[00:00:01] Speaker 00: Case number 14-1232 at L, Design Technology Group LLC doing business as Betty Page Clothing and DTG California Management LLC doing business as Betty Page Clothing Petitioners versus National Labor Relations Board. [00:00:15] Speaker 00: Mr. Cope for Petitioners, Ms. [00:00:17] Speaker 00: Isbell for the Respondent. [00:00:38] Speaker 05: Morning, please. [00:00:38] Speaker 05: Court David Koch for Design Technology Group in DTG, California. [00:00:43] Speaker 05: Preserved two minutes for rebuttal. [00:00:46] Speaker 05: And, Your Honor, in this case, really, the question in this case is whether the requirement of an honest and reasonable belief really means anything. [00:00:56] Speaker 05: Section 7 of the NLRA requires concerted activity to be for the purpose of [00:01:03] Speaker 05: mutual aid or protection. [00:01:06] Speaker 05: You can add concerted activity without it being protected activity. [00:01:10] Speaker 05: But the NLRB has taken the position, essentially, that any concerted activity is automatically protected, irrespective of the motive or the purpose of that conduct. [00:01:20] Speaker 03: Well, whatever the merits of that argument, in this case, that was an even-if aspect of the decision. [00:01:26] Speaker 03: And they said that there was no credited evidence that the employees' actions were taken to entrap. [00:01:32] Speaker 03: That's what the board said. [00:01:33] Speaker 03: And the ALJ said it was frivolous. [00:01:36] Speaker 03: So we don't even have to decide that question. [00:01:39] Speaker 03: The question is whether the boards and the ALJ's decision that there was no credited evidence of sham, or however you want to use the words, supported by substantial evidence. [00:01:53] Speaker 05: That's correct. [00:01:54] Speaker 05: And the evidence, I'm not sure what further evidence you could have in a case like this to show entrapment, other than the... Well, you could have evidence of people saying, we intend to entrap. [00:02:03] Speaker 03: That's not, and the board didn't find that kind of evidence. [00:02:08] Speaker 05: The evidence, though, was clear. [00:02:09] Speaker 05: The actual, the question's case is about the Facebook posts. [00:02:12] Speaker 05: And first, the NLRB said these previous Facebook posts were important. [00:02:16] Speaker 05: We need to read those for what they say. [00:02:18] Speaker 05: But the subsequent posts that were the clear evidence of entrapment, where Miss Morris said, mu ha ha ha ha, they've fallen into my crutches. [00:02:29] Speaker 05: And when asked at the hearing what that meant to her, she said, well, that would mean I've lured them in. [00:02:36] Speaker 05: But when I said it, it didn't really mean anything. [00:02:39] Speaker 05: So what the NLRA or NLRB would like to say is, [00:02:44] Speaker 05: looking for what it says, but don't give any credit to it. [00:02:47] Speaker 05: Words have meaning, but in this case they don't. [00:02:50] Speaker 03: Well, I mean, here you have an ALJ who's making a credibility determination, and, I mean, skip to the bottom line of that determination. [00:02:59] Speaker 03: the ALJ believes, believed her that this was not any plan to do a sham. [00:03:04] Speaker 03: It was a reference to this monkey's quotation. [00:03:07] Speaker 03: Now, maybe that's wrong. [00:03:09] Speaker 03: Maybe you're right. [00:03:10] Speaker 03: But that's not the test for us. [00:03:12] Speaker 03: The test isn't whether you're wrong or right. [00:03:14] Speaker 03: The question is whether the very deferential review that we provide, where we really don't even review credibility questions at all, is sufficient here. [00:03:29] Speaker 05: Right. [00:03:30] Speaker 03: I'm right about that, right? [00:03:31] Speaker 05: That's what the question is. [00:03:32] Speaker 05: Correct. [00:03:32] Speaker 05: So to the extent that just credibility, and we're not asking the court to overturn the credibility determination here. [00:03:38] Speaker 05: We understand the standard there is high. [00:03:41] Speaker 05: But here, when the actual claiming party is making an admission that they've fallen into my crutches, they've fallen into my clutches, I've lured them in, they've done what I've asked them to do, and then in addition to that, what is also critical here is [00:03:57] Speaker 05: We sent out subpoenas asking for the information that would further indicate the nature of this plan. [00:04:06] Speaker 05: This Morris was the daughter of a paralegal at a law firm, and she brought in a workers' rights book and said, I didn't know it was in there, but I knew there might be some things in there, essentially a prop in this entire scheme. [00:04:18] Speaker 05: So we said, in the subpoena, give us all the documents. [00:04:21] Speaker 05: Give us all the rest of the Facebook posts, because it's quite clear in the appendix. [00:04:25] Speaker 05: Regardless of what they related. [00:04:28] Speaker 05: Well, at that time there, for instance, on the appendix number 393, there is a post that's cut off that says, again, muahahahaha, what a funny day I've had. [00:04:40] Speaker 05: And then we asked at the hearing, what followed that? [00:04:43] Speaker 05: What did you say after that? [00:04:45] Speaker 05: Well, I don't know. [00:04:47] Speaker 05: Because she was talking about the events of the day of the termination. [00:04:50] Speaker 05: She was talking about the fact that she celebrated when she was fired. [00:04:55] Speaker 05: And the ALJ found that even though she celebrated, Ms. [00:05:02] Speaker 05: Thomas celebrated when they were fired, even though the manager gave testimony, [00:05:07] Speaker 05: exactly along those lines that the manager's testimony must have been fabricated because it squared up with what the workers had actually said in their Facebook posts. [00:05:20] Speaker 05: In essence, the workers made an admission that they celebrated when they were fired. [00:05:25] Speaker 05: The manager had testimony that corroborated that, but the ALJ found, well, that testimony must have been created to fit within [00:05:34] Speaker 05: the Facebook posts when those are admissions of the parties themselves. [00:05:38] Speaker 05: So when those subpoenas went out and Ms. [00:05:40] Speaker 05: Morris came back and said, I didn't look for anything. [00:05:43] Speaker 05: You guys had all of it. [00:05:44] Speaker 05: I didn't even look for it. [00:05:46] Speaker 05: At that point in time, [00:05:48] Speaker 05: The employer was deprived of the right to be able to test this when Ms. [00:05:52] Speaker 05: Morris admitted in words that couldn't be any more clear that they've fallen into my clutches or my crutches, as she said, that her plan had succeeded. [00:06:02] Speaker 05: What else did she say about that? [00:06:04] Speaker 05: She must have said something else. [00:06:05] Speaker 05: She continued to talk about her terrible job, how she was so glad she was away from that poor head manager. [00:06:12] Speaker 05: And when we're deprived of the ability to obtain that evidence, when Ms. [00:06:18] Speaker 05: Morris says, I'm not going to provide it, and the ALJ says, she said it would be fruitless. [00:06:22] Speaker 05: Move on. [00:06:23] Speaker 05: Don't ask her anymore about it. [00:06:24] Speaker 05: We're not going to go into there any further. [00:06:27] Speaker 04: I'm having a hard time finding, at least in the ALJ's written opinion, any resolution of the subpoena question. [00:06:34] Speaker 04: He drops a footnote, but it doesn't seem to resolve the issue that you've raised. [00:06:41] Speaker 04: And then you file exceptions that dealt with the subpoena. [00:06:46] Speaker 04: And the board decision that we're reviewing [00:06:50] Speaker 04: It did not address the issue either. [00:06:53] Speaker 04: Correct. [00:06:54] Speaker 04: So I don't know where the... The ALJ at one point suggested sanctions barring the attorney from proceeding with the case and participating in the case. [00:07:12] Speaker 04: But did you ever ask for sanctions for failure to comply with the subpoena? [00:07:16] Speaker 05: We asked that the inference that the court find that there are other, the other documents that would have been there, and that's what the law says. [00:07:24] Speaker 05: You have an adverse inference. [00:07:26] Speaker 05: If you don't provide that information, there must be an adverse inference that you're hiding something, that the evidence that you would have had would have been detrimental to your case. [00:07:33] Speaker 04: Where did you, where did you, is that in the joint appendix? [00:07:37] Speaker 04: The? [00:07:37] Speaker 04: Your, what you're suggesting now? [00:07:40] Speaker 05: I can find that perhaps on rebuttal if there's an exact site. [00:07:45] Speaker 05: But we asked. [00:07:46] Speaker 05: It's in the joint appendix. [00:07:47] Speaker 05: You just don't know where? [00:07:48] Speaker 05: Is that what you're saying? [00:07:50] Speaker 05: I will check and confirm if I have. [00:07:52] Speaker 05: Is this an oral request or was it a written request? [00:07:55] Speaker 05: It was not a written request. [00:07:57] Speaker 05: But the burden under the rule under section 161 is that the board must seek to enforce the subpoena. [00:08:04] Speaker 05: And when the parties here came back and simply said, [00:08:10] Speaker 05: We're not going to provide this. [00:08:11] Speaker 05: We don't have enough time. [00:08:13] Speaker 05: And that's when the judge said, well, you better go out and talk to your client and find out if she's going to produce documents. [00:08:20] Speaker 05: And then he came back and said, well, she doesn't have anything. [00:08:22] Speaker 05: We're not going to find anything. [00:08:23] Speaker 05: And then on questioning. [00:08:24] Speaker 04: Was it only Morris? [00:08:26] Speaker 04: The subpoena was not only with respect to Morris, was it? [00:08:29] Speaker 05: The subpoena was to all three parties. [00:08:31] Speaker 04: All three. [00:08:33] Speaker 04: Why was it limited to the date of firing going forward? [00:08:40] Speaker 05: Because, well, the issue, and the board tried to make issue of this as well, saying, well, you couldn't have considered the stuff after the firing as part of your termination. [00:08:55] Speaker 05: That's not what we're talking about here, because you never saw that. [00:08:58] Speaker 05: Right. [00:08:59] Speaker 05: We're not saying that anything else was something that we... They weren't terminated. [00:09:04] Speaker 04: In your view, the evidence went to the question whether this was a sham [00:09:10] Speaker 04: Exactly. [00:09:10] Speaker 04: And that evidence that occurred after the firing could be relevant to that? [00:09:16] Speaker 05: Because they had admitted after the firing, we celebrated, we giggled, we hugged each other. [00:09:21] Speaker 05: They had admitted after the firing, they fell into my crutches. [00:09:25] Speaker 05: They had admitted after the firing, which is cut off. [00:09:27] Speaker 05: Muahahaha, what a funny day I've had. [00:09:30] Speaker 05: And then it stops. [00:09:32] Speaker 05: If an employee comes back and admits, I did all these things for this purpose, [00:09:37] Speaker 05: I now have the right to whatever I have under the law. [00:09:40] Speaker 05: That would be an admission that would be damning to a claim to say that this is an honest and reasonable. [00:09:44] Speaker 04: Hostings before the firing were put into evidence by you? [00:09:50] Speaker 04: By the NLRB. [00:09:52] Speaker 04: By the NLRB. [00:09:53] Speaker 04: And that was because these three individuals turned over their [00:09:58] Speaker 04: Why did they do that? [00:10:03] Speaker 05: They made the claim that we were improperly terminated for concerted protected activity. [00:10:13] Speaker 05: It's our understanding that [00:10:15] Speaker 05: Again, an employee who has a mother who works in an employment law firm, understands what these standards are, and then goes and runs to the NLRB saying, hey, they fired me because of these Facebook postings. [00:10:26] Speaker 03: I don't understand. [00:10:27] Speaker 03: I mean, if you know the law or you consult a lawyer, that's proof of luring in? [00:10:32] Speaker 03: That doesn't seem right. [00:10:33] Speaker 05: Not proof, but an indication of the fact that they had a plan in mind, that they intended to use... [00:10:40] Speaker 03: Anything in that sentence about the employee handbook shows they had a plan in mind. [00:10:46] Speaker 03: What it shows is that they said they were being treated unfairly, and looking in the book, it shows they can't treat us unfairly. [00:10:54] Speaker 03: That doesn't mean it's a plan to be fired. [00:10:57] Speaker 03: That means that they know their rights, and they're going to assert their rights. [00:11:01] Speaker 05: Right. [00:11:02] Speaker 05: And those rights, the assertion of those rights, Frank is pro-textual here. [00:11:05] Speaker 05: When asked at the trial, what were the rights that were in the handbook? [00:11:09] Speaker 05: Well, we have a right to a microwave and a water cooler. [00:11:12] Speaker 05: And now the NLRB in its appeal brief, interestingly saying, well, it's all about safety. [00:11:16] Speaker 05: They were trying to protect for the protest, for their safety. [00:11:19] Speaker 05: Being on Haight Street at night was dangerous. [00:11:21] Speaker 04: You're already saying, you're not claiming, are you, that the [00:11:26] Speaker 04: whatever that book was on California law or whatever proves that they were, it's relevant though, because it makes it more likely than not that, and that's just one little piece of evidence along with the other factors. [00:11:44] Speaker 05: It's relevant in the sense that Ms. [00:11:46] Speaker 05: Morris says, I never looked at the book. [00:11:48] Speaker 05: I just brought it in, set it at the table, and said, hey, take a look. [00:11:51] Speaker 05: And then I took it home. [00:11:52] Speaker 05: And then I wrote about it on Facebook to say, hey, I brought a workers' rights book in to demonstrate that the Facebook comments, which were the heart of this whole thing, were simply a sham, again, to demonstrate that my employer [00:12:05] Speaker 05: is violating the law and these employment laws against me. [00:12:09] Speaker 05: That's really, it's a prop in the sham. [00:12:12] Speaker 05: How many people worked at that particular store? [00:12:15] Speaker 05: There were, I believe the evidence was four to five, well, total 78 employees I think overall. [00:12:21] Speaker 05: There were [00:12:23] Speaker 05: three or four maximum in the store at one time including manager. [00:12:25] Speaker 04: Why is it that the National Labor Relations Act even applies to that store? [00:12:29] Speaker 05: The claim was that it was because the employer had other stores in other locations of the joint employer for locations in Santa Barbara, San Diego. [00:12:41] Speaker 05: And that added up to the, what is it, 50 employees? [00:12:43] Speaker 05: I believe it's 50 employees, yes, so the employer overall. [00:12:47] Speaker 05: With that, I'll reserve two minutes if I can. [00:12:57] Speaker 01: May it please the court, Kelly Isbell here on behalf of the National Labor Relations Board. [00:13:01] Speaker 01: This is a substantial evidence case. [00:13:03] Speaker 01: and substantial evidence supports the board's finding that these employees were engaged in protected, concerted activity. [00:13:11] Speaker 04: What concerted activity was Johnson engaged in? [00:13:15] Speaker 04: And what's the evidence of it? [00:13:17] Speaker 01: Johnson was part of the Facebook post about bringing in the workers' rights book. [00:13:23] Speaker 01: When it started off, she was part of that discussion. [00:13:26] Speaker 04: There was only one posting by Johnson. [00:13:29] Speaker 01: There's only one posting in the A. L. J. Characterizes it not. [00:13:33] Speaker 01: What was that one post? [00:13:35] Speaker 01: That Betty Page would roll over in her grave. [00:13:38] Speaker 01: I've been thinking that for a while now. [00:13:40] Speaker 04: Yeah. [00:13:40] Speaker 04: So where's the concern of activity there? [00:13:43] Speaker 04: The concern of activity supposedly was that the these employees didn't want to work past a certain time because it was a dangerous neighborhood. [00:13:52] Speaker 01: It was a range of concerted activity. [00:13:54] Speaker 04: So let's start with the... I want to know what Johnson's involvement in any of that is. [00:13:59] Speaker 01: Johnson signed the letter to the management about Griffin's behavior that affected their terms and conditions of employment. [00:14:07] Speaker 01: She was in the staff meetings where employees complained to Manager Griffin about their fears, their concerns about safety staying late at work at night. [00:14:16] Speaker 01: She was part of the Facebook conversation. [00:14:19] Speaker 01: about bringing the workers' rights book in, the judge did say her particular comment was innocuous. [00:14:25] Speaker 01: But the issue for the judge was that Griffin, the manager, associated her with Thomas and Morris and said that she would like to put a gag order on her so that she could not discuss work with Griffin and Thomas, with Morris and Thomas. [00:14:41] Speaker 04: I'm sorry. [00:14:42] Speaker 04: Well, that raises a legal question. [00:14:44] Speaker 04: If an employer believes wrongly [00:14:48] Speaker 04: that an employee is engaging in concerted activity and the employee in fact is not and then fires the employee for that. [00:14:56] Speaker 04: Is that a violation of the NRA? [00:15:02] Speaker 01: That is an interesting [00:15:04] Speaker 01: hypothetical. [00:15:05] Speaker 01: And I would have to work on that for a little while. [00:15:07] Speaker 01: I mean, if she was not engaged in actual protected concerted activity. [00:15:11] Speaker 04: But the employer believes she was and fires her for that reason. [00:15:15] Speaker 01: Then the board might find it to be a violation. [00:15:18] Speaker 01: But the threshold would be that she had to be involved in protected concerted activity. [00:15:23] Speaker 01: And here she clearly was. [00:15:24] Speaker 01: I mean, she was involved and she signed the letter. [00:15:27] Speaker 01: the original letter that went about Griffin. [00:15:30] Speaker 01: And she was associated with Morris and Thomas. [00:15:33] Speaker 01: And that was the connection the judge met. [00:15:34] Speaker 04: Of course she was. [00:15:36] Speaker 04: There were only four or five employees in the store. [00:15:38] Speaker 04: But that doesn't necessarily mean that every one of them was engaging in concerted activity. [00:15:44] Speaker 04: Two of them could have gotten together and complained about the lack of a water fountain. [00:15:50] Speaker 01: Well, if they were complaining about the lack of a water fountain, [00:15:54] Speaker 01: that could be their terms and conditions of employment. [00:15:56] Speaker 01: I mean, I don't know that that would not be protected concerted activity. [00:16:00] Speaker 01: But this particular employee received a text message from Thomas. [00:16:04] Speaker 01: Manager Griffin saw it and immediately said, I want to put a gag order on you so that you can not talk to them about work. [00:16:11] Speaker 01: The judge found that that connected her to Morris and Thomas, who had recently been fired. [00:16:16] Speaker 01: And when she was fired, Ms. [00:16:18] Speaker 01: Johnson, [00:16:20] Speaker 01: He found that the reasons given for her firing were pretextual. [00:16:23] Speaker 01: There was no real reason for her firing except her connection to Morris and Thomas and the protected concerted activity that all the employees were engaging in up to that time. [00:16:34] Speaker 04: Why is it that the Facebook postings represent concerted activity? [00:16:42] Speaker 04: The ones that we have in the record. [00:16:45] Speaker 01: The Facebook post that is protected concerted activity is the workers rights post on page 390 of the joint appendix. [00:16:54] Speaker 01: Right, so that is the post where the employees were talking about bringing the California workers' rights book in. [00:16:59] Speaker 01: That's the post the board found to be part of the protected conservative activity. [00:17:05] Speaker 01: It was a continuation of their attempts to have management close the store one hour earlier. [00:17:12] Speaker 01: That attempt was denied. [00:17:13] Speaker 01: They complained about it on Facebook that night, and the workers' rights book is part of that discussion. [00:17:18] Speaker 01: What page 39? [00:17:19] Speaker 01: 390, I believe. [00:17:26] Speaker 01: The other Facebook posts, there are a variety, but they're extra in a sense. [00:17:32] Speaker 01: I mean, it's the workers' rights post that's part of the protected activity that was the continuation of the discussion with the owner about closing the store early. [00:17:44] Speaker 02: Is reinstatement still on the table? [00:17:47] Speaker 02: It seems to me that even [00:17:50] Speaker 02: when it was ordered. [00:17:51] Speaker 02: This is almost six years ago now. [00:17:55] Speaker 02: It is a matter of record that whether they were bluffing or not, they were looking for other jobs. [00:18:04] Speaker 02: It seems like an incredibly ill fit as a remedy. [00:18:10] Speaker 01: The board does not [00:18:14] Speaker 01: limit reinstatement unless there are definitive plans to leave, or you've already gotten a job, or for other reasons, like apico ends where there is extreme misbehavior. [00:18:30] Speaker 01: Antagonism between the supervisor and employees is not reason to stop reinstatement, especially when that antagonism is part and parcel of the protected, concerted activity in this case. [00:18:41] Speaker 02: Well, how about looking for another job? [00:18:43] Speaker 01: Looking for another job is not a reason to bar reinstatement. [00:18:47] Speaker 02: And what's the authority for that? [00:18:50] Speaker 01: The board's decision, and I think it's called Campbell Electric. [00:18:54] Speaker 01: What the board wants is if the employee has definitive plans to move, the employee's accepted an offer, the employee has told the employer, I'm leaving. [00:19:04] Speaker 01: I'm giving you my notice. [00:19:06] Speaker 01: Then the board will not order reinstatement. [00:19:09] Speaker 01: But simply looking for a job, [00:19:12] Speaker 01: As people do. [00:19:13] Speaker 02: How about celebrating being fired? [00:19:16] Speaker 01: The administrative law judge, remember, did not credit that testimony. [00:19:21] Speaker 01: I mean, that is completely incredible testimony. [00:19:23] Speaker 01: On the part of Manager Griffin, the administrative law judge found that she and the owner were fabricating testimony, and he would not credit any of their testimony except as it was in the initial. [00:19:33] Speaker 02: What about the postings? [00:19:33] Speaker 02: I thought some of those postings had it as well. [00:19:36] Speaker 01: Ms. [00:19:37] Speaker 01: Morris posted. [00:19:39] Speaker 01: something she described as being sarcastic, that she was not actually celebrating when she was fired. [00:19:46] Speaker 01: She posted on Facebook what she considered to be a sarcastic statement. [00:19:51] Speaker 01: And the judge credited her testimony. [00:19:54] Speaker 01: I mean, he found that she was completely credible, and that there was no evidence that she and Ms. [00:20:01] Speaker 01: Thomas actually celebrated. [00:20:03] Speaker 01: They both said they hugged after they were fired and escorted out of the building. [00:20:08] Speaker 01: But they were not. [00:20:09] Speaker 02: Did the post say something about freedom, or was that? [00:20:13] Speaker 01: No, this particular post said, sarcastically, the best thing happened. [00:20:18] Speaker 01: We celebrated and giggled and high-fived. [00:20:23] Speaker 04: No, she also posted that she's glad to be away from that hard job. [00:20:32] Speaker 04: So go ahead and complain and do it. [00:20:36] Speaker 04: And then eight, the number eight. [00:20:39] Speaker 01: I think that may be some symbol, like the eyeglasses with the smile that she sometimes put in. [00:20:47] Speaker 01: a different post where she was complaining about her job. [00:20:50] Speaker 04: I don't think so, because the previous post talked about... I'm sorry, can you tell me about Pagerone? [00:20:56] Speaker 04: The 390-391, the California War, and talked about a violation of 8, which seems to me to refer to it as Section 8 of the National Labor Relations Act. [00:21:12] Speaker 01: And you're on 390? [00:21:15] Speaker 04: Yes, 390 and 390. [00:21:17] Speaker 04: 391. [00:21:18] Speaker 01: The 8. [00:21:19] Speaker 01: It's a symbol with eyeglasses and... You know how you make a smiley face? [00:21:25] Speaker 01: This is a smiley face with eyeglasses. [00:21:29] Speaker 01: And there's no finding that she was referring to the act. [00:21:32] Speaker 01: And I believe there's testimony where she described it as a smiley face with glasses. [00:21:37] Speaker 01: You're like me, Your Honor. [00:21:38] Speaker 04: What's your explanation of the question on the subpoena? [00:21:43] Speaker 04: The ALJ dropped a footnote that doesn't seem to resolve the, in his opinion, doesn't matter, doesn't seem to, doesn't resolve it. [00:21:51] Speaker 01: Well, if you read the transcript, Your Honor, [00:21:54] Speaker 01: What happened was, as you noted, this was an extremely broad subpoena, all cell phone records, all emails, texts between these employees and certain other employees. [00:22:03] Speaker 01: For Ms. [00:22:04] Speaker 01: Thomas, all employment applications, W9s, forms with her social security number on it. [00:22:09] Speaker 01: The administrative law judge tried to narrow the request. [00:22:14] Speaker 01: He told the employer that they could ask about cell phone records if they needed to know about a particular phone call. [00:22:22] Speaker 01: Crawford that they wanted the cell phone records and the Facebook records to prove that employees were using cell phones and computers on work time. [00:22:31] Speaker 01: And the administrative law judge admonished them that they would not be allowed to fish for reasons not to rehire these employees. [00:22:38] Speaker 01: He let them ask employees whether or not they had more responses to the subpoena. [00:22:46] Speaker 01: They only asked Ms. [00:22:47] Speaker 01: Morris. [00:22:48] Speaker 01: Ms. [00:22:48] Speaker 01: Thomas and Ms. [00:22:49] Speaker 01: Johnson were on the witness stand. [00:22:50] Speaker 01: They never asked any questions. [00:22:52] Speaker 01: They never objected to the judges narrowing. [00:22:55] Speaker 04: Well, Morris's attorney said, you know, I haven't done anything to comply with the subpoena. [00:23:00] Speaker 04: And then the counsel said, well, we'll ask her. [00:23:04] Speaker 04: And she gets on the stand and says, I haven't looked through my Facebook posts. [00:23:10] Speaker 01: And she also testified that they had all of her Facebook posts already. [00:23:14] Speaker 01: She had provided them at the start of the trial. [00:23:17] Speaker 01: And that they had everything related to her comments about the job on her Facebook. [00:23:24] Speaker 01: They already had it. [00:23:25] Speaker 01: And that was her testimony. [00:23:27] Speaker 01: Well, how could you say that if you hadn't looked? [00:23:30] Speaker 01: She said that she had not posted about the job since then. [00:23:36] Speaker 01: The administrative law judge believed her. [00:23:37] Speaker 01: But remember, this particular question goes to whether or not there is a conspiracy to get fired, which both the board and the administrative law judge completely rejected. [00:23:48] Speaker 04: The issue is whether... They're trying to get evidence to prove that. [00:23:53] Speaker 04: And to say that, well, it was rejected is not an answer to whether the subpoena should have been unfused by the court. [00:24:01] Speaker 01: On just the subpoena issue, at the trial, they did not object to the administrative law judges narrowing. [00:24:07] Speaker 01: In their exceptions to the board, what they asked for was an adverse inference and or sanctions against that attorney. [00:24:12] Speaker 01: They never asked the general counsel to enforce the subpoena, and they did not tell the board that they did not bring up these merits issues. [00:24:20] Speaker 01: They asked for an adverse inference or sanctions against the employee's attorney. [00:24:24] Speaker 04: You have to ask the general counsel to enforce the board's subpoena? [00:24:29] Speaker 01: If in the trial, there is no indication that you are upset with what the judge did, and on this record, there is no indication. [00:24:36] Speaker 01: The judge narrowed it, they said okay, and asked questions of Ms. [00:24:41] Speaker 01: Morris. [00:24:42] Speaker 01: They didn't believe her, but they never brought it back up to the judge that something else should be done. [00:24:47] Speaker 01: There was no indication for the judge or the general counsel that they needed to take further steps on this record. [00:24:54] Speaker 01: And I see I have completely run out of time. [00:24:57] Speaker 03: And he didn't raise before the board that it was an abuse of discretion to squash the subpoena. [00:25:03] Speaker 01: I'm sorry. [00:25:03] Speaker 03: They did not raise before. [00:25:05] Speaker 03: This is what you said in your brief, that they did not. [00:25:08] Speaker 03: They did not. [00:25:09] Speaker 04: We never quashed? [00:25:10] Speaker 03: No, I did not enforce it. [00:25:12] Speaker 03: I'm sorry. [00:25:13] Speaker 01: He partially quashed in the sense that he told them they could have some records in compliance. [00:25:19] Speaker 01: They wanted employment applications. [00:25:21] Speaker 01: That's for compliance. [00:25:23] Speaker 01: In the Facebook post, he allowed them to question witnesses. [00:25:25] Speaker 01: After he questioned them one witness, nothing was ever brought up to the judge or the general counsel again that that was inadequate. [00:25:38] Speaker 01: And I've completely gone over my time. [00:25:39] Speaker 01: If I may, just very briefly, the board found that these employees were engaged in protected concerted activity. [00:25:48] Speaker 01: Whether they wanted to be fired, which the board rejected, is actually irrelevant to that question. [00:25:56] Speaker 01: If I don't like my supervisor and complain about the heat in my office with my other employees, let's assume I'm doing concerted activity, because I want to get my supervisor in trouble, it's still protected activity if I am raising an issue that relates to my terms and conditions of employment. [00:26:14] Speaker 04: Would it be protected activity if two employees post [00:26:17] Speaker 04: On Facebook, something to the effect that the products here are overpriced and they're inferior goods and the store manager is a creep. [00:26:30] Speaker 01: Then you're talking about whether or not that would be what I would consider to be a traditional Facebook case, where what the question is is whether or not they lost the protection of the act, whether they were disloyal or defamatory. [00:26:41] Speaker 01: And those are questions the board has answered in the affirmative in other cases where they found that Facebook posts were not protected. [00:26:48] Speaker 01: That kind of issue did not come up in this case. [00:26:53] Speaker 01: Thank you. [00:26:54] Speaker 03: Does the Appellant Petitioner have any time? [00:26:57] Speaker 03: All right, we'll give you another couple of minutes. [00:26:59] Speaker 03: I would want to ask, when in the JA where you explained the grounds for the discovery, that is why you needed the discovery? [00:27:11] Speaker 05: Why we needed it? [00:27:12] Speaker 03: Yeah. [00:27:12] Speaker 05: Well, on 164 and 165, we talked. [00:27:15] Speaker 05: This is one of the questions, Ms. [00:27:16] Speaker 05: Morris, about looking for the Facebook documents. [00:27:21] Speaker 05: Earlier at the very beginning of the proceeding, this was actually before the trial took place, [00:27:32] Speaker 05: was the discussion of Mr. Rosenfeld, the attorney, saying, I'll be late. [00:27:38] Speaker 05: I'm not going to produce documents in time and only when he was sent out to tell Miss Morris. [00:27:42] Speaker 05: And I do not have a site for that. [00:27:45] Speaker 03: I was looking about why you needed the Facebook postings. [00:27:49] Speaker 05: Yeah, and there were discussions about the other, it was partially quashed. [00:27:54] Speaker 05: And the board actually joined in the motion to quash. [00:27:56] Speaker 05: So to answer the question about, you know, shouldn't the board be doing something, when we are proffering the subpoena through the board and then the board tries to quash our subpoena, then we go ask them to say, please go ask a district court to enforce the subpoena when they're asking to quash it. [00:28:12] Speaker 05: would be a fool's errand. [00:28:15] Speaker 05: And we are not disputing the overbreath determination on the cell phone records. [00:28:21] Speaker 05: There were some reasons that those were offered. [00:28:22] Speaker 05: But the Facebook postings, when Ms. [00:28:24] Speaker 05: Morris was asked specifically, [00:28:27] Speaker 05: What does that Facebook posting want to say on 393? [00:28:30] Speaker 05: It's, oh, I don't know. [00:28:31] Speaker 05: It cuts off there. [00:28:33] Speaker 05: I don't know what is left there. [00:28:35] Speaker 05: And I didn't go back to look on it. [00:28:36] Speaker 05: She specifically says, I never looked. [00:28:38] Speaker 05: So I think that's critical in the determination. [00:28:42] Speaker 03: Did you tell the board and the ALJ why you needed that post? [00:28:48] Speaker 05: All of the postings were proffered, the entrapment explanation for here's the postings and here's what they say. [00:28:54] Speaker 05: This is the entrapment, the chant combat. [00:28:57] Speaker 03: I know that's your theory now. [00:28:58] Speaker 03: I'm asking you where you made the entrapment theory to the board, not to the ALJ. [00:29:08] Speaker 05: I don't know, I apologize. [00:29:11] Speaker 03: Okay, that's all right. [00:29:12] Speaker 05: But that was certainly the crux of what the physical questions were. [00:29:17] Speaker 03: Excuse me, and the board said you didn't argue before the board that the refusal to enforce the subpoena was an error or a recent discretion. [00:29:28] Speaker 05: Now, the exceptions were raised to the lack of enforcement. [00:29:32] Speaker 03: I thought the exception was to, I'm not giving the adverse inference. [00:29:39] Speaker 03: Was there an exception also to lack of enforcement? [00:29:42] Speaker 03: I didn't see that. [00:29:44] Speaker 05: Exception six. [00:29:46] Speaker 05: It definitely was a reference to the adverse inference. [00:29:53] Speaker 03: Yeah, to the adverse inference. [00:29:54] Speaker 03: I'm talking about, that's another step. [00:29:58] Speaker 03: The question of whether they should have enforced this, which is what you're arguing here. [00:30:02] Speaker 05: Right. [00:30:03] Speaker 05: Well, in 164, 165, the court explains move on. [00:30:08] Speaker 05: Last time you were going to ask about this, move on. [00:30:11] Speaker 05: And so we did not raise to say that it was his abuse of discretion. [00:30:14] Speaker 05: I don't think that was raised as an exception. [00:30:17] Speaker 05: But on review here, it's a review for abuse of discretion as far as the enforcement and lack of enforcement. [00:30:21] Speaker 03: Well, but not if he didn't raise that before the board. [00:30:24] Speaker 03: The board said he didn't raise it. [00:30:25] Speaker 03: That's what they said. [00:30:26] Speaker 03: And I looked in your reply brief, and you didn't say, oh, yes, we did. [00:30:29] Speaker 03: You just let it go. [00:30:30] Speaker 03: No, I think we raised it on the context, as put in our exception six. [00:30:35] Speaker 03: But that one I'm reading is that's just about imposing adverse inference. [00:30:41] Speaker 03: or other sanctions. [00:30:42] Speaker 05: Right. [00:30:43] Speaker 05: Which should have been, again, it's not a question of the board moving to enforce. [00:30:48] Speaker 05: It's a question of the employee not responding and not complying with it. [00:30:52] Speaker 05: To say, to go back to, let's say the board says, OK, we're going to enforce it. [00:30:55] Speaker 05: You need to comply with it now. [00:30:57] Speaker 05: And she said, and the court agreed with her, that'd be fruitless. [00:31:01] Speaker 05: I didn't post anything else. [00:31:01] Speaker 03: I'm not even going to vote. [00:31:02] Speaker 03: Don't you have to get the ALJ to direct them to respond? [00:31:06] Speaker 03: You asked for all Facebook pages from 2010 to the present. [00:31:09] Speaker 03: regardless of the subject matter, everything, every single one. [00:31:13] Speaker 03: I can't imagine an ALJ granting that. [00:31:16] Speaker 03: So if you wanted to narrow that, and you agree with that, right? [00:31:18] Speaker 03: You couldn't possibly get every Facebook page. [00:31:21] Speaker 05: I understand. [00:31:21] Speaker 03: All right. [00:31:22] Speaker 03: So if you wanted something narrower, then you'd have to ask the ALJ to enforce a narrower subpoena. [00:31:31] Speaker 03: And then you'd have to say that the ALJ abused its discretion by not doing that. [00:31:36] Speaker 05: And maybe we didn't say those magic words, perhaps. [00:31:40] Speaker 05: ALJ didn't narrow it at that time, said, OK, did you look for Facebook postings where Betty Page or your workplace is mentioned? [00:31:49] Speaker 05: No, I didn't look for anything, because I know, as I sit here today, two years later, that I didn't post anything after that date, even though I never looked for it. [00:31:56] Speaker 04: She also said, or at least the attorney represented after her recess, that she [00:32:04] Speaker 04: The hearing took place in 2012. [00:32:07] Speaker 04: The events we're talking about took place in 2010. [00:32:11] Speaker 04: Correct. [00:32:12] Speaker 04: And the attorney at least represented to the ALJ that she had deleted the prior, the postings back that far, right? [00:32:24] Speaker 05: I think he said that he believed she could not retrieve them, but she, again, [00:32:29] Speaker 05: She never looked. [00:32:30] Speaker 05: We didn't have the chance to go to Facebook and say, I don't know if they're achievable at that point or not. [00:32:34] Speaker 05: Did you subpoena Facebook? [00:32:35] Speaker 05: We did not subpoena Facebook because we expected and anticipated that those postings, rather than getting to Facebook, and I don't know what Facebook's policy is. [00:32:44] Speaker 05: I assume at an LRB proceeding, trying to jump through those hoops in time for that proceeding would be difficult, to say the least. [00:32:51] Speaker 05: If she provided them already, if she's provided the affirmative evidence, she also needs to provide the evidence that undercuts what she's trying to assert here. [00:33:01] Speaker 05: And just one last point, the question was raised about whether, if there was not actual protected activity, and the employer mistakenly terminated them, in a Lipsy case in the NLRB, it talks about the question whether someone is a bona fide applicant for employment. [00:33:18] Speaker 05: If he was not, no violation of Section 8 of the Act could have been said to have occurred, notwithstanding the intention of the respondent to discriminate against him. [00:33:27] Speaker 05: So NLRB says, this is the conduct, this Facebook posting, this is it. [00:33:32] Speaker 05: And a lot of it happens to be with non-employees. [00:33:34] Speaker 05: This is the reason that we're claiming that it was the protected activity. [00:33:38] Speaker 05: If it's not, if it's a sham, if it's entrapment, and if you don't provide the evidence that would demonstrate that, then you can't make a finding of conserved protected activity. [00:33:48] Speaker 02: I've got one question, if you know. [00:33:49] Speaker 02: Are any of these women still employed by your client, specifically Griffin? [00:33:55] Speaker 05: Griffin is. [00:33:57] Speaker 05: I don't know specifically, but... The others have not been reinstated? [00:34:01] Speaker 05: They have not been, no. [00:34:04] Speaker 05: And on that, the question about the definitive plan to leave, they sent out resumes five days before they were fired saying, I'm immediately available, and didn't list Betty Page on the resumes, saying, I'm available whenever you need me. [00:34:17] Speaker 03: Well, I assume if they didn't get a job, they weren't going to leave. [00:34:19] Speaker 03: That's not the same. [00:34:20] Speaker 03: People can send out. [00:34:21] Speaker 03: The board's description of its cases, which fits my recollection, is, of course, if you accept a job, then, of course, then you can't be reinstated. [00:34:32] Speaker 03: But just because you put out resumes, [00:34:35] Speaker 03: A lot of people in this world put our resumes and don't get jobs. [00:34:38] Speaker 03: Sure. [00:34:38] Speaker 05: A lot of people, though, don't go to their employer's computer at the store, send them out when they know their employer is looking at those resumes also. [00:34:45] Speaker 05: So to the extent that, again, this is some sort of a valid employment search, that's not the way you do it. [00:34:51] Speaker 05: They were planning to leave. [00:34:52] Speaker 05: They didn't list Betty Page on their resume. [00:34:54] Speaker 05: And they said, I'm immediately available. [00:34:56] Speaker 05: So that point could be argued. [00:34:58] Speaker 05: But they didn't intend to be there. [00:35:02] Speaker 05: Thank you. [00:35:02] Speaker ?: Thank you. [00:35:03] Speaker 05: All right, we'll take the matter under session. [00:35:05] Speaker 00: Thank you.