix.

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As for the pre-shift meeting on August 28, I believe the testimony was that he left to go to the bathroom before the meeting had started.

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There was no disruption of the actual meeting.

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And the ALJ did not discredit his testimony that he needed desperately to go to the bathroom.

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It was simply found that he didn't have an opportunity to explain that to the company at the time that he was discharged.

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Since there are just a few more minutes remaining, I want to note a couple of legal flaws in the other arguments that the company has made with regard to provocation.

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In particular, the company has claimed, with regard to Ms.

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Jones and the fact that she was provoked,

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The company claims that the issues here are that the doctrine the board is relying on is somehow unbounded or improperly applied in this case.

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But the cases that we cite in our brief are clearly to the contrary, in particular Steinerfilm, which is a first circuit decision.

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In that case, the court noted that there are limits.

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In fact, this is a matter of balancing.

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You look at the nature of the provocation and the nature of the response, and that's even more clearly defined in the E.I.

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DuPont board decision that we cite.

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In that case, the board not only applies the same balancing test that the ALJ applied in this case,

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But in the footnote, I believe it's the third footnote, the board notes that it's drawing on longstanding principles which emerge from picket line misconduct cases, where the board has always balanced the nature of the provocation against the nature of the reaction.

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So the claim that this was in any way a departure from precedent is completely unwarranted.

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With regard to the claims of

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a loss of jobs, a threat of a loss of jobs, which is a threat that was made by Manager Young.

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The company tries to rely on an employer's right to

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state laid law in some form and the rights of strikers, but it omits to mention that the credited testimony was that she in fact told employees that a lot of them would lose their jobs.

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It's that statement that she failed to properly explain or walk back in any meaningful way by then saying, well, the company will have some leeway as to whether or not to rehire you.

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That didn't make her initial statement that a lot of you will lose your jobs, any less threatening.

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Further, with regard to the benefits and the threats that Manager Smith made about the gain shares, I want to note, first of all, that the company doesn't offer any sort of defense in its briefs to the statements that he was actually found to have made, specifically in July when he threatened Jerry Smith and said, you don't know what you're risking.

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You could lose your gain shares if the union comes in.

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The company simply doesn't try to defend that.

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Furthermore, the company doesn't try to defend the credited testimony that he said that employees were absolutely not eligible, or the company doesn't even mention the fact that he threatened other benefits.

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He threatened meals and apparel that employees enjoyed at the time so that they would not have those.

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As for the unlawfulness of statements that he made at the meeting, even what the company admits he said, which is that employees under a collective bargaining unit would not be entitled to participate in the gainshares, the cases we cite, Niagara Wires and

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the Melville confections case from the Seventh Circuit.

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Those cases say that the exact words that he used are a per se violation of the act.

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That's well established.

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It's completely separate from whether or not there was an unlawful policy, which we acknowledge wasn't alleged, that the policy itself was unlawful.

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But in the Melville confections case, the crux of the violation was publicizing that policy, even outside the 10-D period, continuing to publicize and communicate and bring to the attention of employees an unlawful policy

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is itself unlawful.

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Finally, with regard to confiscation, we want to note that we're simply relying on the public aviation and the coercive nature of the statements that Manager Smith made to Mark Yelverton when he yelled, not in my warehouse, and tore up the papers, which demonstrated that he was not concerned about cleaning up the break room.

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He was concerned about his intention was to deprive employees of their rights.

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So based on those points, unless the court has any questions, we would ask the court to enforce the fourth order in full.

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Thank you.

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We'll give you two minutes for a bottle.

[00:25:44] Speaker 03:
Yours almost start with the publication point and I didn't address this in my opening, but it relates to Carolyn Jones conduct in a meeting with management.

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Carolyn Jones.

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admitted that she called her manager, Jim Windage, a lying sack of crap in a meeting that was to discuss an incident at a security line.

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And she disagreed with OHL's assessment of what she had done at the security line.

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She thought she was being disciplined unfairly.

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But that doesn't excuse her calling her manager a lying sack of crap.

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And this concept that there has to be a balancing of the provocation with the nature of the provocation balanced with the nature of the response

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There was no such balancing done by the NLRB or the ALJ in the decision.

[00:26:42] Speaker 03:
So if there is such a balancing that needs to be done, we submit it wasn't done in this case, and we submit that if you did the balancing, calling your manager a lying sack of crap is not the appropriate response, even if you think you're being disciplined unfairly.

[00:26:59] Speaker 03:
So also with respect to

[00:27:06] Speaker 03:
The Opposite Council referenced the insubordination on August 20th for Renald Dotson and said that that was discredited.

[00:27:16] Speaker 03:
What was discredited was that Renald Dotson was ever given a written warning based on that insubordination, not that

[00:27:27] Speaker 03:
he had actually been doing work that he wasn't supposed to be doing contrary to his assignment.

[00:27:34] Speaker 03:
So the underlying facts were not discredited.

[00:27:37] Speaker 03:
The fact that he was given a written warning was what was discredited.

[00:27:43] Speaker 03:
In terms of one last point, there's a lot of discussion of rush to judgment in this case.

[00:27:52] Speaker 03:
You heard rush to judgment.

[00:27:56] Speaker 03:
respectfully, even if you find that there were flaws in the way that OHL investigated these incidents, there's no indication that that had anything to do with the union support of Mr. Dotson or Mr. Smith.

[00:28:14] Speaker 03:
And there was no explicit finding that there was a connection between them.

[00:28:19] Speaker 03:
And so we would submit that

[00:28:23] Speaker 03:
You know, it's really kind of beside the point because the point is that there's no evidence connecting the discipline to any anti-unionist.

[00:28:34] Speaker 03:
For those reasons, we ask that you grant the petition for review.

[00:28:38] Speaker 03:
Thank you to both sides for the argument.

[00:28:39] Speaker 03:
The case is submitted.