[00:00:01] Speaker 01:
Case 15-1110 et al.

[00:00:05] Speaker 01:
Health Bridge Management LLC and 710 Longridge Road Operating Co.

[00:00:10] Speaker 01:
2 LLC.

[00:00:12] Speaker 01:
Doing business as Longridge of Stamford Petitioners versus the NLRB.

[00:00:17] Speaker 01:
Mr. Greschengorn for the petitioners and Mr. Cantor for the respondent.

[00:01:00] Speaker 02:
Good morning, Your Honors.

[00:01:02] Speaker 02:
May it please the court, my name is Brian Gershengorn.

[00:01:04] Speaker 02:
I'm appearing on behalf of the petitioners.

[00:01:06] Speaker 02:
This case is about an individual by the name of Patrick Atkinson.

[00:01:10] Speaker 02:
He's a six foot, two inch male, former cook and dietary aide at Longridge.

[00:01:15] Speaker 02:
His employment was terminated because he verbally abused, physically threatened, and his otherwise abhorrent behavior towards his supervisor, Polly Schnell, a five foot, five inch supervisor, during a planned walk-in

[00:01:29] Speaker 02:
that he led with 15 to 20 other employees.

[00:01:33] Speaker 02:
Because Mr. Atkinson's employment was terminated while engaging in concerted activity under the Act, we need to balance the Atlantic steel factors to determine if Mr. Atkinson lost the protection of the Act.

[00:01:45] Speaker 02:
Petitioner argues that the ALJ and subsequently the Board erred as a matter of law, primarily in its analysis of the first and third Atlantic steel factors, the location and the nature of Mr. Atkinson's outburst.

[00:01:59] Speaker 00:
What was the problem with the location?

[00:02:03] Speaker 02:
Your Honor, the location was in Ms.

[00:02:06] Speaker 02:
Chanel's office.

[00:02:08] Speaker 02:
It was a planned walk-in at the end of Mr. Atkinson's shift.

[00:02:12] Speaker 02:
And the recent board law, specifically in Starbucks, has stated that the location of the employee's conduct weighs against the protection of the Act

[00:02:22] Speaker 02:
when the employee engages in subordinate or per-frame conduct for the supervisor in front of the other employees.

[00:02:28] Speaker 02:
And that's what happened here.

[00:02:29] Speaker 02:
He specifically got 15 to 20 individuals, had this planned walk-in, and what he was attempting to do was to undermine Mission Hell's authority as a supervisor at the facility.

[00:02:42] Speaker 02:
In its decision, the board simply said that since this conduct took place in Ms.

[00:02:48] Speaker 02:
Chanel's office, and it was away from any patients, that that in and of itself would lend the first prong, the location, to weigh in favor of Mr. Atkinson.

[00:03:03] Speaker 02:
We maintain that that's contrary to the board's own precedent.

[00:03:06] Speaker 02:
And Daimler-Chrysler, an aluminum company, the board reasoned that

[00:03:11] Speaker 02:
where the presence of others' employees would reasonably tend to affect the workplace discipline by undermining the authority of the supervisor, the employees' attack on the location of conduct weighs against protection of the Act.

[00:03:24] Speaker 00:
But here, you know, everybody agrees this was appropriate concerted conduct.

[00:03:31] Speaker 00:
It was away from the business of the company.

[00:03:37] Speaker 00:
It was in the manager's office.

[00:03:40] Speaker 00:
So all of that would seem to be okay under the four factors, right?

[00:03:48] Speaker 00:
Well, we would maintain that no, Your Honor, under the first... Well, in other words, the place doesn't seem to be the problem.

[00:03:55] Speaker 00:
The problem seems to be

[00:03:58] Speaker 00:
you know, was the conduct insubordinate and was it done in order to embarrass or undermine the manager?

[00:04:06] Speaker 00:
So it's not the place that you're really looking at, is it?

[00:04:09] Speaker 02:
I would agree with you, Your Honor.

[00:04:10] Speaker 02:
We would maintain that the first factor should weigh in favor of the petitioner.

[00:04:14] Speaker 02:
And that one of the issues that the court here should address is we believe as a matter of law that that should weigh in favor of the petitioner.

[00:04:22] Speaker 02:
Alternatively, we believe that the court should remand to the board and the board needs to analyze the location of the act because it failed to do that here.

[00:04:31] Speaker 02:
The board's only statement on this issue was that this took place in an office away from patients.

[00:04:38] Speaker 02:
The case, the board's own case law says that that is not what the board should analyze from looking at this first Atlantic steel factor.

[00:04:48] Speaker 02:
I do agree that the third factor, the nature of the outburst is really an issue here.

[00:04:54] Speaker 02:
Again, the petitioner maintains as a matter of law, that factor should weigh in favor of the petitioner.

[00:05:01] Speaker 02:
We maintain that the Board ignored the undisputed facts that demonstrated that Ms.

[00:05:07] Speaker 02:
Schnell was reasonably intimidated by Mr. Atkinson's planned walk-in here.

[00:05:13] Speaker 02:
The most recent case that addressed this issue was Starbucks for the Board, Your Honor.

[00:05:19] Speaker 02:
And specifically here, Ms.

[00:05:21] Speaker 02:
Schnell was alone at her office,

[00:05:22] Speaker 02:
She was surrounded by 15 to 20 employees unannounced.

[00:05:27] Speaker 02:
The employees who testified at the hearing recognized that Ms.

[00:05:31] Speaker 02:
Chanel was startled by the employees' gathering.

[00:05:34] Speaker 02:
Mr. Atkinson acknowledged on the record that he spoke loudly.

[00:05:38] Speaker 02:
He had admitted to making this pounding gesture with his hand and that he began the conversation by saying that he had lost confidence in Ms.

[00:05:49] Speaker 02:
Chanel as a supervisor.

[00:05:50] Speaker 02:
The board goes as far to address the undisputed fact of Mr. Atkinson admitting that he pounded on his hand by simply saying that Mr. Atkinson made a

[00:06:05] Speaker 02:
a touching of his left palm with his right hand as a gesture.

[00:06:11] Speaker 02:
Again, we believe that this is the board not acknowledging what the underlying facts had maintained.

[00:06:17] Speaker 05:
Wait, the underlying facts coming from whom?

[00:06:19] Speaker 05:
Wasn't the board relying on other testimony?

[00:06:22] Speaker 02:
That was, what I mean by that, Your Honor, is that was Mr. Atkinson's own testimony.

[00:06:27] Speaker 05:
Was there anybody else confirming that in testimony?

[00:06:30] Speaker 02:
Well, that leads me to the other point, Your Honor, which is.

[00:06:32] Speaker 05:
I mean, I thought your fight was, they didn't, the board refused to allow certain testimony.

[00:06:38] Speaker 05:
I mean, that seems to me that's what it comes down to.

[00:06:41] Speaker 05:
The board had more than enough, given our normal case law, to support the judgment that they reached.

[00:06:48] Speaker 05:
You're trying to whittle into that by saying, but wait, they didn't give due weight to this hearsay.

[00:06:54] Speaker 02:
And I agree, Your Honor.

[00:06:55] Speaker 02:
I think that the main issue here is that the ALJ did not permit the admissible hearsay of Larry Condon to come in.

[00:07:05] Speaker 02:
Mr. Condon is the individual who had a conversation with the Administrator, Ms.

[00:07:10] Speaker 02:
Schnell, immediately after this walk-in.

[00:07:15] Speaker 02:
The Board does not acknowledge

[00:07:18] Speaker 02:
the admissibility of Mr. Condon's testimony and said the board misapplies the facts and says that Mr. Condon's conversation with Ms.

[00:07:28] Speaker 02:
Schnell took place some days.

[00:07:30] Speaker 05:
No, no, that was ALJ.

[00:07:32] Speaker 05:
That was correct.

[00:07:33] Speaker 05:
I'm sorry, Seattle J, Your Honor.

[00:07:35] Speaker 05:
Right.

[00:07:35] Speaker 05:
That was not the board's determination, which is what we're looking at.

[00:07:37] Speaker 02:
That's correct, Your Honor.

[00:07:39] Speaker 02:
It said about an hour afterwards.

[00:07:42] Speaker 02:
And that's what we maintain, is it would have been about an hour afterwards.

[00:07:45] Speaker 05:
The ALJ... Under our case law, you have some problems under the No Present Compression exception and the Excited Utterance exception.

[00:07:53] Speaker 05:
It was about an hour later.

[00:07:55] Speaker 05:
It's kind of hard to fit that within the exceptions.

[00:07:59] Speaker 02:
Well, Your Honor, the Excited Utterance exception, the three prongs, was the event a startling event?

[00:08:05] Speaker 02:
was the statement made under the stress of the excitement caused by the event, and did the statement relate to the events?

[00:08:13] Speaker 02:
And we believe that all three of those prongs, when analyzed, would have been met, certainly under the excited utterance.

[00:08:19] Speaker 02:
The ALJ doesn't evaluate the excited utterance

[00:08:24] Speaker 02:
issue at all, Your Honor.

[00:08:26] Speaker 02:
The only issue that the ALJ addresses is the present sense.

[00:08:32] Speaker 02:
And in that particular instance, Your Honor, the ALJ misapplies the facts that was before him in that he says it occurred some days later.

[00:08:40] Speaker 05:
But the board didn't accept that.

[00:08:42] Speaker 05:
It's the board's findings that we review.

[00:08:45] Speaker 02:
That's right.

[00:08:45] Speaker 02:
And the board took that

[00:08:48] Speaker 02:
of the facts and in regards to an immiscibility issue and made it a credibility issue.

[00:08:54] Speaker 02:
The board says that the ALJ made a credibility issue that Mr. Condon's testimony would not have furthered this prong.

[00:09:05] Speaker 02:
of the Atlantic steel factor test.

[00:09:07] Speaker 02:
What we maintain is the ALJ never addressed that issue because he misapplied the facts in regards to the one exception to the hearsay rule, having never addressed the excited utterance issue to the hearsay rule.

[00:09:20] Speaker 02:
And for that reason, we would maintain that this needs to be remanded so that the board can actually consider the exception to the hearsay rule, which the ALJ never did.

[00:09:31] Speaker 05:
Did the board say anything about it?

[00:09:34] Speaker 05:
One is the question as to whether that was even raised, but let's assume it was.

[00:09:38] Speaker 02:
Yes, Your Honor, and we maintain it was raised.

[00:09:41] Speaker 02:
It was in the underlying brief.

[00:09:44] Speaker 02:
The board maintains that since it was placed in a footnote, that that's not sufficient notice.

[00:09:49] Speaker 02:
We disagree with that.

[00:09:50] Speaker 06:
It's not only in a footnote.

[00:09:52] Speaker 06:
It was subjunctive, right?

[00:09:55] Speaker 06:
Yes.

[00:09:56] Speaker 06:
Where's the footnote?

[00:10:01] Speaker 06:
Where is it?

[00:10:02] Speaker 06:
Here.

[00:10:02] Speaker 06:
Sure.

[00:10:02] Speaker 02:
The footnote.

[00:10:07] Speaker 02:
Absolutely, Your Honor.

[00:10:08] Speaker 02:
The footnote is in the brief in support of exceptions to the ALJ's decision is page 21.

[00:10:13] Speaker 02:
It's footnote 15, Your Honor.

[00:10:15] Speaker 06:
Okay, that's it.

[00:10:18] Speaker 06:
I got it.

[00:10:19] Speaker 06:
Arguably, in this case, Chanel's statement to Condon should have been admitted into evidence under either exception, since Condon testified when he spoke to Chanel after the walk-in.

[00:10:28] Speaker 06:
He could tell from the tone of her voice that she was still very unnerved by the whole experience.

[00:10:33] Speaker 06:
Now, we have said innumerable times that in cases coming from our district court, that asserting an argument in the footnote and not developing

[00:10:54] Speaker 06:
It really is sandbagging the board for not addressing the matter which was raised in the most oblique and terse manner.

[00:11:04] Speaker 06:
Your Honor, I think what... You see the three elements argued in here?

[00:11:08] Speaker 02:
Or did you argue those three elements in your brief to the board?

[00:11:11] Speaker 02:
Those elements were not argued.

[00:11:15] Speaker 02:
Your Honor, what we would maintain is that under consolidated frightways versus the NLRB, a case that's cited by both parties, we maintain that that still was sufficiently specific to preserve the right on appeal.

[00:11:30] Speaker 02:
The cases that the board cite to

[00:11:34] Speaker 02:
specifically UFCW Union Local 204 versus NLRB, is a case where the issue was never raised.

[00:11:43] Speaker 06:
And here we maintain it was asserted, not developed, and not briefed.

[00:11:49] Speaker 05:
And the problem is there's a factorial analysis that the board would have to undergo if it's properly raised and none of that analysis was presented to the board.

[00:11:59] Speaker 05:
And it's the board's decision, you keep saying the ALJ, it's the board's decision that we look to.

[00:12:05] Speaker 05:
And if the board isn't given an opportunity to address something that you're concerned about, then that's a real problem for us.

[00:12:11] Speaker 02:
The only thing that I would add, Your Honor, is that the board didn't address the issue and made a credibility determination off of the ALJs.

[00:12:21] Speaker 02:
incorrect factual assessment, which was the conduct took place some days after when, in fact, I think both parties would agree that the outermost reach here is that the conduct conveying the Chanel conversation with Mr. Condon could only have been at maximum an hour.

[00:12:40] Speaker 05:
The board may have been making a credible – the only credibility determination of consequence, if you didn't raise the excited utterance, would be the credibility determination with the present impression exception.

[00:12:51] Speaker 05:
And there's nothing in firm about that.

[00:12:53] Speaker 02:
Well, but even in regards to the President's exception to the hearsay rule, Your Honor, the board did not, it acknowledged the error and then doesn't do anything to evaluate that error.

[00:13:07] Speaker 02:
And we maintain that that in and of itself is significant because what the ALJ had said

[00:13:12] Speaker 02:
was that took place some days later.

[00:13:14] Speaker 02:
At maximum, I think both parties continue to know.

[00:13:16] Speaker 05:
In fact, it was an hour later, and there were other people who testified in a way that we find credible.

[00:13:21] Speaker 05:
We accept the credibility of the other testifying people.

[00:13:24] Speaker 05:
And so this claim for an exception based on President Prussian doesn't work.

[00:13:28] Speaker 02:
And the only thing that I would say to that, Your Honor, is in the credibility finding, what the board does is make a credibility finding

[00:13:38] Speaker 02:
but does not address the credibility of Mr. Condon because it never had an opportunity to have that testimony heard.

[00:13:46] Speaker 02:
If there's any other questions, I see my time is up.

[00:13:50] Speaker 00:
Okay, thank you.

[00:13:51] Speaker 02:
Thank you.

[00:14:02] Speaker 03:
Good morning, Your Honors.

[00:14:03] Speaker 03:
May it please the Court, Jared Cantor on behalf of the National Labor Relations Board.

[00:14:08] Speaker 03:
Your Honors, the Board's decision in this Atlantic Steel case is supported by substantial evidence in the record and is reasonable, and for those reasons should be enforced.

[00:14:18] Speaker 03:
I will turn into the heat of what seems to be being discussed as the hearsay here.

[00:14:26] Speaker 03:
And I agree, and the board agrees with Judge Edwards and with Judge Ginsburg, that a footnote in your brief in support of exceptions is insufficient for ten key purposes.

[00:14:41] Speaker 03:
If you look at the company's actual exceptions, all they do, which is what the board looks to and the courts normally look to, there's nothing in there about excited utterance.

[00:14:51] Speaker 03:
It is just present sense impression.

[00:14:53] Speaker 03:
And as Judge,

[00:14:54] Speaker 03:
Ginsburg notes, even in their footnote in their brief, it's phrased

[00:15:01] Speaker 03:
somewhat hypothetically, arguably.

[00:15:03] Speaker 03:
And that simply is not enough to put the board on notice that it should do a full analysis or even respond to an argument.

[00:15:12] Speaker 03:
And I think the circuit's case law is pretty clear that this is simply insufficient.

[00:15:17] Speaker 03:
With regards to the present sense impression, and I think we're going round and round on footnote eight specifically of the board's decision, what the board

[00:15:27] Speaker 03:
did there, is the best I read it, is that the board recognized in response to one of the company's exceptions that the ALJ had made that factual error, that Ms.

[00:15:37] Speaker 03:
Snell's conversation with Condon was not some days later, but was somewhere around four o'clock.

[00:15:46] Speaker 03:
So we're talking 45 minutes, 40 minutes, an hour later after the walk-in.

[00:15:51] Speaker 03:
Well, it's got to be less than an hour.

[00:16:04] Speaker 06:
We don't know anymore than that.

[00:16:06] Speaker 06:
Yes, and Mr. So it's less than an hour, but what, whether it's 40 minutes or 50 or 10?

[00:16:12] Speaker 03:
Correct, Your Honor.

[00:16:13] Speaker 03:
As Condon admitted, and he was asked about this, there are no contemporaneous notes from this phone call.

[00:16:19] Speaker 03:
He thought that action was more important, so there are no notes to substantiate really that time frame, just his statement that the call was somewhere around four, or before four or at four.

[00:16:30] Speaker 03:
So the board recognized that that was wrong.

[00:16:33] Speaker 03:
And then what the board notes in its footnote with regards to, and this is responding to the company's challenge under the present-sense impression, was that this is not a motion to eliminate case.

[00:16:48] Speaker 03:
The ALJ did actually hear Condon's full story about what Snell had allegedly told him.

[00:16:55] Speaker 03:
And he also heard from nine witnesses who were at the walk-in, including Atkinson.

[00:17:02] Speaker 03:
And what the board recognized in that footnote was that

[00:17:07] Speaker 03:
Having all of those witnesses testify about this incident, the judge, in constructing his factual summary, his findings of fact recommended to the board as to what happened, went with that, that he credited their story as to how the walk-in was.

[00:17:24] Speaker 03:
And I think it's important to recognize that just because these nine witnesses testified, and we had the hearsay testimony on the other side,

[00:17:31] Speaker 03:
The ALJ, if he thought that these people were essentially making this all up, that they were not credible, could have simply, in his decision, said, I have hearsay testimony over here, and I have all these witnesses, but simply a large number of witnesses doesn't mean I have to find them credible.

[00:17:49] Speaker 03:
I don't buy that this is what actually happened.

[00:17:53] Speaker 03:
But that's not what happened here.

[00:17:54] Speaker 03:
The ALJ heard from all of these witnesses who provided

[00:17:59] Speaker 03:
relatively overlapping, confirming, and mutually corroborative testimony, which the company doesn't dispute any of that.

[00:18:05] Speaker 03:
Many of them went uncross-examined, if I recall correctly, and the ALJ credited them when drafting what happened.

[00:18:13] Speaker 03:
And the board, again, in footnote eight, it does recognize that the ALJ made that factual error when dismissing their present-sense impression argument, but what the board recognizes is that

[00:18:27] Speaker 03:
In any event, we have the credited testimony as to what happened and which by implication implicitly discredits what at that point might have been admissible hearsay.

[00:18:41] Speaker 03:
The board does not do that analysis.

[00:18:44] Speaker 03:
But that was the board.

[00:18:45] Speaker 03:
The company essentially argues it's circular logic.

[00:18:48] Speaker 03:
I think it simply is

[00:18:50] Speaker 03:
it brings it was all issue with time is it up they are you circular and i would just argue that in fact it takes us from problem identified to resolution and maybe that's a circular path but it does resolve problems that they raise what tell me about them so you're out of the the company tried to put in her affidavit she was under subpoena and

[00:19:19] Speaker 03:
Council didn't want to ask the board to enforce it.

[00:19:23] Speaker 03:
She had told them she wasn't going to show there was something about it.

[00:19:28] Speaker 03:
That's what the company's council represented as to why she wouldn't show up, health reasons.

[00:19:34] Speaker 03:
So they decided not to have the board enforce the subpoena.

[00:19:39] Speaker 03:
And what, again, in footnote, the board talks about, and obviously the company is no longer pressing the affidavit issue.

[00:19:48] Speaker 03:
in its brief.

[00:19:49] Speaker 03:
That has dropped out of the case.

[00:19:51] Speaker 03:
Before the board it was still being discussed.

[00:19:53] Speaker 03:
So the board in footnote eight talks about it and essentially its determination there is kind of agreeing with the administrative law judge that one

[00:20:06] Speaker 03:
as for the truth of the matter asserted in her statement she was not in fact unavailable the board rejected that and then in terms of whether it was being offered to show that her testimony had remained constant over time and that no there should be no adverse inference from her failure to testify the board very similar to as i just discussed essentially came to the same conclusion that based on what

[00:20:34] Speaker 03:
the administrative law judge had credited in his findings a fact that this would just be essentially more of the same.

[00:20:41] Speaker 03:
That now we would have another admissible hearsay version of what had happened, and yes, the story was the same, but we have the credited testimony of the witnesses, and so.

[00:20:55] Speaker 06:
Was it the ALJ or the board who said rather, that even if admitted, it would not change the story?

[00:21:05] Speaker 03:
I believe that if, I know the board says that in footnote eight of its decision, it's a very long footnote.

[00:21:11] Speaker 03:
The operative thing I think is the last sentence of footnote.

[00:21:16] Speaker 03:
unnecessary to pass on the judge's hearsay findings with respect to the affidavit, because even had the judge considered it for the purposes I just mentioned, consistency of testimony, that would not change the result here based on, again, the credited evidence.

[00:21:32] Speaker 05:
Wait, read the sent, keep reading, what did the sent say?

[00:21:37] Speaker 05:
Based on what?

[00:21:39] Speaker 03:
based on the credit of credit.

[00:21:42] Speaker 03:
This is on if your honor wants to look at the footnote I have.

[00:21:45] Speaker 05:
No it's okay we can thank you.

[00:21:50] Speaker 03:
I also think it's important to point out as as judge Brown I believe mention this when the company was talking about the other factors in its brief and almost all of the factors it.

[00:22:05] Speaker 03:
slips in or it subtly or sometimes explicitly relies on Schnell's version.

[00:22:10] Speaker 03:
And I think in our brief we go through and usually in footnotes not to interrupt the argument, but point out where when the company is doing its Atlantic steel argument or analysis, it's relying on facts that the board

[00:22:22] Speaker 03:
did not find.

[00:22:24] Speaker 03:
There's a portion of our brief where we, I think, respond to their arguments where they say even the undisputed evidence, so moving away from Schnell's version of what happened, shows that the Atlantic steel weighs in favor of loss of protection.

[00:22:37] Speaker 03:
And again, as we point out in our brief, it's relying on

[00:22:41] Speaker 03:
uncredited testimony, unfound testimony or mischaracterizing or not quite faithfully representing exactly what's revealed in the record evidence.

[00:22:53] Speaker 03:
And so I think that's important to point out based on the argument that they're again making in front of the court in terms of barging in unannounced.

[00:23:01] Speaker 03:
Knocking on a door and being told to come in I think would meet most people's definition of not barging in unannounced.

[00:23:10] Speaker 03:
and again to Judge Brown's point that this is the point of protected conservative activities that groups of employees band together and that they can go to their management and raise their concerns and that there is no requirement that this is necessarily done at the invitation or behest of management at a time and place that management chooses that would very much chill this very important central section seven right.

[00:23:35] Speaker 03:
If there are no further questions for the board on our

[00:23:38] Speaker 03:
We will rest on our brief and ask the court to enforce.

[00:23:41] Speaker 00:
Thank you, Your Honor.

[00:23:41] Speaker 00:
Thank you, Mr. Cantor.

[00:23:44] Speaker 00:
I don't think Mr. Gershengorn had any time left.

[00:23:48] Speaker 00:
We'll give you a minute for rebuttal.

[00:23:53] Speaker 02:
The one thing that I would like to point out, Your Honor, is in regards to footnote eight, where the board says, quote, however, in crediting the testimony of Atkinson and the other employees who had firsthand knowledge of the walking, the judge, the ALJ, implicitly discredited Condon's testimony as to what had occurred.

[00:24:13] Speaker 02:
The ALJ made no such determination, and based upon that, petitioner would maintain, in light of Felix Industries v. LNRB, a case authored by Judge Ginsburg, that the analysis of this third factor

[00:24:29] Speaker 02:
that the board undertook was simply to rubber stamp was, in fact, arbitrary and capricious.

[00:24:34] Speaker 02:
It should go back to the board to evaluate the evidence that was actually before it.

[00:24:40] Speaker 02:
The ALJ himself says that no one offered any admissible testimony.

[00:24:44] Speaker 02:
Well, there was no admissible testimony offered because the ALJ kept out what we maintain is the admissible hearsay testimony.

[00:24:55] Speaker 02:
And so if there are no further questions, Your Honors,

[00:24:58] Speaker 02:
I would rise.

[00:25:00] Speaker 00:
Thank you, Mr Gershengorn.

[00:25:02] Speaker 00:
The case will be