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Case number 14-1135 at L, Consolidated Communications Inc.

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doing business as LA Consolidated Telephone Company Petitioner versus National Labor Relations Board.

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Mr. Dunbacker for the petitioner, Mr. Heller for the respondent, and Mr. Grant for the intervener.

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Thank you, your honor.

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I'm Robert Dumbacher representing the Appellant Consulting Communications.

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The board brought this case under a striker misconduct theory.

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The board's order reflects a fundamental misunderstanding of this test and cannot stand for the following reasons.

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Initially, the board committed an error when it found that the blocking and preventing of a replacement employee from passing while driving on a public highway miles away from any striker picket line constituted strike activity.

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This was not strike activity and should not have been analyzed as such.

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Further, the board utterly failed to follow the established strike or misconduct test that applies, or the burden shifting test that applies to strike or misconduct cases.

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Under this test, where the board finds that the company has an honest belief of misconduct, that misconduct did occur, the board must then determine whether the general counsel demonstrated that the conduct was not sufficiently serious to forfeit protection of the act.

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That inquiry is defined by the board's test in clear pine moldings, which provides that the misconduct is sufficiently serious to forfeit protection of the act where it reasonably tends to coerce and intimidate employees in the exercise of their rights.

[00:02:27] Speaker 06:
Can I jump ahead to the failure to bargain issue?

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Why aren't the facts that were found that you had Weaver's position that was eliminated, and they didn't bargain over that before they eliminated it sufficient to support that aspect of the board's decision?

[00:02:44] Speaker 01:
Your Honor, the Board, in our view, never provided the analysis, never analyzed and provided... What more do you need?

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There was a position, that's not disputed.

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The position was eliminated, that's not disputed.

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The elimination was a bargain over, that's not disputed.

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What other fact do you need to find a violation?

[00:03:02] Speaker 01:
Well, Your Honor, we asserted in the proceedings that the position was not eliminated, that there were office specialist positions, that those positions continue to remain in effect, and there was no... There were other ones, but that Weaver's was eliminated.

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She held one of the eight office specialist positions.

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Did you dispute that that one was eliminated?

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I don't dispute that there were eight and then moved to seven.

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I don't dispute that.

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So her position was eliminated and it wasn't bargained over.

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I guess I'm still not understanding what other fact is needed.

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Again, Your Honor, we assert that the Office Special's position was not eliminated.

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Did you assert that in your brief here?

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Your Honor, we did assert, I believe that.

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I didn't read.

[00:03:45] Speaker 04:
Well, just show me.

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I believe it was in the reply brief, Your Honor, yes.

[00:03:48] Speaker 04:
Oh, well, that's a little late.

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Your Honor, we chose, frankly, not to spend a lot of time then in our briefing.

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But you concede then, just to follow up on Judge Malik's question, that if you didn't challenge the board's finding that the position was eliminated, that you lose on this issue.

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No, Your Honor, we don't believe that the Board provided reasoned analysis as to why it found a violation.

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That's our view on that point.

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As to the employee discipline, the Board utterly failed to follow the established burden-shifting test that applies to strike or misconduct cases, as I stated.

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Here, the Board, as I stated, the Board has the general, I'm sorry, the general counsel has the burden to approve.

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to show that the misconduct was not sufficiently serious to lose protection of the act.

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Is this fellow Troy Connolly, is that your strongest case?

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The Troy Connolly incident?

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Frankly, Your Honor, the board didn't apply the proper standard for any of the individuals, so we think they're all equally strong.

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And let me explain.

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As to Mr. Connolly, the general counsel resolved a burden of, I'm sorry, the board resolved

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a burden of proof against what consolidated on an issue the general counsel had the burden on.

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Second, although it found that each of the discipline employees engaged in misconduct, it failed to answer the ultimate question under clear pine moldings for each of those misconduct, which is whether or not that misconduct reasonably tended to coerce.

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Take the Connolly case in Hudson.

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The ALJ said, I agree with you that he stated the principal wrong here, but he said,

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quote that Hudson engaged in no illegal or dangerous conduct.

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that would violate consolidated workplace violence policy.

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That's what he held.

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What more did he need to do?

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That's not the test.

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The test is whether or not Ms.

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Hudson's conduct reasonably tended to coerce or intimidate under certain circumstances.

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But if he didn't engage in any illegal or dangerous conduct that violated the company's policy, what else is left?

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Isn't that the end of it?

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No, Your Honor.

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The board is held and this court is held.

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The judge found that Ms.

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Hudson blocked Mr. Connolly, despite Ms.

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Hudson's denials.

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At that point, the question is, did that misconduct, the blocking, reasonably tend to coerce or intimidate?

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That question was never actually answered.

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The fact that there's violence, that the board found that, in its opinion, there was no violence, that's not the question.

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But didn't the company discipline these people because they violated the company's policy against violence?

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Wasn't that the basis for the discipline?

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Actually, as to Ms.

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Hudson, they cited both the company's policy off the work premises policy and the company's violence policy.

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So they cited both.

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And that policy is that the former is very broad and implicates public safety.

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But weren't they, I'm not sure what you mean by off-site.

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Weren't there several sites, this company had several facilities, correct?

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Yes, Your Honor.

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And didn't the testimony say that Hudson and whoever was with her, they were following him to find out whether they needed to engage in picketing at another site, right?

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That's what they initially stated they did.

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And that's what the ALJ found.

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Initially, however, at the time, ultimately what the ALJ found was that Ms.

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Hudson inexplicably, or as he termed peculiarly, drove in front of Mr. Conley, blocked his progress.

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Ms.

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Hudson specifically testified at Joint Appendix 518 that when she passed Mr. Conley, prior to engaging in the blocking that the judge found occurred, that she abandoned it.

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She had no further intent to follow Mr. Conley.

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At that point, she was no longer, to the extent she was engaged in any investigating opportunities for ambulatory picketing prior to that, at that point, she no longer was engaged in the course of any protected activity.

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I was curious about one thing, was that you have three incidents within one hour where Ms.

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Hudson's car

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ends up in the front of people, workers or management, and independent allegations from all three within that same hour that she was locking them in.

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Did the ALJ grapple with or did you argue that in analyzing her conduct, the sort

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fact that there was this pattern within a single hour of three incidents of very similar behavior, albeit in different locations, involving independent people who presumably didn't talk to each other in the meantime, and all of which had witnesses, should we look at collectively in evaluating her credibility and her role for behavior?

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I believe we did argue that the circumstances dictated that Miss Hudson, or suggested that Miss Hudson had an intent to engage in this type of activity throughout the day.

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We did argue that.

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Her car just keeps showing up.

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Exactly.

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Within one hour.

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Exactly.

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Yeah.

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As to three different people.

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Agreed.

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And the ALJ didn't address that at all?

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No, Your Honor.

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The ALJ didn't address many of the circumstances in this case.

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Does that?

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affect the analysis of the nature of her conduct or misconduct, or does that affect her credibility?

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I think it affects both.

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I'm sorry.

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It affects, it can affect the credibility, but I think as to her conduct, it doesn't affect, I think, the analysis as to whether or not she was engaged in the course of protected activity when she chose to block Mr. Conley after she testified that she had no intent to follow him.

[00:09:29] Speaker 06:
other cases all in line with all of that following someone to another or another type of potential people didn't follow the person i think i can even talk about following insight that they were right in front of him exactly what they're doing about it

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I'm not aware of any circumstances where an employee claims they're following a replacement employee to travel to a picket site.

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suddenly abandon that purpose for whatever reason, they admit that they abandoned that purpose, they engage in blocking, and then they inexplicably turn around and go back to the corporate site.

[00:10:19] Speaker 04:
So your argument is that you want us to set aside these ALJ findings as either not supported by substantial evidence or question the credibility.

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right?

[00:10:31] Speaker 01:
No, your honor.

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No, no, your honor.

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I'm the reason what I'm here to talk about today is he failure to apply to standard.

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The question.

[00:10:38] Speaker 04:
That's not what you just sounded like.

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Okay.

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Okay.

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You're like you were telling us that his findings weren't supported by substantial evidence and that you question

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his credibility findings, and there's a lot of that in your brief.

[00:10:50] Speaker 01:
Yeah, sure.

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We made some of those arguments, but I think at the core of this case is a fundamental misunderstanding of a striker misconduct test.

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This judge found misconduct occurred by each of the three discipline employees.

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He never asked, and the board never changed that ruling, never asked whether or not that misconduct reasonably tended to coerce or intimidate under certain circumstances.

[00:11:10] Speaker 06:
Isn't that your focus here at argument, but you're not abandoning

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your argument about lack of even handed missing.

[00:11:16] Speaker 01:
We're not abandoning that.

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We're not abandoning that.

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But this, this, this judge's ruling was permeated with a failure to ask that ultimate question or clarify mornings.

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You will not find that determination of whether the conduct reasonably tended to court, coerce or intimidate under the circumstances

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You will not find analysis of that anywhere in the decision.

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In fact, he focused on issues such as, did the violence occur?

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What was the violent in his view?

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Hudson's disciplinary history.

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Hudson's tenure at the company.

[00:11:47] Speaker 05:
One problem with that focus, it seems to me, is that the board doesn't adopt the ALJ's findings wholesale.

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The board actually finds that a lot of this misconduct did not occur.

[00:12:04] Speaker 01:
Your honor, what the ALJ found, what the board adopted, was that there was misconduct.

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And again, this is assuming that the Conley incident was strike activity, which we strongly dispute.

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But they found that Ms.

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Hudson engaged in impeding.

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They found that Mr. Williamson engaged in a crotch grabbing incident.

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They found that Mr. Maxwell.

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My understanding is there were several incidents.

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They ended up finding that two of them occurred.

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The rest they decided had not occurred at all.

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And so I guess part of our question is, if the board doesn't adopt the findings of the ALJ,

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then are they also have, you know, in other words, if they find it didn't occur, then obviously applying the wrong standard also isn't implicated, correct?

[00:13:06] Speaker 01:
No, Your Honor, because here the board did find that misconduct occurred.

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They didn't find that all misconduct occurred.

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In that case, the board has applied, and the circuit courts have as well.

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They have looked at the misconduct that did occur and asked whether or not that misconduct reasonably tended to coerce or intimidate.

[00:13:22] Speaker 05:
OK, so but where does, and this is just a question, where does the board's consideration of whether or not the conduct was egregious enough to justify the discipline, where does that come in?

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That comes in after they find that the misconduct occurred.

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And we studied the case Roto-Rooter from the board case that applies that principle.

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They found that, I think it was two or three of the incidents of the five that the employee was informed on.

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They looked at that question.

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Two cases cited by the board did a similar analysis, PRC recording, and hotel rowing.

[00:13:56] Speaker 05:
I guess what I'm trying to understand is the board dismisses most of this.

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It finds that two of these incidents perhaps did occur.

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And then it says, but they weren't bad enough to justify the discipline that the company imposed.

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So once they find that it wasn't bad enough, where do they apply the standard about whether it was coercive?

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In other words,

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If they're saying it's not egregious, then perhaps that means it also couldn't have risen to the level where it would coerce or intimidate.

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Or do they have to make that finding separately?

[00:14:35] Speaker 01:
So once they found that the misconduct occurred, whatever misconduct they found occurred, they need to ask, did that conduct reasonably tend to coerce or intimidate?

[00:14:45] Speaker 04:
Well, didn't take the one case or one of the two cases where they did find that it occurred.

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You mentioned it already, the crotch grabbing case.

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Didn't they go right ahead and then explain that?

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No.

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They said, well, they said, we don't have any cases that support losing the axe protection in cases like here.

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And then they cite this arrow-casting case of their own, which says that use of obscene language and gestures, standing alone, without threat of violence, does not rise to the level.

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where the employee loses the act's protection.

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What more are they supposed to say?

[00:15:27] Speaker 01:
Your Honor, in that case, in the Williams and Crossgrab incident, the operative language for the reason the board found that that consolidated violating the act was that

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the right line test.

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He concluded that because respondent consolidated did not prove that it would have suspended Mr. Williamson solely on the basis of the crotch grabbing incident, that it violated the act.

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That's the clear language on board page 13.

[00:15:55] Speaker 01:
The above inquiry that you cited isn't the appropriate inquiry.

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Again, the question is, did it reasonably tend to coerce or intimidate?

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He didn't apply that here.

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He certainly didn't apply that to the Conley incident, assuming that the strike was conduct.

[00:16:06] Speaker 04:
The board cites cases which says that absent something more obscene gestures don't intimidate.

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Isn't that the board's law?

[00:16:16] Speaker 04:
I'm sorry, Your Honor?

[00:16:18] Speaker 04:
Isn't that what the board's case law says?

[00:16:20] Speaker 01:
Your honor, each case, what the board's case law says in Clarifying Moldings and Universal Trust is that each case needs to be analyzed under the circumstances.

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Here, we had testimony about Williamson crowding cars.

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We had a number of circumstances.

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They never asked that question.

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We never got an answer to the question, were they truly, for any reason, we tended to coordinate our circumstances.

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And then finally, I'll just add that Mr. Maxwell, it was found that Mr. Maxwell intimidated.

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Okay, thank you.

[00:16:46] Speaker 04:
Okay, I'll hear from the board.

[00:17:16] Speaker 03:
Good morning.

[00:17:16] Speaker 03:
May it please the court, Joel Heller for the National Labor Relations Board.

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As Judge Brown was just talking, the board actually found that most of the alleged misconduct did not in fact occur.

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And once the board has found that the alleged misconduct did not in fact occur,

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There is no subsequent egregiousness analysis because the misconduct did not occur.

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So it's only when the board finds that the alleged misconduct did occur that it engages in the clear pine moldings analysis, whether the conduct was reasonably tended to coerce or intimidate.

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So as to Maxwell, as to Hudson, and as to the Williamson incident with the mirror, the board found that none of those alleged misconducts

[00:17:58] Speaker 03:
Excuse me, none of that alleged misconduct occurred.

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As to the Williamson incident with the crotch grabbing, the board then did engage in the clarifying moldings analysis.

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And as Judge Tatel was mentioning, it is the board's law that a single obscene gesture by itself is not sufficient to cause an employee to lose the protection of the act.

[00:18:22] Speaker 03:
It is.

[00:18:23] Speaker 06:
Was it a single obscene gesture?

[00:18:25] Speaker 06:
What about a single?

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obscene, sexually demeaning gesture targeted at somebody of the opposite sex.

[00:18:33] Speaker 06:
Have you heard that before?

[00:18:35] Speaker 03:
Again, if you look at the cases cited in our brief, Gloversville in Bossing, Waynstead Cadillac, there were some obscene, sexually themed gestures that the board found did not cause... It's just targeting when a male employee, because he was looking right at her, targets a female employee for sexually demeaning behavior like that.

[00:18:57] Speaker 06:
What does that have to do with legitimate communications about workplace grievances?

[00:19:04] Speaker 06:
Is that supposed to persuade her not to support the strike?

[00:19:09] Speaker 03:
I don't think so.

[00:19:10] Speaker 03:
Well, this is in the context of a strike, and there is more leeway given.

[00:19:14] Speaker 03:
This is not, it's a different standard for evaluating conduct in the context of a strike than it is for conduct in the workplace.

[00:19:20] Speaker 06:
Well, I get that with when people are heated, there's heated exchange, people are upset, angry, there's enormous amounts of tension, but this strikes me as a different category of behavior.

[00:19:29] Speaker 06:
Well, it is... He was facing her from across the parking lot.

[00:19:38] Speaker 03:
She had just crossed a picket line.

[00:19:40] Speaker 03:
He was certainly expressing his dissatisfaction.

[00:19:42] Speaker 03:
He yelled out scab at the same time, which is of course related to the strike context.

[00:19:50] Speaker 03:
This is not, and as the LJ makes clear, this is not conduct that is

[00:19:55] Speaker 03:
We're not meant to encourage this conduct.

[00:19:59] Speaker 03:
But it's not enough to meet the standard of whether reasonably attentive to coerce or intimidate.

[00:20:04] Speaker 06:
If you look at, by contrast, universal trust, which consolidated sites, that's- What did he mean by it, if he didn't mean to intimidate her for crossing the line?

[00:20:13] Speaker 03:
He meant, I don't know what he was thinking.

[00:20:15] Speaker 03:
I imagine he was meaning to express his dissatisfaction with that she was crossing a picket line and going to work.

[00:20:23] Speaker 06:
In determining whether it was coercive or intimidating, do we look at it from the viewpoint of the perpetrator or the person who's on the receiving end of the message?

[00:20:33] Speaker 03:
Well, it's an objective standard.

[00:20:34] Speaker 06:
Objective from which point?

[00:20:36] Speaker 06:
A reasonable perpetrator or a reasonable audience member?

[00:20:41] Speaker 03:
I believe it's with a reasonably

[00:20:43] Speaker 03:
A reasonable employee who is the recipient, I suppose, of the gesture, would it tend to coerce or intimidate a reasonable employee in an objective standard there?

[00:20:58] Speaker 05:
Did the board make the same finding with respect to the Connolly incident?

[00:21:04] Speaker 05:
Because I think they did agree that that probably happened.

[00:21:08] Speaker 03:
The board engaged in the Clare Pine Moulding's egregiousness analysis as to the Connolly incident, assuming that it happened.

[00:21:15] Speaker 03:
There was no finding, express finding one way or the other, as to whether it happened as alleged.

[00:21:19] Speaker 03:
But I think if you look at the board's factual findings of what actually happened, and you compare that to other cases in which there are strikers and non-strikers driving, it's clear on what side of the line this conduct falls.

[00:21:33] Speaker 03:
Again, it's a question of factual findings and credibility determinations at this point, and the board found that Hudson was driving in front of them for approximately one mile and one minute.

[00:21:45] Speaker 03:
Hudson testified without contradiction that she was driving the speed limit the entire time.

[00:21:50] Speaker 03:
And both Kami and Diggs, who was his passenger, testified that there was not a risk of an accident.

[00:21:55] Speaker 03:
There were not a risk of hitting her.

[00:21:58] Speaker 03:
So I don't think that driving the legally mandated speed limit can be characterized as extremely dangerous vehicular activity, which was the stated basis for Hudson's discharge.

[00:22:07] Speaker 05:
Does it have to be an extremely dangerous vehicular activity?

[00:22:10] Speaker 05:
And after all, this involves more than just the strikers and the people that they're upset with.

[00:22:16] Speaker 05:
The public uses the highway.

[00:22:17] Speaker 03:
Sure, that was the stated basis for Hudson's discharge.

[00:22:22] Speaker 03:
So if you're looking as to whether the misconduct occurred, then you look at what she was actually alleged was doing.

[00:22:30] Speaker 03:
And I also, so no, if you're looking in the egregiousness, sorry.

[00:22:34] Speaker 05:
Well, there's something about this that I don't understand because the board is looking at what did the company say was the basis for the action that they took.

[00:22:45] Speaker 05:
But what council says is the real standard here is did the action that occurred have the effect of coercing or could it have had the effect of coercing and intimidating employees who chose not to strike?

[00:23:01] Speaker 03:
Well, again, Consolidate is blurring the line here.

[00:23:03] Speaker 03:
There's the question of whether the alleged misconduct occurred.

[00:23:06] Speaker 03:
And that's where you look at what Consolidate actually listed as the basis for the discharge.

[00:23:11] Speaker 03:
It's only if you determine that it did, in fact, occur that you go to that next question, the clear pine molding standard.

[00:23:18] Speaker 03:
And at that point, it's the Bourne standard, and it's not necessarily what

[00:23:21] Speaker 05:
So this is helpful because I'm assuming that what the board is saying here is not that she was not driving this way and that they were not blocking him in, but that they found that not to be workplace violence and therefore the incident did not occur.

[00:23:40] Speaker 05:
Am I understanding that correctly?

[00:23:42] Speaker 03:
It did not occur as alleged.

[00:23:43] Speaker 03:
Yes, the board found that

[00:23:45] Speaker 03:
that Hudson was driving in front of Connolly, that is not a disputed fact.

[00:23:50] Speaker 03:
But you look at the how she was driving, she was driving, the speed limit that was only happened for a relatively short period, and it's those questions that show

[00:24:00] Speaker 03:
that it was not this extremely dangerous activity as alleged.

[00:24:04] Speaker 06:
Well, it wasn't just blocking in.

[00:24:06] Speaker 06:
When they pulled over, let three cars go by, and then jumped back out as soon as he tried to pass.

[00:24:11] Speaker 06:
We've seen this stuff on roads.

[00:24:12] Speaker 06:
This can be very dangerous.

[00:24:14] Speaker 06:
The fact that he was driving carefully enough that he didn't almost run into the rear end of her doesn't mean that her behavior was not reckless.

[00:24:21] Speaker 03:
What if I may answer?

[00:24:25] Speaker 03:
She pulled in front of Connolly after the other cars passed, but the board found that she did not endanger him.

[00:24:33] Speaker 03:
She was, according to Diggs's own testimony, the passenger in the car in Connolly's truck.

[00:24:39] Speaker 04:
But didn't the board go on on that one and say that even if all this happened, it wasn't sufficiently egregious to justify discipline?

[00:24:45] Speaker 03:
Yes, in the Connolly incident.

[00:24:47] Speaker 03:
It is fine, assuming.

[00:24:50] Speaker 03:
And of course, for the board to state... What do we do with the fact that the board

[00:24:54] Speaker 06:
understandably, chose not to rely on the ALJ's, the aspect of its credibility determination that because he was a manager, he necessarily would have been angry about this.

[00:25:07] Speaker 03:
Right, the board did not rely on that.

[00:25:09] Speaker 06:
The board did not rely on that.

[00:25:10] Speaker 06:
But then, what are we left with?

[00:25:12] Speaker 06:
We're left with the ALJ relying very heavily, in his own words, very significantly, finding very persuasive of the fact that he didn't

[00:25:22] Speaker 06:
call the police.

[00:25:25] Speaker 06:
What has that got to do with this?

[00:25:27] Speaker 03:
It goes to credibility in this instance, because Connolly has alleged that he witnessed very dangerous driving on the highway, what could be illegal activity.

[00:25:37] Speaker 03:
And it undermines someone's credibility who alleged that they saw unlawful activity, that they did not report that unlawful activity to the police.

[00:25:44] Speaker 06:
But you didn't do that with Mr. Maxwell when he says he was hit twice by a car.

[00:25:49] Speaker 06:
I think he would call the police too.

[00:25:51] Speaker 03:
It's a different scenario because the car that hit Maxwell was inching forward at a very slow speed.

[00:25:57] Speaker 06:
Oh, and they didn't have a real accident.

[00:25:58] Speaker 06:
And so, I mean, I don't understand how they treat this as an incredibly important factor.

[00:26:05] Speaker 03:
It is certainly was treated as an important factor.

[00:26:07] Speaker 03:
It's not the only factor.

[00:26:08] Speaker 06:
No, well, you know, you've gotten rid of the business manager thing.

[00:26:11] Speaker 06:
That's out.

[00:26:12] Speaker 06:
Right, but you also look at... And then they've not even handed application of the failure to call police.

[00:26:16] Speaker 06:
The ALJ keeps relying on the fact that the company told him to call police, but they didn't tell him to call the police.

[00:26:20] Speaker 03:
Well, they did call, I mean, it is, if you look at the Huffmaster guidelines at JA 60 through 62, which were provided for all of the non-strikers.

[00:26:29] Speaker 06:
I'm happy to look at that, but on page 59 they say, report any incidents to the command center.

[00:26:34] Speaker 03:
Right, they, Consolidated says report it to the command center, Huffmaster says report it to the police.

[00:26:38] Speaker 03:
Those are not mutually exclusive.

[00:26:40] Speaker 06:
That's not what the JA says.

[00:26:41] Speaker 06:
The JA says security procedures off-premise parking, which wasn't this issue.

[00:26:46] Speaker 06:
call that into the police.

[00:26:47] Speaker 06:
But this wasn't off premise.

[00:26:48] Speaker 03:
But it also says if you were followed off site to report to a police station, that's under the heading of off premise parking parking.

[00:26:55] Speaker 06:
And when you have the threats on the next page,

[00:26:57] Speaker 06:
If it's a work threat, contact security personnel.

[00:27:02] Speaker 06:
If it's a home threat, call the police.

[00:27:03] Speaker 06:
So there's nothing here that said he was supposed to.

[00:27:06] Speaker 06:
His employer wasn't required to call the police in this incident.

[00:27:10] Speaker 03:
I thought that there was, maybe I'm wrong, I thought that there was a statement not just related to offsite parking, but when you are followed offsite to call the police.

[00:27:19] Speaker 03:
And that is not exclusive to reporting it

[00:27:23] Speaker 03:
to uh... to consolidate it because for example there are several witnesses that filled out both a consolidated incident report and a huff master report.

[00:27:31] Speaker 03:
You can do both.

[00:27:33] Speaker 06:
You've got the reliance on the, you've gotten rid of the management thing, you've got the reliance on the police, failure to call police, very very important apparently to this ALJ, but only in this one, this one incidence.

[00:27:45] Speaker 06:
Then you got him saying it wasn't, there wasn't violence, but that violates clarifying moldings.

[00:27:49] Speaker 06:
So I'm trying to figure what

[00:27:51] Speaker 06:
is left once the board took out the management factor.

[00:27:54] Speaker 06:
What is left?

[00:27:55] Speaker 03:
Well, if you're looking at the credibility, you can look at footnote 16 of the board's decision on page 8, in which they discuss how there were differences in Comey's testimony at the hearing than with his contemporaneous reports at the time.

[00:28:11] Speaker 03:
And that is a reason for discrediting the later reports.

[00:28:15] Speaker 06:
But there were all kinds of inconsistencies in Hudson's testimony, including she didn't say he blocked him in, but he found that.

[00:28:20] Speaker 03:
Sorry, Hudson did not file a contemporaneous report.

[00:28:24] Speaker 03:
So that's where the inconsistency is.

[00:28:26] Speaker 03:
The board placed more reliance on what happened immediately, or what was reported immediately afterwards than what was reported down the line.

[00:28:34] Speaker 03:
But of course, also in the Connelly incident, it's not just based on discrediting Connelly.

[00:28:40] Speaker 03:
It's also based on crediting Hudson's uncontradicted account that she was driving the speed limit.

[00:28:45] Speaker 03:
Connelly and Diggs own testimony that they were not at risk of an accident.

[00:28:49] Speaker 06:
speed limit on the Beltway, what would happen?

[00:28:53] Speaker 06:
How dangerous that might actually be?

[00:28:56] Speaker 03:
Well, it might be annoying when someone is driving in front of you in the left lane.

[00:29:01] Speaker 06:
It's not annoying.

[00:29:02] Speaker 06:
I mean, the failure to go at speed and to block somebody in when he's trying to pass.

[00:29:06] Speaker 06:
There's two cars parallel right next to each other.

[00:29:09] Speaker 06:
One's just one.

[00:29:09] Speaker 03:
For approximately one minute.

[00:29:11] Speaker 06:
It's a long mile.

[00:29:13] Speaker 06:
I've had people do this to me.

[00:29:16] Speaker 06:
It's a long mile.

[00:29:17] Speaker 06:
It's a long minute, a long mile.

[00:29:19] Speaker 06:
Well, the... It was a dangerous minute, but a dangerous mile.

[00:29:24] Speaker 03:
Potentially dangerous.

[00:29:27] Speaker 03:
They were not at risk of hitting him.

[00:29:28] Speaker 06:
He's a good driver, I guess.

[00:29:32] Speaker 03:
Well, there was... What's that got to do with their behavior?

[00:29:36] Speaker 03:
It shows that it was not so egregious as to lose the protection of the act.

[00:29:42] Speaker 03:
I mean, it's driving the legally mandated speed limit, I don't think can deprive you of your rights under the National Labor Relations Act.

[00:29:50] Speaker 05:
The board here looks at every inconsistency on the part of company witnesses.

[00:29:58] Speaker 05:
At the same time, they don't seem to pay any attention at all

[00:30:02] Speaker 05:
to what's happening with the employee witnesses.

[00:30:07] Speaker 05:
For instance, it's my understanding that before this discipline took place, the employees had an opportunity to explain what had happened, correct?

[00:30:19] Speaker 03:
They were they had a meeting with the employees before they were disciplined It's it's not clear how much information those employees were actually given so they weren't sure what they had to respond to But so how do how do we how do we know that?

[00:30:34] Speaker 05:
I mean what I read when I read this was that they didn't respond and yet there were apparently all these innocent explanations so why wouldn't that go to their credibility and

[00:30:47] Speaker 03:
Well, first of all, some of them did respond.

[00:30:50] Speaker 03:
I believe Maxwell responded and gave his side of the story at the time.

[00:30:54] Speaker 06:
Hudson did not.

[00:30:57] Speaker 03:
I think that's right, that Hudson did not, I mean, but again, she was not given a full picture.

[00:31:02] Speaker 03:
The union asked in advance for the investigation for the bases of these allegations and they were not provided with anything.

[00:31:11] Speaker 03:
They came into the meeting and they were given these talking points as to what they were doing, as to what they were disciplined for.

[00:31:21] Speaker 03:
And I think that

[00:31:23] Speaker 03:
Well, ultimately the question is, does substantial evidence support the board's version?

[00:31:29] Speaker 03:
of the facts and whether the credibility determinations, I mean, yes, these, it could go to credibility, but there were certainly, there's plenty of other incidents that could go to cred, that do go to credibility, such as the inconsistencies.

[00:31:44] Speaker 03:
And we don't make this court's high standard of, you know, patently unsupportable or hopelessly incredible for all returning to board's credibility.

[00:31:52] Speaker 06:
Is it legal error to have a rule that you're applying

[00:31:55] Speaker 06:
but not to apply it even-handedly to witnesses.

[00:31:58] Speaker 06:
Is that just a credibility judgment, or is that actually a legal error to not apply a rule even-handedly?

[00:32:03] Speaker 03:
I don't think there was a rule that was not applied even-handedly.

[00:32:08] Speaker 06:
Hypothesize the situation where an ALJ doesn't apply a rule, a credibility rule, even-handedly.

[00:32:13] Speaker 06:
Is that legal error?

[00:32:16] Speaker 03:
It's a difficult question to answer in the abstract.

[00:32:19] Speaker 03:
I think that

[00:32:22] Speaker 03:
I mean, it is a problem if there is a standard for bias for the administrative law judge.

[00:32:34] Speaker 06:
I don't want to go to bias.

[00:32:35] Speaker 06:
I just want to know whether it's legal error to have credibility rules that you don't apply even-handedly.

[00:32:40] Speaker 03:
Once you get to an extreme instance of that, yes, it could be a legal error, but I don't think that's what happened here.

[00:32:48] Speaker 03:
I mean, there are points in which he credits calmly.

[00:32:52] Speaker 03:
He credited calmly that he was behind, that he was driving behind Hudson in the left lane.

[00:33:02] Speaker 03:
Right, I think if you get to a more extreme example, yes, that could be a legal error.

[00:33:07] Speaker 03:
But for the most part, credibility determinations are for an administrative law judge who is seeing the witnesses, who sees their demeanor, who can compare the contemporaneous reports with what's the embellished accounts that are given at the hearing, and can make a determination based on all of that.

[00:33:26] Speaker 03:
Seeing well over time, so if there are any other, not any other questions.

[00:33:32] Speaker 04:
Thank you.

[00:33:35] Speaker 04:
Council, any time left?

[00:33:38] Speaker 04:
There's an engineer here.

[00:33:39] Speaker 04:
Thank you.

[00:33:42] Speaker 04:
Someone's paying attention.

[00:33:44] Speaker 04:
Sorry.

[00:33:44] Speaker 04:
I didn't mean to excuse you for this.

[00:33:49] Speaker 04:
We're actually very anxious to hear from you.

[00:33:53] Speaker 02:
My name is Chris Grant.

[00:33:55] Speaker 02:
I represent the union in this matter.

[00:33:58] Speaker 02:
Let me just try to answer maybe some of the questions that Judge Millett had.

[00:34:01] Speaker 02:
On the Troy Conley incident, the

[00:34:08] Speaker 02:
The ALJ did recognize, as Mr. Heller mentioned this, did recognize that, and he actually credited Mr. Connolly with saying that Ms.

[00:34:24] Speaker 02:
Hudson was in front of her for a period of time, for a minute.

[00:34:27] Speaker 02:
And so he did engage in some credibility resolutions against the union there.

[00:34:34] Speaker 02:
Ms.

[00:34:34] Speaker 02:
Hudson's testimony was different than the judge found.

[00:34:39] Speaker 02:
But then the judge went further, and if you look at page seven of his decision, he did

[00:34:43] Speaker 02:
talk about how he resolved the credibility.

[00:34:46] Speaker 02:
And he looked at the basis of the testimony of the respondent's witnesses, the lack of detail, the fact that they couldn't indicate where on the road, on the highway where Ms.

[00:34:57] Speaker 02:
Hudson and Ms.

[00:34:57] Speaker 02:
Weaver passed them, the fact that their accounts or testimony was inconsistent.

[00:35:04] Speaker 02:
with that contemporaneous reports that they gave.

[00:35:07] Speaker 02:
The fact that their testimony conflicted, the two witnesses, the company witnesses, Mr. Conley and Mr. Diggs, that their testimony conflicted.

[00:35:17] Speaker 02:
And in fact, that Mr. Diggs testified that despite Mr. Conley's accusation, Ms.

[00:35:26] Speaker 02:
Hudson did not come close to causing an accident out there.

[00:35:30] Speaker 02:
And so the ALJ, yes, there's conflicting testimony, as there always is in these cases.

[00:35:36] Speaker 02:
And if it was just a matter of there's conflicting testimony that the union witnesses must be disbelieved, then there would be, if there was any, in any case, the union could not prevail.

[00:35:49] Speaker 02:
So they struggle here.

[00:35:50] Speaker 02:
The ALJ struggled with this

[00:35:52] Speaker 02:
this evidence and looked at multiple factors and ultimately resolved the credibility against the company witnesses, which is something that this court has loathed so for turn as it said over and over and over again in BICO products.

[00:36:06] Speaker 06:
Can I ask you something about the Williamson's crotch grabbing incident?

[00:36:13] Speaker 06:
In evaluating whether he lost the protection of that, the ALJ and the board kept relying on discharge.

[00:36:21] Speaker 06:
cases.

[00:36:22] Speaker 06:
And I'm wondering why the law doesn't require looking at the nature.

[00:36:27] Speaker 06:
It was only a two-day suspension.

[00:36:29] Speaker 06:
It seems to be materially different.

[00:36:31] Speaker 06:
I should think anyone would think from being discharged.

[00:36:33] Speaker 06:
And so when you look at the conduct, why don't you have to factor in the sanction as well in determining whether

[00:36:39] Speaker 06:
the employer by imposing that very limited sanction for this conduct crossed the line into sanctioning them for engaging in protective behavior rather than sanctioning them for unprotected behavior.

[00:36:52] Speaker 02:
Sure, and if I may answer.

[00:36:54] Speaker 02:
There is, yes, most of the cases at the board deal with discharge.

[00:37:00] Speaker 02:
I think, I don't think there can be much of a distinction though if the employer applies a lower level of discipline, a two day suspension, a three day suspension.

[00:37:11] Speaker 02:
as opposed to discharge.

[00:37:12] Speaker 02:
For one, I think the effect is still a restriction or discipline that discriminates based upon an employee's exercise of their right under the act to strike.

[00:37:23] Speaker 02:
And whether it's a two-day suspension, a written warning,

[00:37:26] Speaker 02:
a 30-day suspension or discharge, the effect is the same.

[00:37:30] Speaker 02:
And I think that the board has made its decision and its expertise.

[00:37:34] Speaker 02:
We're not going to make these granular judgments about, well, does a two-day suspension restrict someone's right less than a discharge?

[00:37:41] Speaker 02:
So I think these cases, although they speak all to discharge, their reasoning applies to a suspension.

[00:37:48] Speaker 02:
Thank you.

[00:37:50] Speaker 04:
Thank you.

[00:37:52] Speaker 04:
So yes, out of 10?

[00:37:55] Speaker 04:
OK, would you like to take a minute?

[00:37:57] Speaker 04:
OK, go ahead.

[00:37:58] Speaker 04:
Sure.

[00:38:01] Speaker 01:
Thank you.

[00:38:01] Speaker 01:
Just very quickly, the board's statement that you look at whether the misconduct, all the misconduct occurred is not accurate.

[00:38:09] Speaker 01:
We cite Fifth Circuit case, Sixth Circuit case, Rado-Rooter.

[00:38:12] Speaker 01:
It's just not accurate.

[00:38:13] Speaker 01:
In any event, the company did tell the union at Hudson's termination meeting that she was terminated for blocking.

[00:38:20] Speaker 01:
And that's exactly what the judge found.

[00:38:22] Speaker 01:
As to the idea that Ms.

[00:38:24] Speaker 01:
Hudson drove a speed limit, the actual testimony was that Connolly drove 69 miles per hour on the highway.

[00:38:30] Speaker 01:
So if Ms.

[00:38:30] Speaker 01:
Hudson was in front of him and drove in front of him, she wasn't driving the speed limit.

[00:38:36] Speaker 01:
At bottom though, the judge, misconduct occurred here.

[00:38:42] Speaker 01:
Under that test,

[00:38:44] Speaker 01:
The question is, was that serious enough to forfeit protection of the act?

[00:38:48] Speaker 01:
The judge never actually answered that question, because that question has to be answered under the clear pie moldings test.

[00:38:53] Speaker 01:
You will not find an analysis in this decision about whether that misconduct reasonably tended to coerce the, or intimidate employees under the act.

[00:39:01] Speaker 01:
That's fundamental error, and this fourth decision must not be enforced.

[00:39:06] Speaker 04:
Thank you.

[00:39:07] Speaker 04:
Cases submitted, we'll call the next case, please.