[00:00:01] Speaker 01:
Case number 15-1204 at Elm, 800 River Road Operating Company, LLC, doing business at Woodcrest Health Care Center, positioner, versus National Labor Relations Board.

[00:00:13] Speaker 01:
Mr. Geshe-Gorn for the positioner, Ms.

[00:00:15] Speaker 01:
Von Wilpert for the respondent, and Ms.

[00:00:17] Speaker 01:
Hanson for the intervener.

[00:00:57] Speaker 05:
Good morning.

[00:01:01] Speaker 00:
Good morning, your honors.

[00:01:03] Speaker 00:
May it please the court, my name is Brian Gershengorn, I represent the petitioner, 800 River Road Operating Company, LLC, doing business as Woodcrest Health Care Center.

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One of the primary purposes of the act and the board is ensuring that employees can freely choose their own collective bargaining representatives.

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In this case, Woodcrest was denied a full and fair hearing as to whether supervisors committed objectionable conduct and coercive pro-union activity that tainted their election.

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More importantly, Woodcrest employees were denied the ability to participate in an election free of coercive conduct.

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Woodcrest and its employees were denied this right by three egregious errors.

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First, and frankly the most egregious,

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While the board recognized that the hearing officer erred when he failed to perform the ministerial act of providing subpoenas to Woodcrest, ex parte or otherwise, it then went on to simply conclude with next to no analysis that this action was nothing more than a harmless error and simply affirm the hearing officer's ruling.

[00:02:09] Speaker 00:
The board affirmed the hearing officer's decision to not allow Woodcrest to question eight witnesses it had not, quote unquote, vetted prior to the hearing and thus could not offer an offer of proof as to their testimony.

[00:02:24] Speaker 00:
again by the board with little to no analysis, while not considering the fact that Woodcrest was not permitted under board law pursuant to Johnny Poultry to question these individuals.

[00:02:36] Speaker 05:
So I don't understand that argument, just so I'm clear on Johnny's poultry.

[00:02:42] Speaker 05:
I don't read it as giving the employee a Fifth Amendment right not to talk to the employer.

[00:02:51] Speaker 05:
As I understand, the board was saying that the burden is on the employer to say, I want to talk to you, Mr. or Mrs. employee, but anything you say, I'm not going to hold against you.

[00:03:05] Speaker 05:
I'm just trying to find out the facts.

[00:03:08] Speaker 05:
You shouldn't view this as a coercive investigation, and there'll be no negative ramifications as to you.

[00:03:18] Speaker 05:
And in your case,

[00:03:22] Speaker 05:
The employer did interview over 100 employees.

[00:03:28] Speaker 05:
Isn't that right?

[00:03:28] Speaker 05:
So, I mean, saying Johnny's poultry, I didn't quite understand that argument.

[00:03:33] Speaker 00:
Well, Your Honor, I understand your point on Johnny poultry and not being a Fifth Amendment right.

[00:03:39] Speaker 05:
I think what— What Tana Mount, too, yeah.

[00:03:42] Speaker 00:
Correct.

[00:03:43] Speaker 00:
I'm sorry.

[00:03:44] Speaker 00:
What Woodcrest would maintain is that it did approach these specific eight individuals whom they selected as having the most knowledge of what this alleged coercive activity was going to be.

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Those individuals, specifically those eight, exercised their Johnny Paltry rights not to talk with the employer or its representatives.

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And so what the hearing officer did

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was put a vetting requirement upon Woodcrest to say, you need to let me know what these witnesses are going to say.

[00:04:17] Speaker 05:
So I understand the hearing officer to have allowed circumstantial evidence to show the relevance of witnesses that the employer wanted to call.

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Didn't have to talk directly to the employee.

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but could offer, as he did in some instances, or it did in some instances, circumstantial evidence.

[00:04:42] Speaker 00:
Well, I think it's all under the backdrop, Your Honor, of this was a day and a half into the hearing, specifically at a lunch recess.

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The employer, based upon the evidence that was elicited up till that point after a day and a half of the hearing,

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had requested first and foremost these six subpoenas to call the very individuals who were the subordinates of one of the alleged supervisors who was allegedly engaged in this coercive election activity.

[00:05:13] Speaker 05:
Who had, what, 22 or 24 employees under him.

[00:05:15] Speaker 00:
That's correct, Your Honor.

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And what Woodcrest had did was identified the six who were particularly under Mr. De Dios, the one particular supervisor, and said to the hearing officer, we would like these subpoenas to be issued.

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So I understand your argument about you get to try your case the way you want to in the order of witnesses, et cetera.

[00:05:39] Speaker 05:
But every time a representation was made,

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these witnesses were going to have something relevant to say, they didn't.

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And so after a day and a half, how long is the hearing officer supposed to sit there without some reasonable proffer?

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That understood, Your Honor, and what Woodcrest was attempting to do specifically with the six subpoenas.

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Because as far as Woodcrest 19, and we note in our brief,

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The four supervisors that we called only within the day and a half of the hearing, not surprisingly, did not admit to the course of activity.

[00:06:21] Speaker 05:
So what about these five witnesses that the hearing officer was ready to hear from?

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in regards to their testimony?

[00:06:31] Speaker 05:
Yeah.

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And your client said, we're withdrawing from the hearing.

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And the reason for that, Your Honor, was based upon the evidence solicited only after a day and a half of the hearing when Woodcrest was shut down by the hearing officer.

[00:06:46] Speaker 05:
No, there were five witnesses.

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Understood.

[00:06:49] Speaker 05:
That's what I want to know.

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What about that?

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I mean, you can't create the error yourself, can you?

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and then come to the court and say, we weren't allowed to call witnesses, and there were five people that you didn't hear from.

[00:07:02] Speaker 00:
Well, Woodcrest wasn't looking to create the error.

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We did have those five additional witnesses.

[00:07:07] Speaker 05:
No, but I'm getting at the point that the board says harmless error.

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You want to focus on the violation about the subpoena should have issued.

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The board said, well, even if they had issued, the hearing officer, having sat there for a day and a half, was going to require some proffer

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that these witnesses were going to have some relevant evidence.

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Right.

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And Your Honor, what Woodcrest would maintain is based upon Judge Brown's opinion in Manor Care that this wasn't harmless error.

[00:07:36] Speaker 05:
Well, Manor Care, what, says that the board's response was to summary?

[00:07:42] Speaker 00:
Yeah, that's correct, Your Honor.

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And I think specifically that while

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there's a deferential standard, it's not meaningless.

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And here, what the board... Also, just so we're clear, Judge Brown is writing for the court, so it's the court's opinion, all right, in manner care.

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And I just want to understand why you think that entitles you to get a grant of the petition here.

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Because what the board did here was nothing more than rubber stamp the hearing officer's determination that he failed to, while acknowledging that it's ministerial in nature and pursuant to the act itself,

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the hearing officer needed to issue the six subpoenas.

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In fact, the Supreme Court has spoken about this issue in Lewis v. NLRB and has said, this is a ministerial procedural aspect.

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The subpoenas must be issued in a representation hearing.

[00:08:40] Speaker 05:
So the question is, the board says, in terms we were discussing in the last case, plain error by the hearing officer.

[00:08:50] Speaker 05:
And your argument is that the board should have spelled out in more detail

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why it was farmless error?

[00:08:58] Speaker 00:
That's correct, Your Honor, because if the board acknowledged, the board in fact acknowledged in its rather brief decision that the hearing officer made an error, the subpoena should have in fact been issued.

[00:09:11] Speaker 05:
So there is no concept of harmless error in board proceedings?

[00:09:16] Speaker 00:
No, there could be a harmless error, Your Honor, but here specifically what Woodcrest and the reason Woodcrest wanted just these six particular subpoenas to issue.

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And one of the arguments

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Interestingly enough, that the Union makes in its papers, and we note this in our reply, is the Union acknowledges that Woodcrest needed these six individuals.

[00:09:37] Speaker 05:
No, I understand your argument there, but let me just say in your brief, you make representations about what these witnesses would testify to.

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And what's the basis that you're making those statements?

[00:09:48] Speaker 00:
Well, Woodcrest maintained, and we had made this argument to the hearing officer as well, was that while this is what we understood, these particular witnesses would testify too.

[00:10:05] Speaker 00:
Who knows, at the end of the day, what the individual witnesses would have actually tested?

[00:10:09] Speaker 07:
What was the basis for your understanding?

[00:10:11] Speaker 07:
What was the factual basis for that understanding?

[00:10:13] Speaker 00:
The basis was, Your Honor, that these were the employees that the company was hearing from vis-a-vis the individuals who were subordinate to Mr. de Diaz.

[00:10:22] Speaker 07:
I don't understand that answer.

[00:10:25] Speaker 07:
He had 24 subordinates, and he carved six out and said he had a reason to believe that they would have testimony about his

[00:10:35] Speaker 07:
misconduct as a supervisor.

[00:10:37] Speaker 07:
Are you saying that the only basis for that reason to believe was that they were his subordinates?

[00:10:45] Speaker 00:
I think that is one of the main reasons.

[00:10:47] Speaker 07:
No, not one of the main.

[00:10:48] Speaker 07:
Then what are the other ones?

[00:10:49] Speaker 00:
I would say that that is the only reason.

[00:10:51] Speaker 00:
That's the reason, Your Honor.

[00:10:52] Speaker 07:
So if you had asked for 24 subpoenas, one for every single subordinate, that would have had to have been allowed as well.

[00:11:00] Speaker 00:
Well, and I think there is an important distinction, Your Honor.

[00:11:04] Speaker 00:
And the board and the hearing officer addressed this.

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And the company did not go through, as the hearing officer said, the entire Excelsior list.

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We made it narrow.

[00:11:15] Speaker 07:
I'm just asking you your legal position.

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If you had, because you don't know what they're actually going to say, all you've got is that they work for this person whom you suspect of having engaged in misconduct.

[00:11:31] Speaker 07:
So on what legal basis could we write an opinion that says you have to issue 6, that's not, that can't be harmless, but you don't have to issue 24, that would be harmless.

[00:11:44] Speaker 00:
Well, I understand the court's question, and I don't think that there is a specific threshold.

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However, in this particular instance, Your Honor,

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we weren't allowed to talk with one of them.

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And maybe what the hearing officer should have done was permit a limited number, but he permitted zero.

[00:12:02] Speaker 00:
In light of the law that clearly says the subpoenas have to issue, the board took it a step further by saying it was harmless error.

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But in fact, the board doesn't even address the concept.

[00:12:17] Speaker 00:
I'm sorry, the board said it was harmless error and said that even if the subpoenas had issued,

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they would have been revoked.

[00:12:23] Speaker 07:
But the board- That's because the subpoenas may have to issue, but the testimony doesn't have to be allowed, is that correct?

[00:12:28] Speaker 07:
I'm trying to understand how this whole process works.

[00:12:31] Speaker 00:
That is correct, Your Honor, and going back to the court's decision in manner care authored by Judge Brown, it's not the fact that

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these subpoenas may not have, could have actually been revoked.

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It's the fact that the board, in its decision, gave absolutely no ink to the concept of what it even means to have revoked a subpoena.

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Woodcrest maintains that... Gave no what?

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Gave no ink at all in its decision as to whether or not there was a color or basis to revoke the subpoenas.

[00:13:03] Speaker 05:
But the board, I thought, said...

[00:13:05] Speaker 00:
It just said it.

[00:13:07] Speaker 05:
That's ink.

[00:13:08] Speaker 07:
But all the board did was say it.

[00:13:17] Speaker 07:
You can figure out what they say is to call them, so you have to be allowed to call them, but then if you don't know what they're going to say, we don't, I just don't understand how this whole thing works, but if the board's rationale was this, okay, had to issue the subpoenas, but didn't have to allow the testimony in, and was within its rights after you had created 10 witnesses before it, none of whom, or maybe only one of whom, but virtually none of whom had anything to say directly about the issue, to support your position, and at some point,

[00:13:49] Speaker 07:
to say enough.

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If you want to bring more people in, you've got to have some basis to understand that they're going to say something favorable other than they worked there at the time of the election.

[00:14:04] Speaker 07:
I had understood the board's decision to be harmless in that sense.

[00:14:09] Speaker 07:
Yes, they should have done the subpoena, but there was no obligation at this point after a day and a half

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and let them testify.

[00:14:19] Speaker 07:
That's why it was harmless.

[00:14:20] Speaker 07:
That seems like an explanation to me.

[00:14:22] Speaker 07:
It's obviously one you disagree with, but I don't think the problem is lack of an explanation.

[00:14:27] Speaker 00:
Well, and I think the reason we disagree with it, Your Honor, is that in order for a subpoena to be revoked, the subpoena requests evidence whose production doesn't relate to any matter under investigation.

[00:14:38] Speaker 00:
And what Woodcrest was wanting with the issuance of these six subpoenas was to allow for testimony of the very employees who were the subordinates to Mr. Godeos.

[00:14:48] Speaker 00:
I get that.

[00:14:49] Speaker 07:
I'm just not sure.

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I don't know on what basis we could say six rather than 12 or 24.

[00:14:56] Speaker 07:
And I get that you didn't, but I don't get, given the nature of the argument, on what basis would we say six, but not all?

[00:15:08] Speaker 00:
Well, and I think the answer there, Your Honor, is that regardless of the number,

[00:15:15] Speaker 00:
the testimony of these six individuals was central or at the heart of Woodcrest's case, which is whether or not the supervisors were actually engaged in coercive pro-union conduct.

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And the best way, frankly,

[00:15:31] Speaker 00:
for Woodcrest to be able to establish that is to question the very individuals, the subordinates of Mr. Cadellos.

[00:15:37] Speaker 00:
We weren't afforded that opportunity with even one.

[00:15:40] Speaker 00:
The hearing offer simply said no, and the board simply affirmed it without going through the fact of whether or not it was proper

[00:15:48] Speaker 00:
to call that harmless error and going through why the subpoena would have been revoked.

[00:15:54] Speaker 00:
Woodcrest maintains the subpoena wouldn't have been revoked because the individual's testimony went to the heart of the issue of what Woodcrest was trying to demonstrate here.

[00:16:03] Speaker 00:
I see I'm well over my time, but I'm happy to answer more questions.

[00:16:08] Speaker 05:
All right.

[00:16:08] Speaker 05:
Thank you, William.

[00:16:09] Speaker 05:
Council for the board.

[00:16:11] Speaker 00:
Thank you.

[00:16:22] Speaker 02:
One of your honors may please the court.

[00:16:25] Speaker 02:
My name is Marnie von Wilpert and I represent the National Labor Relations Board.

[00:16:29] Speaker 02:
Your honors, in this case, Woodcrest always had the burden to prove objectionable conduct to overturn a validly conducted board election.

[00:16:37] Speaker 02:
We gave Woodcrest plenty of opportunity.

[00:16:39] Speaker 05:
Okay, let me just ask, under the board's rules and manuals of procedure, there is no pre-hearing discovery, is that correct?

[00:16:48] Speaker 05:
That's correct, your honor.

[00:16:51] Speaker ?:
So,

[00:16:53] Speaker 05:
There's a Johnny Poultry's right, and if the employees, for whatever reason, say to the employer they do not wish to discuss what they might testify about at the hearing, the only way to find out is to hear from them.

[00:17:15] Speaker 02:
No, Your Honor, that's not quite right.

[00:17:18] Speaker 02:
You're correct with Johnny's Poultry that employees can refuse to be interviewed about the union activity in the election.

[00:17:25] Speaker 02:
However, supervisors under the Act are not employees, and they do not have the benefit of Johnny's Poultry.

[00:17:29] Speaker 02:
So oftentimes, employers will interview supervisors who, especially when the company is conducting a unions avoidance campaign, are on alert to watch for union activity, and that is how they get most of their evidence.

[00:17:39] Speaker 05:
That happened here.

[00:17:42] Speaker 05:
They had one employee supervisor who testified to some, what, third-hand information about these or one of these other four supervisors.

[00:17:57] Speaker 05:
Right?

[00:17:58] Speaker 02:
Which employee, Your Honor?

[00:17:59] Speaker 02:
They had a couple of employees testify.

[00:18:00] Speaker 05:
Well, it's the witness who gave second or third-hand information.

[00:18:06] Speaker 05:
She had heard somebody say that somebody said that somebody said that.

[00:18:10] Speaker 02:
Yes, Your Honor, that was Ms.

[00:18:11] Speaker 02:
Lori Sink, the Wilcrest Administrator.

[00:18:14] Speaker 02:
And she said that Susan Langdon, another supervisor, who again does not have Johnny's Polter Protections because she's a supervisor,

[00:18:21] Speaker 02:
had directly seen an employee, Remy Sejimi, speaking with one of the alleged supervisors, Ms.

[00:18:26] Speaker 02:
Codero, about the union.

[00:18:28] Speaker 05:
But what I'm trying to understand, if your target is the supervisors, presumably the supervisors are not going to tell you what you want to hear.

[00:18:41] Speaker 02:
The four supervisors?

[00:18:43] Speaker 02:
Yeah.

[00:18:44] Speaker 02:
But others will.

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And others did, as Woodcrest attorney proffered.

[00:18:47] Speaker 02:
You know, we had the example here of Ms.

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Ramey Sejimi, who was an employee, who Woodcrest said exercised her Johnny's Pulitzer rights not to speak.

[00:18:54] Speaker 02:
Yeah, Woodcrest was able to obtain enough information to get her into the record to testify, because they said, well, we talked to a supervisor, Ms.

[00:19:02] Speaker 02:
Susan Langdon, who said she saw her speaking about the union with one of the four alleged supervisors.

[00:19:07] Speaker 02:
It is curious, though, why they didn't call Ms.

[00:19:10] Speaker 02:
Lincoln herself, because she could have provided that testimony, yet they didn't call her.

[00:19:13] Speaker 07:
Did she provide testimony about Virgil de Dios?

[00:19:15] Speaker 02:
Miss Langdon, the record doesn't state that, Your Honor.

[00:19:18] Speaker 07:
However... So how are they supposed to prove this claim as to Virgil?

[00:19:21] Speaker 07:
I don't know if I'm saying that right.

[00:19:23] Speaker 07:
Virgil de Dios?

[00:19:24] Speaker 02:
Virgil de Dios, yes ma'am.

[00:19:27] Speaker 02:
Well, the union... I'm sorry.

[00:19:30] Speaker 02:
The employer already said that it had witnesses when it came to the RD.

[00:19:34] Speaker 02:
It said, we have with the regional director, we have several witnesses.

[00:19:37] Speaker 02:
who will testify to Virgil Dedeus' conduct.

[00:19:40] Speaker 02:
So they already said they had them.

[00:19:41] Speaker 02:
Second, one of the five witnesses that was supposed to be scheduled for Monday, and this is on Joint Appendix

[00:19:48] Speaker 02:
316, 317, the attorney said, of the five witnesses who had not been vetted, the fourth will testify that Israel told employees, words to the effect, to vote what your heart tells you.

[00:19:58] Speaker 02:
So they clearly had the proof.

[00:20:00] Speaker 02:
And Monday morning, the hearing officer opened the doors.

[00:20:02] Speaker 02:
The court reporter showed up.

[00:20:03] Speaker 02:
You're ready to hear the five scheduled witnesses, one of them who had information about Virgil de Dios, apparently, and they didn't bring them, and said they walked out.

[00:20:10] Speaker 02:
So it's not as if the board didn't give them an opportunity here.

[00:20:13] Speaker 02:
And another way to get information without directly interrogating employees is by subpoenaing documents.

[00:20:19] Speaker 02:
You can subpoena documents before the hearing.

[00:20:22] Speaker 02:
Employers usually know when these union activities are happening, such as flyers on bulletin boards, where they see employees' pictures in the bulletin boards.

[00:20:29] Speaker 02:
They often subpoena those in these rooms.

[00:20:31] Speaker 05:
But here the argument was that these supervisors had said things that rendered

[00:20:38] Speaker 05:
the non-laboratory setting for the election.

[00:20:43] Speaker 05:
So that's not, unless they did it by email, it's unlikely you're going to have documents.

[00:20:49] Speaker 02:
Yes, sure.

[00:20:50] Speaker 02:
In this case, that's true.

[00:20:51] Speaker 02:
I was just trying to answer the broader question of how they could get discovery.

[00:20:55] Speaker 02:
But the main point with this case is that in order to get this evidentiary hearing after the union won the election on JA 5 and 6, Woodcrest affirmatively stated to the regional director, the employer provided names of several supervisory and unit employees who the employer contends will testify that the supervisors actively and frequently solicited union cards

[00:21:18] Speaker 07:
I look at that document and I was surprised that there's nothing more than just the vault allegations, unless there's some part of the document we're missing.

[00:21:25] Speaker 07:
So I'm trying to figure out, I'm not sure that's saying anything that they weren't saying when they said, we think one of these folks is going to have to say it because we believe it happened.

[00:21:36] Speaker 02:
Yes, sure.

[00:21:37] Speaker 02:
That's simply a proffer from Woodcrest Council.

[00:21:40] Speaker 02:
There's no evidence to support that.

[00:21:42] Speaker 02:
And all that does is get them into the hearing, and then they have to actually produce it.

[00:21:45] Speaker 07:
I get the very confused when you look at that, because that proffer goes on, and then there's some councils to which they have lists of people that they're proffering.

[00:21:53] Speaker 02:
Yes, Your Honor.

[00:21:54] Speaker 07:
And as to those, the Regional Director goes, no, there's no there there.

[00:21:56] Speaker 07:
And we're not going to have a hearing on those.

[00:21:57] Speaker 07:
But then as to this one, where they just had this sort of flat allegation,

[00:22:02] Speaker 07:
Without any identified individuals or identified content of testimony, the regional director thought there was no... Is there another document that was attached to that that spelled things out or...?

[00:22:15] Speaker 02:
Yes, Your Honor, there is, but that's specifically not part of the record here, because that information is not shared with the hearing officer or board council or anyone.

[00:22:23] Speaker 02:
It's only given where the regional director's eyes only, and that's because by our rules and our case standing manual,

[00:22:30] Speaker 02:
We do not want our hearing officers to be prejudiced before they come in.

[00:22:34] Speaker 02:
And so the hearing officers are not allowed to see that document where the attorneys have laid out what the witnesses will say and who they will speak about, but the regional director gets to see that.

[00:22:42] Speaker 02:
And they get to determine based on those proffers, that's all they are.

[00:22:45] Speaker 02:
They're not co-companied with evidence or affidavits, if there's enough substantial issue of fact to be done at the hearing.

[00:22:52] Speaker 02:
And so as Your Honor's brought up earlier, in the employer's brief, the employer mentioned multiple times, one example is on

[00:22:59] Speaker 02:
page 53, that these eight witnesses would have testified that Lewis, Thornton, and Cordero were actively distributing union authorization cards and coerces employees.

[00:23:10] Speaker 02:
And they cite to JA 5 and 6, which is their proffers to the regional director.

[00:23:15] Speaker 02:
So all they're citing for these affirmative declarations that they know what these witnesses would have testified to are their own earlier proffers, which were unproven at the trial.

[00:23:25] Speaker 02:
We pointed out in our brief, for example, on JA

[00:23:30] Speaker 02:
uh... three eleven three thirteen that mister mendelson with press attorney the trial told the hearing officer well i don't mean to tell you what these eight people have because i can't affirmation assure you what they said since i could talk to them so i don't understand why in their brief

[00:23:46] Speaker 02:
what Crest is now claiming, they know what these people would have testified to, were at the trial, they couldn't make an offer of proof.

[00:23:51] Speaker 02:
Under this court's, so the board's hearing officer's decision after 10 witnesses came in to ask, you know, can we have some offers of proof for five witnesses is consistent with this court's precedent.

[00:24:03] Speaker 02:
In both

[00:24:05] Speaker 02:
SSC Mystic and in Salem Hospital, this court said that in order to find a reversible error with a subpoena decision, the company has to show it was prejudiced by the decision.

[00:24:19] Speaker 02:
And in Salem, this court found that because Salem, I quote, failed to either make a proffer or to provide any other specific evidence of potential witness testimony, we cannot determine that the excluded evidence was either relevant or material.

[00:24:31] Speaker 02:
And under SSC Mystic, this court said if the company can't show that the excluded evidence was relevant or material, we have no basis for prejudice.

[00:24:39] Speaker 07:
What about the fact that the hearing officer kept saying, not just I want a proffer of evidence, I want a proffer of direct knowledge.

[00:24:48] Speaker 07:
Your Honor, that's also... And that's contrary.

[00:24:50] Speaker 07:
It doesn't have to be direct knowledge.

[00:24:52] Speaker 07:
Why can't they have indirect or circumstantial knowledge coming from these witnesses?

[00:24:57] Speaker 02:
Because, Your Honor, under this Court's precedent and the Board's precedent, hearsay and circumstantial evidence standing alone is not enough to overturn a validly conducted Board election.

[00:25:05] Speaker 02:
So in Amalgamated Clothing Workers of America, which is in our brief, 424F2D818, this Court said,

[00:25:13] Speaker 02:
specific evidence of improper conduct that materially affected the election results must be provided.

[00:25:19] Speaker 02:
And in Sitka's Sound Seafoods, which we also cited, this court said, this burden cannot be met by nebulous and declaratory assertions.

[00:25:27] Speaker 02:
Only specific evidence of specific events about specific people will do.

[00:25:32] Speaker 02:
And there's a reason for that.

[00:25:34] Speaker 02:
The employees here voted 122 to 81 for this union.

[00:25:37] Speaker 07:
And to overturn that... Specific evidence and direct knowledge, the same thing?

[00:25:42] Speaker 07:
Why couldn't they have... If you had seven employees came in and they offered circumstantial evidence, one by one, it wasn't... Collectively, wow, everybody says they saw this and it sure looked like

[00:25:57] Speaker 07:
They were handing out a union card, but I saw it from this angle, and I saw it from that angle.

[00:26:01] Speaker 07:
Everyone saw circumstantial evidence, but collectively, the picture was pretty clear as to what had happened.

[00:26:06] Speaker 07:
You say, that would not be permissible.

[00:26:08] Speaker 07:
It's fine to say we get to exclude all that.

[00:26:10] Speaker 07:
Someone has to come in and only say they know directly what happened.

[00:26:15] Speaker 02:
Well, Your Honor, I can't speak for what the board might do in that situation.

[00:26:18] Speaker 07:
No, but you have a hearing officer here who said repeatedly that the reason your proper's deficient is you're not telling me that these folks have direct knowledge

[00:26:28] Speaker 07:
And I don't know why the hearing, you could end up saying, argue that they didn't come at the end of the hearing, it didn't add up to enough specific evidence to establish a showing, but I don't know why they have to show, can only put on witnesses that have direct knowledge.

[00:26:43] Speaker 07:
Is there case law from us saying, or anywhere saying that they can only put on witnesses of people, witnesses that have direct knowledge?

[00:26:52] Speaker 02:
I do not have a case to support that right now.

[00:26:55] Speaker 02:
I'd be happy to look and submit one after oral argument today.

[00:26:58] Speaker 02:
But the hearing officer, after hearing 10 witnesses and little evidence to corroborate even their indirect knowledge, you know, Ms.

[00:27:06] Speaker 02:
Singh testified about what Raimi Sujimi would know, and Raimi Sujimi came on and said that's not true at all.

[00:27:12] Speaker 02:
I mean, the hearing officer here never once actually required them to speak to their witnesses.

[00:27:16] Speaker 02:
That's something that the company has

[00:27:18] Speaker 02:
has attached to what the hearing officer said, but he never once said, I need you to speak to them before they get on here.

[00:27:23] Speaker 07:
Now, in their reply... Well, that's saying you haven't vetted them, and you don't know that they have direct knowledge.

[00:27:29] Speaker 07:
What else could that mean?

[00:27:34] Speaker 07:
What else could it mean that you need to have talked to them and tell me what they're gonna say, and it better be spot on?

[00:27:40] Speaker 02:
Well, Your Honor, here we had a missed opportunity for Susan Langdon to testify, who said, I overheard, and I saw the conversation between Ms.

[00:27:49] Speaker 02:
Cordero when she was instructing Ramey to attend a union meeting.

[00:27:52] Speaker 02:
That would have been direct knowledge, because she saw it occur.

[00:27:54] Speaker 02:
She was right there, and she heard one of the supervisors say it.

[00:27:56] Speaker 02:
They didn't bring her here.

[00:27:58] Speaker 02:
That would have been acceptable, because that's actually the proffer that got us.

[00:28:02] Speaker 07:
That's not as to Virgil de Dios.

[00:28:03] Speaker 02:
As to Virgil de Dios?

[00:28:05] Speaker 02:
No, Your Honor, but here,

[00:28:07] Speaker 02:
The company has not shown any evidence that Mr. de Dios actually engaged in objective conduct.

[00:28:13] Speaker 07:
Well, that's their whole argument, is how are we going to do it?

[00:28:16] Speaker 07:
The question is the supervisor coerced his employees, and you won't let us call any of his employees.

[00:28:23] Speaker 07:
And yet, surprisingly, he did not admit on the stand to having done it.

[00:28:28] Speaker 02:
Yes, Your Honor, but there's no evidence whatsoever he made these statements.

[00:28:31] Speaker 02:
All we have is the company's assumptions that he did.

[00:28:36] Speaker 06:
What all the questions are really trying to get at here, and it's really puzzled me, is I don't understand how this process works.

[00:28:45] Speaker 06:
The employer has the burden.

[00:28:46] Speaker 06:
Yes, Your Honor.

[00:28:47] Speaker 06:
And they're told that over and over.

[00:28:49] Speaker 06:
And yet, there's no pre-hearing discovery, really.

[00:28:54] Speaker 06:
Yes, Your Honor.

[00:28:55] Speaker 06:
They, you know, if they don't have management employees who are willing to testify, if they need information from an employee,

[00:29:05] Speaker 06:
They can't really directly elicit that information because they have the right not to talk to them.

[00:29:11] Speaker 06:
And then there's a discussion that says, well, it can't be a fishing expedition.

[00:29:17] Speaker 06:
Yes, Your Honor.

[00:29:19] Speaker 06:
It seems very circular.

[00:29:20] Speaker 06:
I mean, how do you do this if you're trying to find out something from people who are not management employees, and you can't talk to them, or they can refuse to talk to you?

[00:29:32] Speaker 06:
Yes, Your Honor.

[00:29:33] Speaker 06:
And you have to make a proffer.

[00:29:35] Speaker 06:
But you are in fact saying, I don't, since I don't have any advanced knowledge of what they would say, I can't tell you.

[00:29:44] Speaker 06:
So it seems sort of tidological.

[00:29:48] Speaker 06:
How are you to meet that burden, if that's really the rules, other than putting these people on and exploring what they have to say?

[00:29:59] Speaker 02:
Well, Your Honor, first, that would assume the perfect situation that every employee refused to speak to the employer, which one was not the case here.

[00:30:06] Speaker 02:
They interviewed over 100 employees.

[00:30:08] Speaker 02:
In most cases, this Court has seen the employees who have been threatened have testified themselves because they want to.

[00:30:13] Speaker 02:
In manner care, we had employees testifying, say, I heard the threats.

[00:30:16] Speaker 02:
Same thing, excuse me, in, I'm sorry, I've lost my citation.

[00:30:24] Speaker 06:
But no, I understand what you're saying, that it may often be the case

[00:30:29] Speaker 06:
that if things happen and employees are upset by it and they may have said something to somebody else about their concern or whatever, so you can get at it in other ways even though it may be somewhat attenuated.

[00:30:45] Speaker 06:
But here, if you have a situation where you're trying to show that the supervisors themselves did something inappropriate, and you can't count on the supervisors to confess that they did, right?

[00:30:59] Speaker 06:
They have no reason to do that.

[00:31:01] Speaker 06:
And perhaps the people who work for them don't want to get involved, right?

[00:31:10] Speaker 06:
They may have reasons not wanting to testify about their supervisor.

[00:31:15] Speaker 06:
So it's just, it's an odd circumstance.

[00:31:19] Speaker 06:
I can't figure out how you do this unless you can get somebody to talk to you.

[00:31:26] Speaker 02:
Well, Your Honor, the employer will have to have heard that something happened in the first place.

[00:31:31] Speaker 02:
I mean, they can't just assume that there was a bad statement.

[00:31:33] Speaker 02:
So an employee would have had to have spoken up.

[00:31:36] Speaker 02:
Someone must have overheard it.

[00:31:38] Speaker 02:
How else would the employer know to even ask those questions if someone hadn't spoken up in the first place?

[00:31:44] Speaker 05:
Well, I think the other aspect of this to remember is this is in the context of a procedure for arranging for an election.

[00:31:56] Speaker 05:
So there are procedures, and here there was a stipulation by the employer

[00:32:03] Speaker 05:
um, and the union as to how the election would be conducted.

[00:32:08] Speaker 05:
And so both sides can have poll watchers or whatever you call them.

[00:32:14] Speaker 05:
Uh, and they can complain to the regional director if they want something done differently, et cetera.

[00:32:20] Speaker 05:
So if you're going to overturn the election, there's a greater burden than simply to say, well, I didn't like the outcome.

[00:32:32] Speaker 05:
and I want to have a hearing.

[00:32:34] Speaker 02:
Yes, Your Honor.

[00:32:35] Speaker 05:
So as I understand what happened here is there were objections raised.

[00:32:40] Speaker 05:
Two of them were found by the regional director to warrant a hearing.

[00:32:43] Speaker 05:
Yes, Your Honor.

[00:32:44] Speaker 05:
So that gave the employer the opportunity to present the witnesses who apparently the employer had convinced the regional director could substantiate the objection.

[00:32:59] Speaker 02:
Yes, Your Honor.

[00:33:00] Speaker 05:
So the hearing is held.

[00:33:02] Speaker 05:
The supervisors testify.

[00:33:06] Speaker 05:
Who else testified at this hearing?

[00:33:08] Speaker 02:
There were six other people who testified, three of whom were not employees.

[00:33:12] Speaker 02:
during the election.

[00:33:14] Speaker 05:
There were these consultants, right?

[00:33:16] Speaker 02:
One was a companion of one of the patients who would walk the patient in and out of the center.

[00:33:23] Speaker 02:
Another was a director of nursing who had been terminated six months before the petition had been filed.

[00:33:28] Speaker 02:
And under board law, we only look at the critical period between when the petition is filed and the election.

[00:33:33] Speaker 02:
So it's unclear how someone who had been fired six months earlier would have knowledge.

[00:33:37] Speaker 02:
And the third, Ms.

[00:33:41] Speaker 02:
Frost, Catherine Frost, she had been terminated six months before the election petition had been filed, yet they questioned her at length on the record.

[00:33:47] Speaker 02:
Mr. Cartney testified he was an active employee, but he said he hadn't heard anything about anyone doing pro-union conduct, except he heard Ms.

[00:33:56] Speaker 02:
Lewis was the person to see if to get union cards didn't say who told him, didn't say when that was, except that, oh, it was before she was a supervisor.

[00:34:04] Speaker 02:
And then Ms.

[00:34:05] Speaker 02:
Ramey Sajimi testified that she'd never been coerced by any supervisor, let alone heard of any pro-union conduct.

[00:34:10] Speaker 02:
So those are the other six people they brought in, in addition to the four supervisors.

[00:34:15] Speaker 05:
So do you know if the interviews of the, how many employees did they interview?

[00:34:20] Speaker 05:
100 to 150?

[00:34:21] Speaker 05:
Yes, sure.

[00:34:22] Speaker 02:
That's what they asserted in their motion to reopen the record.

[00:34:25] Speaker 05:
To do what?

[00:34:27] Speaker 02:
The employer filed a motion to reopen the records three months later.

[00:34:29] Speaker 02:
That's right.

[00:34:30] Speaker 05:
Do you know if those interviews occurred before or after the presentation of objections was made to the regional director or the acting regional director?

[00:34:40] Speaker 02:
I believe, and may I get my other?

[00:34:44] Speaker 05:
That's all right.

[00:34:45] Speaker 02:
I believe they said, and you can correct if I'm wrong, that it was within the first couple days after the election results came out, so before.

[00:34:53] Speaker 02:
And one of them had testimony, the only testimony they found, or the only witness they asserted,

[00:34:59] Speaker 02:
could talk about Virgil de Dios' objectual conduct wasn't even one of his employees.

[00:35:04] Speaker 02:
It was a unit nurse.

[00:35:05] Speaker 02:
And she said, oh yeah, I did hear him maybe talking to four employees who I couldn't identify their last names about the union.

[00:35:14] Speaker 02:
She wasn't even his subordinate.

[00:35:16] Speaker 02:
And this is someone who had cooperated fully in a post-election interview, but the company said, well, we forgot to ask her about Hidalgo de Dios.

[00:35:23] Speaker 02:
And so we're asking her now, can we reopen the hearing three months later?

[00:35:26] Speaker 02:
And that's the reason the board said it wasn't newly discovered evidence, because through due diligence, they could have found that earlier.

[00:35:32] Speaker 02:
Your Honor, here, even in their first witness, Ms.

[00:35:38] Speaker 02:
Chase came in, didn't have any information about what had happened because she was not actually working at the facility.

[00:35:46] Speaker 02:
The employer said, you know what, Your Honor, I haven't met this witness.

[00:35:48] Speaker 02:
Can I please use a hostile witness questioning?

[00:35:51] Speaker 02:
They had an excuse for Ms.

[00:35:52] Speaker 02:
Sank too.

[00:35:53] Speaker 02:
After Ms.

[00:35:53] Speaker 02:
Sank testified, and they let her go through the entire Excelsior list on the stand, flipped through the 250th employee Excelsior list to see if it triggered her memory.

[00:36:02] Speaker 02:
She's the employer's administrator.

[00:36:03] Speaker 02:
She had no reason not to cooperate.

[00:36:05] Speaker 02:
At the end of her testimony, Mr. Mendelson said to the hearing officer, I told you we weren't prepared to go forward with this witness either.

[00:36:12] Speaker 02:
They have excuse after excuse here, and they've come to this court

[00:36:15] Speaker 02:
and trying to overturn this election, even though on Monday morning we gave them an opportunity to actually present direct evidence, and they failed to do it.

[00:36:24] Speaker 02:
So I see my time is up.

[00:36:25] Speaker 02:
They have not shown prejudice to overturn this ballot election.

[00:36:28] Speaker 02:
Are there any other questions?

[00:36:30] Speaker 04:
Thank you.

[00:36:31] Speaker 02:
Thank you.

[00:36:43] Speaker 03:
May it please the court Catherine Hansen for intervener 1199 SEIU United Health Care Workers East.

[00:36:49] Speaker 03:
The National Labor Relations Board has decided and it has been widely accepted by this court and every other one that I'm aware of that agency hearings cannot be used to fish

[00:37:02] Speaker 03:
for possible misconduct that could have upset an election result.

[00:37:06] Speaker 03:
And the employer in this case concedes that's exactly what they were doing.

[00:37:09] Speaker 03:
We couldn't speak to these employees.

[00:37:10] Speaker 03:
How do we know what they were going to say?

[00:37:11] Speaker 03:
We had to use the agency subpoena power to force them to come and under the power of the agency be interrogated on the stand just to see if maybe they have something to say that's relevant.

[00:37:23] Speaker 03:
And it is a very rational interpretation of the Act to say, that's not what post-election hearings or any other hearing for that matter are for.

[00:37:31] Speaker 03:
That's not what we're going to use our agency resources to allow an employer to fish for information.

[00:37:36] Speaker 07:
The employer here could not make the most... Did you agree that the employer, once the employer questioned, before the hearing questioned these employees, and they said, I don't want to talk about it, that the employer had no ability to press further?

[00:37:52] Speaker 03:
Not with the employees, yes.

[00:37:54] Speaker 07:
And that's a protection.

[00:37:56] Speaker 03:
It's, and I just want to clarify, Johnny Poultries, the National Labor Relations Act prevents interrogation of employees about protected activities or, you know, conduct after an election.

[00:38:05] Speaker 03:
Johnny Poultries creates an exception for the employer that allows them to actually interrogate employees, but it makes them provide certain, you know, protections.

[00:38:13] Speaker 03:
You know, I'm telling you this is voluntary and there will be no reprisals.

[00:38:17] Speaker 03:
So it actually allows the employer to even have these interrogations in the first place.

[00:38:21] Speaker 07:
I'm getting something confused.

[00:38:22] Speaker 07:
So if the employer gives

[00:38:24] Speaker 07:
these warnings and rights, statement of warnings and rights, then can the employer say, when they go, I don't want to talk about it, can the employer say,

[00:38:33] Speaker 07:
No, look, again, I'll repeat your protections and whatnot.

[00:38:36] Speaker 07:
But I really do need to have you answer this question.

[00:38:40] Speaker 03:
No.

[00:38:40] Speaker 03:
The employee's participation is voluntary.

[00:38:43] Speaker 03:
And what the employer would ask this court to decide is that, OK, well, what we mean by that is you can interrogate them privately.

[00:38:49] Speaker 03:
You can bring them to an agency hearing and interrogate them under the subpoena power of the board.

[00:38:53] Speaker 03:
And what this court has said is you can't fish for evidence.

[00:38:57] Speaker 03:
That's not what hearings are for.

[00:38:58] Speaker 05:
As to the 100 and 150

[00:39:03] Speaker 05:
employees who were interviewed, do we know anything about what they said or did not say in this record before the court?

[00:39:14] Speaker 03:
We know that none of them had any evidence of objectionable conduct that the employer could proffer.

[00:39:19] Speaker 03:
The employer could not make any proffer.

[00:39:21] Speaker 05:
I don't think you understand the point of my question.

[00:39:24] Speaker 05:
Judge Millett's question was premised on the assumption that the employees would not talk

[00:39:31] Speaker 05:
And I wanted to be clear as to whether there's anything in the record saying that.

[00:39:36] Speaker 05:
Maybe every employee talked and said, purest election process I've ever seen.

[00:39:42] Speaker 05:
I don't know.

[00:39:45] Speaker 05:
But do we know?

[00:39:46] Speaker 05:
And certainly the employer hasn't proffered anything.

[00:39:51] Speaker 05:
Indeed, he puts up John A. Poultry as this bar when it's not a bar.

[00:39:59] Speaker 03:
That's right.

[00:40:00] Speaker 03:
And the employer makes representations at the hearing, and this is in the record, that some of the employees did talk.

[00:40:05] Speaker 03:
And the only reasonable, I think, conclusion to draw from that is the employees who did talk, there's no breakdown of numbers, didn't have any evidence of objectionable conduct.

[00:40:14] Speaker 03:
And so the employer's solution was, well, then let's call the rest of them to the hearing and see if anyone has anything to say.

[00:40:20] Speaker 03:
and that the NLRB has rationally decided that that's not a proper use of agency resources for a number of reasons.

[00:40:30] Speaker 03:
The employer could not make the most basic proffer in this case.

[00:40:33] Speaker 03:
So discussions about whether or not the hearing officer made some heightened vetting requirement, I think is number one, not supported by the record.

[00:40:42] Speaker 05:
It's clear with- What about the hearing officer's direct evidence statements?

[00:40:48] Speaker 03:
I would point the court to, I think a reading of the record makes it very clear that the hearing officer said, tell me what these people are going to say.

[00:40:56] Speaker 03:
Do you have any reason?

[00:40:59] Speaker 03:
What is your reason for thinking these employees are going to have anything relevant to say?

[00:41:02] Speaker 03:
And as counsel said today, well, they work for Virgil de Dios.

[00:41:06] Speaker 03:
So maybe they know something.

[00:41:08] Speaker 03:
And the hearing officer said, I am not allowing, I will not allow that kind of testimony.

[00:41:13] Speaker 03:
And that's exactly what the board said in their decision.

[00:41:15] Speaker 03:
They said the hearing officer acted properly to shut down testimony that was clearly exploratory in nature and to prevent this from becoming a fishing expedition.

[00:41:24] Speaker 03:
There's numerous places in the record where the hearing officer says, why do you think they're going to have something to say?

[00:41:29] Speaker 03:
Give me anything that I can hang my hat on that they're going to have something relevant to say.

[00:41:33] Speaker 03:
So Jimmy was allowed to testify based on circumstantial and hearsay evidence.

[00:41:38] Speaker 03:
The employer said, we haven't spoken to this witness, but someone told us that they overheard this conversation.

[00:41:46] Speaker 03:
And the hearing officer allowed their testimony, completely hearsay testimony.

[00:41:53] Speaker 07:
hearing officer, my inclination is that there is nothing that Ms.

[00:41:57] Speaker 07:
Bezio, if I'm saying that correctly, is going to tell us that it's going to, there's no direct knowledge, there's no facts that she has.

[00:42:06] Speaker 07:
J320, what I'm saying is that if you don't have any knowledge, I mean, she does not have any factually based direct knowledge about the objections themselves.

[00:42:17] Speaker 07:
My response would be-

[00:42:19] Speaker 03:
My response would be that would be prejudicial if the hearing offer presented testimony.

[00:42:23] Speaker 03:
It could arguably be prejudicial if the hearing officer had presented testimony with lesser proffers.

[00:42:29] Speaker 03:
You know, if the employer said, look, I have circumstantial evidence, it's hearsay, but this is what I think this person's going to say.

[00:42:35] Speaker 03:
And the hearing officer said, nope, I need you to make a proffer of direct, specific, evidence-based testimony.

[00:42:41] Speaker 03:
The hearing officer, the employer, any proffer the employer made beyond, well, they work for Virgil de Dios, so maybe they have something to say.

[00:42:50] Speaker 03:
Any lesser proffer, the hearing officer allowed.

[00:42:53] Speaker 03:
There were 15 witnesses that the hearing officer was prepared to hear from, and anyone else for whom the employer could make the most basic proffer.

[00:43:01] Speaker 03:
So, you know, I have JA303.

[00:43:03] Speaker 03:
The attorney says he doesn't know what the employees are going to say.

[00:43:06] Speaker 03:
They believe because they're union supporters, they might have something to say.

[00:43:09] Speaker 03:
JA 309, the hearing officer asks, why do you think they have any knowledge?

[00:43:13] Speaker 03:
The employer says, because they're union supporters.

[00:43:16] Speaker 03:
JA 344 to 346, the hearing officer makes it very clear that he's not going to allow witnesses testimony for whom no proffer can be made.

[00:43:24] Speaker 03:
I think the record does support a finding that the hearing officer just needed a basic proffer, and I think Sejimi-

[00:43:33] Speaker 07:
about Line 7-8, that you do not know whether or not they have actually based first-hand knowledge.

[00:43:45] Speaker 07:
I mean, the difficulty is that maybe somewhere the hearing officer said one thing and somewhere the hearing officer said another, but an awful lot of times the hearing officer said, direct knowledge is what I want.

[00:43:58] Speaker 03:
And the employer never said, I don't have direct knowledge, but I have circumstantial hearsay knowledge.

[00:44:03] Speaker 03:
Never.

[00:44:03] Speaker 03:
They admitted, and they've admitted today, they didn't know what these witnesses were going to say.

[00:44:08] Speaker 03:
There's no prejudice if they were prevented from calling witnesses who

[00:44:13] Speaker 03:
just worked there, right?

[00:44:14] Speaker 03:
The employer has a burden to establish prejudice, and as this court said in Salem, it's only prejudicial if there's a reason to believe that relevant testimony was excluded, and here, truly, they wanted to call witnesses only.

[00:44:27] Speaker 07:
But in Salem, it was admitted to be cumulative.

[00:44:29] Speaker 07:
I've got more people gonna say the same thing.

[00:44:31] Speaker 07:
Here, it's, I haven't had anybody yet who worked for Virgil D'Eos who has been, I've been able to call to the stand.

[00:44:40] Speaker 03:
There's no reason they could not have called them as one of their 15 witnesses.

[00:44:45] Speaker 03:
But they admitted that they didn't have any reason to believe these employees were going to have any relevant testimony.

[00:44:51] Speaker 03:
They could have called any one of Virgil de Dios' employees if they could have made the most basic proffer.

[00:44:57] Speaker 03:
Someone told me that somebody heard this, someone overheard this.

[00:45:00] Speaker 03:
One of the ones that we did interview and who spoke to us, and in fact, in the record,

[00:45:04] Speaker 03:
They did speak to some of these additional, some of Virgil de Dios's witnesses.

[00:45:09] Speaker 03:
Some of them did talk.

[00:45:10] Speaker 03:
And all they needed to do was make the most basic proffer.

[00:45:15] Speaker 03:
And there is no case that I'm aware of in any court that suggests that requesting a proffer is an abuse of discretion, particularly under these circumstances when there had been 10 witnesses

[00:45:28] Speaker 03:
who had no evidence.

[00:45:30] Speaker 03:
It was very clear that this was a phishing expedition.

[00:45:34] Speaker 03:
And all the hearing officer did was say, tell me what they're going to say.

[00:45:37] Speaker 03:
And the fact that the employer concedes that it could not make the most basic proffer, I think settles this case.

[00:45:46] Speaker 03:
There's no prejudicial error here.

[00:45:48] Speaker 03:
They didn't know what these employees were going to say.

[00:45:50] Speaker 03:
And agency hearings cannot be used to dig around in the hopes that you're going to uncover something.

[00:45:58] Speaker 05:
Thank you.

[00:45:58] Speaker 03:
Thank you.

[00:46:01] Speaker 05:
Council for petition.

[00:46:11] Speaker 00:
Thank you.

[00:46:12] Speaker 00:
I'll be brief.

[00:46:13] Speaker 00:
I think one of the things that we've heard a lot from both the board and the union here is that they wanted to mandate how Woodcrest strategically conducted the hearing.

[00:46:23] Speaker 05:
That's not what we've heard.

[00:46:25] Speaker 00:
We've heard a lot about it.

[00:46:26] Speaker 05:
With all due respect, that's not what they said.

[00:46:28] Speaker 05:
You could have called any 15 witnesses you wanted.

[00:46:32] Speaker 00:
But what we wanted to do after having only sat through a day and a half of hearings, and it's only eight witnesses up to the lunch recess, not ten.

[00:46:39] Speaker 05:
But there were five more scheduled for Monday.

[00:46:41] Speaker 00:
There were, but what we had determined.

[00:46:44] Speaker 05:
And you walked out of the hearing.

[00:46:45] Speaker 00:
But what we had determined based upon the evidence that was currently before us was that we needed to seek the testimony of Mr. de Dios's, those six individuals who were selected.

[00:46:57] Speaker 00:
We weren't asking.

[00:46:58] Speaker 07:
The report says that one of those five employees for Monday was

[00:47:01] Speaker 07:
someone who worked for Virgil de Dios, is that correct?

[00:47:04] Speaker 00:
But it wasn't the testimony that we wanted to put on, Your Honor.

[00:47:06] Speaker 07:
But you didn't have an employee for Virgil de Dios that was going to testify on Monday.

[00:47:10] Speaker 07:
Not about Virgil de Dios?

[00:47:11] Speaker 00:
But it wasn't that it wasn't about Virgil de Dios, Your Honor.

[00:47:15] Speaker 00:
It was we had selected six specific individuals whom all we wanted the hearing officer to do was the ministerial task of issuing a subpoena and then decide whether or not that subpoena should be revoked.

[00:47:25] Speaker 07:
Did you have a basis for, did you have some basis for thinking those six

[00:47:33] Speaker 07:
18 employees?

[00:47:34] Speaker 00:
Well, Your Honor, that's a good question.

[00:47:38] Speaker 07:
And it's a yes or no answer.

[00:47:40] Speaker 00:
Well, we had a reasonable belief.

[00:47:42] Speaker 00:
We didn't know because we couldn't.

[00:47:44] Speaker 07:
But you told me the reason.

[00:47:45] Speaker 07:
When we had this conversation earlier, the only reason you gave me was that they worked for Virgo de Dios.

[00:47:50] Speaker 00:
Yeah, and that was the reasonable belief that we had, was that they would provide testimony about what Mr. de Dios actually did or did not say.

[00:48:00] Speaker 00:
But we were precluded from allowing to go down that path because the hearing officer required direct knowledge.

[00:48:07] Speaker 00:
It was a cash 22.

[00:48:08] Speaker 05:
So let me ask you, in your brief, you make representations as to what these witnesses would have said.

[00:48:15] Speaker 05:
What's your basis for making those statements?

[00:48:17] Speaker 00:
I don't think it's any different than what we said before.

[00:48:20] Speaker 05:
I think it's the reason of what we... Your client told the hearing officer he didn't know.

[00:48:25] Speaker 00:
Right, and I think... So how do you know?

[00:48:28] Speaker 00:
I think what the board tries to do in its brief in the union is misconstrue some of the... No, I'm focusing on your brief.

[00:48:33] Speaker 05:
Yeah, and it's... No, I think this is serious, counsel.

[00:48:37] Speaker 05:
I read your brief and I thought, well, all these witnesses were not heard from who had information

[00:48:47] Speaker 05:
That was relevant.

[00:48:49] Speaker 05:
And yet, when I got into the transcript, that's not what your client told the hearing officer.

[00:48:56] Speaker 05:
So one answer you might give me was, well, we put it in our pre-hearing statement that we gave to the regional director.

[00:49:05] Speaker 05:
But that was not your response earlier today.

[00:49:09] Speaker 05:
You still don't know what these witnesses would have testified, or at least you don't know that they would have supported

[00:49:16] Speaker 05:
the employers position.

[00:49:19] Speaker 05:
Do you?

[00:49:19] Speaker 00:
No, your honor.

[00:49:20] Speaker 00:
And we don't know what they would have testified to because it was a catch 22 that we were in.

[00:49:26] Speaker 00:
We couldn't.

[00:49:26] Speaker 07:
Before you go to the catch 22 to get this hearing, you made a submission to the regional director about supervisory misconduct, which

[00:49:44] Speaker 07:
Correct?

[00:49:45] Speaker 07:
Correct.

[00:49:46] Speaker 07:
And then, as I've now learned, as I'm learning all these processes.

[00:49:52] Speaker 07:
Actually, no, you don't mention him by name.

[00:49:56] Speaker 07:
But that underlying evidence is not something that's in the record that we have.

[00:50:04] Speaker 07:
But you know whom you identified to the regional director as the people who would have supported

[00:50:19] Speaker 07:
Did you call the people that you pointed out to the regional director?

[00:50:23] Speaker 07:
Did you call them during this first day and a half?

[00:50:28] Speaker 00:
Well, no, we started with the supervisors and some former administrators, Your Honor.

[00:50:32] Speaker 05:
Excuse me, go ahead.

[00:50:34] Speaker 07:
Were any of those that were on the submission made to the regional director either among the six that you wanted subpoenaed or among the five that were coming Monday?

[00:50:44] Speaker 00:
I don't believe that, Your Honor, any of those were the six that we had subpoenaed.

[00:50:47] Speaker 00:
We decided to subpoena those six only after the testimony, up until that second day before the lunch break.

[00:50:55] Speaker 07:
What about the five that were coming in on Monday?

[00:50:59] Speaker 00:
The five that were coming in on Monday were different witnesses, but the litigation strategy

[00:51:05] Speaker 00:
What Woodcrest decided to do was simply shift based upon what Mr. De Dios' testimony was.

[00:51:11] Speaker 00:
That's why they wanted to get the six subpoenas, which was to simply hear what his subordinates would testify to because they had exercised their Johnny Poulcher rights.

[00:51:20] Speaker 05:
We couldn't talk to them.

[00:51:21] Speaker 05:
Do we know that

[00:51:23] Speaker 05:
Does the record indicate whether in the pre-hearing statement to the regional director, the employer actually identified by name witnesses, or did the pre-hearing statement read very much like the blue brief?

[00:51:40] Speaker 00:
I don't believe that's in the record, Your Honor.

[00:51:43] Speaker 05:
All right.

[00:51:43] Speaker 05:
So we don't know.

[00:51:45] Speaker 05:
No.

[00:51:45] Speaker 05:
And maybe all the regional director had was

[00:51:49] Speaker 05:
what was said in the blue brief.

[00:51:51] Speaker 05:
We have these witnesses who will testify, these four supervisors, unlawfully interfered with the laboratory conditions for the election.

[00:52:02] Speaker 05:
And he took, the regional director took that on good faith and said, let's have a hearing.

[00:52:09] Speaker 05:
Let's give the employer an opportunity.

[00:52:11] Speaker 05:
Bring your witnesses in.

[00:52:13] Speaker 00:
And I think we were less than a day and a half into that hearing.

[00:52:16] Speaker 05:
We don't think this was a... How long did you think the hearing officer ought to sit there and listen to witnesses who had no direct knowledge to support your allegations?

[00:52:25] Speaker 00:
Well, Your Honor... I'm just asking.

[00:52:27] Speaker 05:
You keep saying a day and a half.

[00:52:29] Speaker 00:
You know, I think the hearing is typically a couple of days.

[00:52:31] Speaker 00:
What we had determined was that we needed... How do you know that, Counsel?

[00:52:36] Speaker 05:
It might only be an hour.

[00:52:38] Speaker 00:
Yeah, no, and I don't think there's any set... No, but that's my point.

[00:52:41] Speaker 05:
Right.

[00:52:41] Speaker 05:
An hour and a half, a day and a half, it's not as though you were cut off at the pass.

[00:52:46] Speaker 00:
But it's not as if what Woodcrest was doing was a fishing expedition.

[00:52:50] Speaker 00:
We had six targeted... How do we know that?

[00:52:53] Speaker 00:
I'm sorry?

[00:52:54] Speaker 05:
How do we know that?

[00:52:55] Speaker 00:
Because we had six targeted subpoenas that we wanted to issue.

[00:52:58] Speaker 05:
They were... But you didn't know who... You just said to Judge Millett, you didn't know what they were going to testify for.

[00:53:02] Speaker 00:
We said on the record, and it's in the record, that we... How'd you pick those six?

[00:53:06] Speaker 00:
We picked those six as being the individuals who we thought had the most knowledge because they were Mr. DiDio's subordinates.

[00:53:12] Speaker 07:
But you had 24 subordinates.

[00:53:13] Speaker 07:
How did you pick those six out of the 24?

[00:53:15] Speaker 00:
I think those six were specifically picked, Your Honor.

[00:53:18] Speaker 00:
I don't think it's necessarily.

[00:53:19] Speaker 00:
It's not in the record with any great details, too.

[00:53:26] Speaker 07:
JA6, when the regional director says you can have a hearing on the supervisory coercion, says the employer provided the names

[00:53:34] Speaker 07:
of several supervisory and bargaining unit employees whom it contends will testify that environmental director, Israel Marigold Diaz, actually supported the union and did these things that we said he shouldn't have done.

[00:53:48] Speaker 07:
So you had employees, his supervisees, that you thought at the time you made this representation of the regional director would testify

[00:54:02] Speaker 07:
But now you're telling me that you didn't call any of those in the first day and a half.

[00:54:07] Speaker 07:
You didn't subpoena any of those on this list of six.

[00:54:12] Speaker 07:
And none of those were the five that were supposed to come in on Monday.

[00:54:14] Speaker 07:
Is that right?

[00:54:17] Speaker 00:
I believe that's correct, Your Honor.

[00:54:19] Speaker 00:
I mean, what we had done was start with the supervisors.

[00:54:23] Speaker 00:
That's what led us to the fact on that second day before lunch.

[00:54:27] Speaker 07:
I got your strategy with starting the supervisors.

[00:54:28] Speaker 07:
That was entirely your strategic call.

[00:54:30] Speaker 07:
The question is when you were ready for employees to testify, the ones you told the regional director you had were not on the list of sex that you wanted subpoenas for.

[00:54:45] Speaker 07:
Well, and I think... And your answer was yes, that's correct.

[00:54:47] Speaker 00:
Yeah, I believe that's correct, Your Honor.

[00:54:48] Speaker 00:
Maybe one of those witnesses of the five, but we didn't put those witnesses forward on Monday.

[00:54:53] Speaker 00:
We stopped the hearing because we weren't able to then call based upon how the hearing had been conducted up to that point, now these six individuals whom we want to speak to.

[00:55:01] Speaker 05:
No, but in the typical case, the employer would have said...

[00:55:04] Speaker 05:
Mr. Hearing Officer, I have Mr. Jones scheduled for Monday.

[00:55:09] Speaker 05:
He will provide the direct evidence you want, or if he won't, he will provide circumstantial evidence that we think demonstrates the case we're making.

[00:55:22] Speaker 05:
And that was never said.

[00:55:24] Speaker 00:
The thing that we say, Your Honor, is that... You just walked out.

[00:55:29] Speaker 05:
We're not participating anymore.

[00:55:30] Speaker 00:
Well, the thing that we said, Your Honor, was that we had a reasonable belief that these six individuals would have the testimony.

[00:55:36] Speaker 00:
We didn't have direct knowledge.

[00:55:38] Speaker 00:
We said we didn't have direct knowledge because we couldn't talk to those individuals.

[00:55:42] Speaker 05:
But we did have a- You could talk to them, Counsel.

[00:55:44] Speaker 05:
You keep making that representation.

[00:55:46] Speaker 05:
You made in your brief that you interviewed 100 to 150 employees.

[00:55:52] Speaker 05:
And these individuals- And as far as I can tell, you interviewed them.

[00:55:59] Speaker 05:
So you knew what they were going to say.

[00:56:01] Speaker 00:
But the record is devoid of whether or not which individuals elected to, elected their Johnny Coltrane rights, right?

[00:56:08] Speaker 00:
Not to speak with the employer.

[00:56:10] Speaker 05:
But you could have made all these proffers to the hearing officer.

[00:56:13] Speaker 05:
And you didn't do it.

[00:56:14] Speaker 05:
That's all I'm getting at.

[00:56:15] Speaker 05:
I mean, if you were cut off prematurely, why not tell the hearing officer so they can open the hearing and keep it going?

[00:56:25] Speaker 05:
But your client came in Monday morning and said, we're withdrawing from the hearing.

[00:56:32] Speaker 00:
Well, I think that was a function of what happened the day before, Your Honor, during the lunch break.

[00:56:37] Speaker 05:
But you know to counsel, you're not going to walk, abandon your client if you've got some evidence that can support the client's position.

[00:56:44] Speaker 00:
Well, it was because, Your Honor, we couldn't put the evidence forward that we felt we needed to put forward to... What evidence?

[00:56:50] Speaker 05:
These people work for one of the supervisors.

[00:56:53] Speaker 00:
Yeah, and I think that what we needed was the individuals whom we wanted the subpoenas for.

[00:56:59] Speaker 00:
Okay.

[00:56:59] Speaker 05:
Anything further?

[00:57:01] Speaker 07:
Judge Brown, any questions?

[00:57:10] Speaker 07:
Do you mean by that you just asked them and they asserted Johnny Poultry or you were actually able to talk to those folks?

[00:57:16] Speaker 00:
Yeah, the record doesn't say what number of individuals actually spoke with the employer as opposed to those who exercised their Johnny Poultry rights.

[00:57:24] Speaker 00:
If any.

[00:57:25] Speaker 05:
But what we do know... Yeah, that's the interesting thing to me.

[00:57:28] Speaker 00:
But what we do know is that we had started to ask

[00:57:33] Speaker 00:
bargaining union employees, and they were, in fact, exercising their Johnny Pulcher rights.

[00:57:37] Speaker 00:
I mean, we mentioned.

[00:57:37] Speaker 05:
But what I'm getting at, if I work for an employer and my supervisor, I'm being asked questions about my supervisor, I'm probably not going to want to say bad things about my supervisor, since I have to work for him or her.

[00:57:53] Speaker 05:
But on the other hand, I want to get promoted within the company.

[00:57:57] Speaker 05:
So if I know something about the supervisor, I'm going to speak up.

[00:58:04] Speaker 05:
get on the good side of the company.

[00:58:08] Speaker 05:
So this notion that there's an automatic refusal to speak, or if you speak, never to say anything against your supervisor, it seems to me, the cases just don't support that.

[00:58:20] Speaker 05:
Even Medicare.

[00:58:24] Speaker 05:
Anything further?

[00:58:25] Speaker 07:
Did you challenge the direct evidence requirement in your briefing

[00:58:35] Speaker 07:
proper circumstantial evidence.

[00:58:38] Speaker 07:
You didn't have either circumstantial or direct.

[00:58:40] Speaker 00:
No, what we said was the direct evidence was a higher burden that the hearing officer placed upon us.

[00:58:45] Speaker 00:
We reasonably believe that if we were offered the opportunity to question those individuals, that we would have had testimony that would have demonstrated that there was coercion.

[00:58:56] Speaker 07:
Did you say circumstantial, or were you?

[00:58:59] Speaker 07:
I guess I hadn't read in your briefs, and if I've missed it, I hadn't read it.

[00:59:03] Speaker 07:
That was error, and then the test should have just been whether it was circumstantial.

[00:59:08] Speaker 00:
No, I don't think you missed that, Your Honor.

[00:59:09] Speaker 00:
I think it was the fact that the heightened vetting standard was the error.

[00:59:15] Speaker 00:
Thank you.

[00:59:16] Speaker 05:
We'll take the case under advisement.