[00:00:01] Speaker 00:
Case number 14-1253, F.L., Osborne Hesse, Logistics LLC, Petitioner vs. National Labor Relations Board.

[00:00:09] Speaker 00:
Mr. Bozzi for the petitioner, Mr. Seid for the respondent, and Mr. Shah, excuse me, for the intervener.

[00:00:37] Speaker 05:
Good morning, Your Honors.

[00:00:39] Speaker 05:
May it please the board.

[00:00:40] Speaker 05:
I'm Ben Bodzie, here on behalf of the petitioner.

[00:00:42] Speaker 05:
I was from Hesse Logistics, commonly referred to as OHL.

[00:00:46] Speaker 05:
There are a number of distinct issues in this appeal.

[00:00:49] Speaker 05:
I want to focus on the ones that relate to this.

[00:00:51] Speaker 05:
Could you bring the mic up a little bit?

[00:00:55] Speaker 03:
If you want to raise the pudding, you can do that.

[00:00:58] Speaker 03:
There's a button down on your right, if that's more comfortable.

[00:01:06] Speaker 05:
I'm going to focus on the issues that relate to the certification because that's the most significant aspect of this appeal.

[00:01:18] Speaker 05:
Your Honors, as it currently stands, the USW won a union election by a vote of 169 to 166.

[00:01:27] Speaker 05:
And there are still three ballots that are disputed in that issue here in this proceeding today that we'd like to address.

[00:01:35] Speaker 05:
And I'll start by explaining the significance of those three ballots.

[00:01:41] Speaker 05:
In board elections, a tie goes to the employer.

[00:01:44] Speaker 05:
So if OHL succeeds on the three ballots that are at issue here today, then it would be a 168 to 168 vote, potentially, which could change the outcome of the election.

[00:01:59] Speaker 05:
It's outcome determinative.

[00:02:00] Speaker 05:
That's why it's significant.

[00:02:03] Speaker 05:
It's important to note that all three of these ballots were ballots that were at issue before the election ever took place.

[00:02:09] Speaker 05:
So Carolyn Jones was a former employee who was allowed to come into the facility and vote because she had filed an unfair labor practice charge relating to her discharge.

[00:02:19] Speaker 05:
So special arrangements were made for her to come and vote, subject to challenge.

[00:02:24] Speaker 05:
The administrative assistants, the two administrative assistants, were

[00:02:30] Speaker 05:
There was an express agreement between the company and the union that recognized that there could be a dispute about whether to include the administrative assistance, and it reserved the issue until after the election.

[00:02:42] Speaker 05:
If it turned out to be outcome determinative, we submit that it is.

[00:02:47] Speaker 05:
So these are all ballots that were in dispute before the election ever took place.

[00:02:54] Speaker 04:
If you lose on Jones, you lose, right?

[00:02:57] Speaker 05:
Yes, Your Honor.

[00:02:58] Speaker ?:
Okay.

[00:03:00] Speaker 05:
And likewise on the administrative system.

[00:03:01] Speaker 05:
Yeah, I understand.

[00:03:04] Speaker 05:
Clearly we have to win all three votes.

[00:03:07] Speaker 05:
Carolyn Jones, I want to start by talking about Carolyn Jones.

[00:03:11] Speaker 05:
Carolyn Jones, she was a strong union supporter.

[00:03:14] Speaker 05:
OHL knew she was a strong union supporter.

[00:03:16] Speaker 05:
That part's not in dispute.

[00:03:18] Speaker 05:
The question here is whether or not her conduct justified her termination, regardless of her union support.

[00:03:26] Speaker 04:
No, the question is whether the ALJ and thus the board's determination that the particular discipline given was

[00:03:34] Speaker 04:
whether or not there's substantial evidence supporting that?

[00:03:39] Speaker 05:
Whether there's substantial evidence supporting it and whether it's a departure from existing board law, that's correct, Judge Edwards.

[00:03:48] Speaker 05:
Let me start with what I think is a legal issue.

[00:03:57] Speaker 05:
The root trucking case.

[00:03:58] Speaker 05:
The board relied on one of its cases called root trucking, which said that if the board establishes pretext, the burden never shifts on your right line to the employer to present its defense.

[00:04:12] Speaker 05:
Root trucking is a case that has never been, the analysis in root trucking has never been adopted by this court before.

[00:04:21] Speaker 05:
And the problem with road trucking is that it changes the fundamental right-line analysis.

[00:04:28] Speaker 05:
So under right-line, there's a prima facie case that the general counsel presents.

[00:04:34] Speaker 05:
And part of that prima facie case is not that the employer's proper reason is pretext.

[00:04:42] Speaker 05:
But what the board does is they say, well, if the general counsel proves pretext, we don't even examine whether the employer's proper reason would have led to the disciplinary action.

[00:04:59] Speaker 05:
And part of the problem here is that in Sutter v East Bay, Sutter v East Bay Hospital v NLRB, this court specifically said that it's the employer's honest belief

[00:05:14] Speaker 05:
that the employee engaged in the misconduct that matters.

[00:05:18] Speaker 05:
So when you skip straight to pretext, you're skipping over the honest belief analysis, which is a problem from our perspective, and it departs from Rightline.

[00:05:32] Speaker 05:
Because the analytical framework of Rightline is that the employer presents

[00:05:37] Speaker 05:
It's it's evidence after the general counsel proves a prime official case.

[00:05:42] Speaker 03:
Are you asking us to repudiate rude trucking?

[00:05:48] Speaker 05:
Yes, your honor.

[00:05:48] Speaker 05:
I think it departs from existing board law in that it changes the right line framework that this court has recognized applied repeatedly.

[00:05:59] Speaker 03:
Why is it not just an application of right line in a case in which

[00:06:04] Speaker 03:
there is not a separate, legitimate, and non-infringing reason.

[00:06:13] Speaker 03:
I mean, the inquiry in the typical Mount Healthy right line case is whether there is either one reason, the genuineness and legality of which is in dispute, in which case

[00:06:32] Speaker 03:
once it's shown that the profit reason is protectual, then you're done.

[00:06:36] Speaker 03:
Or is it a case where there are two separate reasons, and the question is, would the employer have made the same decision based on the legitimate reason?

[00:06:45] Speaker 03:
And I take this to be in the former category of cases, so I'm just not sure why you see Root as in tension with Rightline.

[00:06:52] Speaker 03:
I'm not sure I see that tension.

[00:06:54] Speaker 03:
If you could spell that out more.

[00:06:55] Speaker 05:
Sure.

[00:06:56] Speaker 05:
So under the Rightline framework,

[00:07:02] Speaker 05:
The employer's burden doesn't kick in until the general counsel proves their prima facie case, right?

[00:07:12] Speaker 05:
The employer, analytically, you don't reach the employer's legitimate non-retaliatory justification until the general counsel proves its case, its prima facie case.

[00:07:23] Speaker 05:
And essentially what Root does is it adds a fifth element to the prime official case, pre-taxed, where if the general counsel approves pre-taxed, you then never shift the burden to the employer.

[00:07:36] Speaker 04:
There's no place in that analytical framework for the board to consider the employer's legitimate... Oh, but in this case, I mean, I think I understand what you're saying, but in reality, all of that's being considered here.

[00:07:51] Speaker 04:
Obviously, the employer obviously had an opportunity to present its defense, and in the end, the board said, we hear you, it's protectual.

[00:08:02] Speaker 04:
The board didn't say you're foreclosed from presenting what you feel is a legitimate reason for discharge.

[00:08:12] Speaker 04:
They said, we hear you, and you know what?

[00:08:14] Speaker 04:
You're treating her differently.

[00:08:17] Speaker 04:
then you have treated people in the past, and therefore your argument goes nowhere.

[00:08:24] Speaker 04:
She was a strong union adherent, and our determination is, when we look at what you've done in the past as compared to her, it's not the same.

[00:08:33] Speaker 04:
And so we're concluding it's protectual.

[00:08:37] Speaker 05:
Okay.

[00:08:39] Speaker 05:
Your Honor,

[00:08:41] Speaker 05:
I understand your question, and let me address the question of whether it was protectable, and get away from the re-tracking.

[00:08:50] Speaker 03:
Actually, let me just, before you get away, I do want you, I don't want to interrupt and prevent you from answering that, but just to clarify, was there a burden that you thought the general counsel should have borne, that the general counsel didn't bear, and or was your client deprived of any opportunity to put something forward

[00:09:09] Speaker 03:
that it would have put forward.

[00:09:10] Speaker 03:
That would help me understand where you think the error, if any, is in the burden shifting analysis.

[00:09:15] Speaker 05:
Right.

[00:09:15] Speaker 05:
And the answer to that question is, because the board went straight to the pretext analysis,

[00:09:26] Speaker 05:
It's not clear whether the board was just listening to the arguments of general counsel because the burden had never shifted to OHL or whether the board was taking into account the arguments that OHL was putting forward as well.

[00:09:42] Speaker 03:
So you're not contending that the

[00:09:45] Speaker 03:
that there were arguments and proof that Osborne-Hesse had that it was not given an opportunity to put forward.

[00:09:52] Speaker 03:
It's more about the conceptual framework that you're inferring the ALJ was applying.

[00:09:58] Speaker 05:
That's right.

[00:09:59] Speaker 03:
OK.

[00:09:59] Speaker 03:
So proceed now and talk about, you were going on to talk about the evidence.

[00:10:03] Speaker 05:
I was going to talk about the pretext evidence.

[00:10:07] Speaker 05:
And recall here, the allegation is that,

[00:10:14] Speaker 05:
Mr. Jones called Lee Smith in UT repeatedly, and then she explained that that meant Uncle Tom.

[00:10:23] Speaker 05:
And this court has recognized that Uncle Tom is a phrase that was racially charged, I believe was the language.

[00:10:32] Speaker 04:
Well, that isn't the point.

[00:10:33] Speaker 04:
I mean, that's all correct.

[00:10:35] Speaker 04:
But I have the record say 10 times or something like that over a period of time.

[00:10:41] Speaker 04:
And was she ever disciplined or warned for any of that until the last time?

[00:10:49] Speaker 05:
She was disciplined when it came to OHL's attention.

[00:10:52] Speaker 05:
I mean, when it was brought to management's attention, that's when the termination was.

[00:10:58] Speaker 04:
But no one until that last moment had said, you're skating on thin ice, or you're doing something wrong, or we're going to take initial action against you.

[00:11:07] Speaker 04:
Nothing.

[00:11:08] Speaker 05:
Well, there's no evidence in the record that OHL had knowledge of the UT comments prior to the investigation that led to her termination.

[00:11:16] Speaker 04:
Well, then how can you count the ten times as ten times, as opposed to the first time the company found out about it?

[00:11:22] Speaker 04:
The first time the company finds out about these things, they don't discharge people.

[00:11:25] Speaker 04:
That's the whole point.

[00:11:27] Speaker 04:
Well, actually... It's not like she killed someone and it was a long delay before the company found out.

[00:11:33] Speaker 04:
She'd used racial epithets.

[00:11:36] Speaker 04:
Nothing was done.

[00:11:37] Speaker 04:
It was in a company setting.

[00:11:39] Speaker 04:
It's hard to think that no supervisor or anyone else would know anything.

[00:11:42] Speaker 04:
But in any event, nothing happened, and then the company acts the 11th time or the 10th time.

[00:11:51] Speaker 04:
And in all the cases, all the comparables on the first incident in which the company acts, they don't discharge people.

[00:12:00] Speaker 05:
A couple of things, Your Honor.

[00:12:01] Speaker 05:
OHL acted on the very first time that it was brought to OHL's attention.

[00:12:05] Speaker 05:
And there's no evidence in the record that OHL had knowledge of the UT comments prior to the investigation that led to her discharge.

[00:12:13] Speaker 04:
But there is evidence that the company used progressive discipline routinely, right?

[00:12:18] Speaker 05:
there is evidence that the company used progressive discipline in other contexts, and that's part of the issue that we've raised here, Your Honors, whether the comparators are actually similarly situated or not.

[00:12:29] Speaker 05:
There was not an analysis done by the board of whether the comparators were similarly situated or not, and it's our position.

[00:12:35] Speaker 04:
Well, I mean, let me just tell you, as a reader looking at it, it leaks out.

[00:12:39] Speaker 04:
It's the first incident.

[00:12:42] Speaker 04:
Things go on, and the company doesn't deal with it, and then the first time they deal with it, there are comparatives for that.

[00:12:48] Speaker 04:
They're not.

[00:12:49] Speaker 04:
And I think that's what the board was saying.

[00:12:51] Speaker 04:
This isn't the way you typically handle this.

[00:12:55] Speaker 05:
Your Honor, the only other employee that repeatedly used racial epithets, Ashley Burgess, was terminated.

[00:13:02] Speaker 05:
And the other comparators used grossly inappropriate.

[00:13:08] Speaker 05:
Was Burgess?

[00:13:10] Speaker 05:
Is that who you just said, Burgess?

[00:13:11] Speaker 05:
Yes, sir.

[00:13:11] Speaker 05:
Were there some prior warnings?

[00:13:17] Speaker 05:
I don't believe so, but an overhaul, exactly, right now.

[00:13:23] Speaker 05:
All of the other comparators or alleged comparators were disciplined for versely inappropriate conduct.

[00:13:32] Speaker 05:
Here, there's a violation of the anti-harassment policy.

[00:13:35] Speaker 05:
And for obvious reasons, OHL has to take prompt remedial action when this is brought to its attention to avoid liability.

[00:13:43] Speaker 05:
There's a distinction between grossly inappropriate conduct and racially charged conduct.

[00:13:50] Speaker 05:
And that's why we submit that the comparators are not similarly situated.

[00:13:53] Speaker 05:
There was no discussion of that at the board level.

[00:13:57] Speaker 05:
I believe I'm into my rebuttal time at this point.

[00:14:00] Speaker 05:
So.

[00:14:01] Speaker 03:
Why don't you finish the point you're making, and we'll give you some rebuttal time.

[00:14:05] Speaker 05:
OK.

[00:14:07] Speaker 05:
The other point, Your Honors, is the issue with the independent reason for her termination.

[00:14:12] Speaker 05:
Another independent reason for her termination was that she fabricated a witness statement.

[00:14:17] Speaker 05:
And when I say fabricated a witness statement, she had witnesses sign the statement before she actually wrote the content of the statement.

[00:14:26] Speaker 05:
Now, the board

[00:14:30] Speaker 05:
said, well, OHL later forced witnesses to sign statements that said that there was a blank, that the statement was blank about the names.

[00:14:44] Speaker 05:
We submit and we explain in our brief why the evidence just did not support that at all.

[00:14:52] Speaker 05:
There was only one

[00:14:54] Speaker 05:
witness who testified about anything that remotely comes close to coercion by OHL.

[00:14:59] Speaker 05:
And all his testimony was was I signed it because I was stressed.

[00:15:05] Speaker 05:
He didn't say because OHL stressed me out.

[00:15:07] Speaker 05:
He didn't say why he was stressed.

[00:15:09] Speaker 05:
The word he used was I signed it because I was stressed.

[00:15:11] Speaker 05:
So we don't think there's any record evidence to support that.

[00:15:16] Speaker 05:
But regardless,

[00:15:17] Speaker 05:
Whether or not OHL course statements from witnesses later doesn't change the fact that all of the witnesses testified that they never saw Carolyn Jones' statement before they signed.

[00:15:30] Speaker 05:
And she presented it to OHL as a completed witness statement.

[00:15:36] Speaker 05:
the board got off on a tangent on whether or not OHL subsequently coerced statements, but that doesn't change the fact of what Carolyn Jones did based on the undisputed testimony of the general counsel's witnesses in this case.

[00:15:52] Speaker 05:
And I see that I'm out of time, so if the court doesn't have any other questions, I'll reserve the rest for her both.

[00:15:59] Speaker 03:
Thank you.

[00:16:17] Speaker 02:
Good morning, Your Honor.

[00:16:18] Speaker 02:
David Seid for the Labor Board.

[00:16:21] Speaker 02:
I would like to begin by drawing attention to the court regarding the three new and shifting arguments the company made in its reply brief regarding the discharge of Carolyn Jones.

[00:16:31] Speaker 02:
First, in the reply brief, the company asserts that the only comparable employees could be the two employees specifically disciplined under its anti-harassment policy.

[00:16:40] Speaker 02:
That's in direct contradiction with the argument made before the board, and in its opening brief, that the only comparable employee would be employee burges.

[00:16:49] Speaker 02:
And as I noted in response to Judge Edwards' question, the board distinguished employee burges on a number of grounds, including that she had been previously warned for various crimes.

[00:16:57] Speaker 04:
There was a prior warning and three-day suspension.

[00:17:00] Speaker 02:
That's correct, Your Honor.

[00:17:02] Speaker 02:
The second new argument the company raises for the first time is the reliance that it was concerned over permitting a hostile work environment, that there was simply no evidence that it relied on that factor at the time of the discharge, nor was it raised in the opening brief.

[00:17:17] Speaker 02:
And the third new argument it raises in the reply brief is with respect to the alleged fabrication of evidence over the statement that was prepared by Ms.

[00:17:26] Speaker 02:
Jones over the threat to watch her back.

[00:17:28] Speaker 02:
The company asserts in the reply brief that there's no evidence that the employees you signed saw or fully read her statement.

[00:17:36] Speaker 02:
That's a very different argument than claiming as it had earlier before the board ended its opening brief that there simply was no statement for those employees to even sit, that she completely fabricated it after the fact.

[00:17:50] Speaker 02:
Now these new arguments of course are not probably before the court, but the fact that at this late date the company is still adding and changing its arguments as to why it lawfully discharged Carolyn Jones does add further support for the board's finding that the discharge was unlawful.

[00:18:08] Speaker 02:
And if I could just touch on one other point with respect to the right-line analysis, very simply, the company hasn't asserted how the board aired here in the application, putting aside that what the board did in the rear trucking case is no different than what it's been doing for the last 30 years.

[00:18:24] Speaker 02:
But very simply, in this case, the board first addressed an affirmative case to find out, to make the finding that the discharge was unlawfully motivated.

[00:18:35] Speaker 02:
And then very specifically, pages 746 and 747 of the appendix went through an early two-page discussion of the reasons that were asserted by the company and why it found a merit to them and ultimately found that there were pretextual reasons.

[00:18:52] Speaker 02:
With respect to the other findings made by the board in both the unfair labor practices, as well as with respect to whether it made the proper unit determination as far as excluding the two employees from the unit, those are simply evidentiary findings, credibility findings, and are amply supported by the record.

[00:19:14] Speaker 02:
And unless this court has any specific questions, the board would simply ask that it enforce the unfair labor practice findings and the finding that the company have an obligation to argue with the union.

[00:19:25] Speaker 04:
There was one other employee.

[00:19:28] Speaker 04:
I just want to make sure I have the record right.

[00:19:30] Speaker 04:
Employee Jay Smith, also a similar offense, was not initially fired, right?

[00:19:38] Speaker 04:
That's correct, Your Honor.

[00:19:38] Speaker 04:
All right, so the comps of Burgess and Smith, and they were not initially fired.

[00:19:43] Speaker 02:
That's correct your honor.

[00:19:47] Speaker 02:
Thank you.

[00:19:48] Speaker 03:
Thank you.

[00:20:02] Speaker 01:
Good morning, Your Honors.

[00:20:03] Speaker 01:
I'm Katherine Shaw on behalf of the intervener United Steelworkers.

[00:20:08] Speaker 01:
I wanted to add that the company is also asking this court to hold that an employer cannot be found to have engaged in discipline unless there's an identical comparator.

[00:20:20] Speaker 01:
The board's decision shows that the only person who was discharged for

[00:20:31] Speaker 01:
inappropriate language was actually Burgess.

[00:20:33] Speaker 01:
In that case there was a prior warning and there was also a connected assault.

[00:20:43] Speaker 01:
In this case

[00:20:46] Speaker 01:
The company has also not demonstrated that it had a good faith belief that Jones had fabricated a witness statement, given that its reported good faith belief was based on the self-serving statements that it coerced employees into signing.

[00:21:01] Speaker 01:
In addition to saying that one of the witnesses was stressed about being asked to sign the statement, he said that he only signed it because he wanted this meeting with management to end.

[00:21:17] Speaker 03:
If there are no questions that are... There's no testimony that the statements, as they ultimately came out, did not represent the views of the individuals.

[00:21:32] Speaker 03:
There was a question of when they were filled in, but is there any allegation that they actually misrepresented the substantive views of the individuals?

[00:21:41] Speaker 01:
No, the credited witness testimony was that the Carolyn Jones witness statement

[00:21:47] Speaker 01:
that she asked employees to sign was a substantially accurate description of what had happened.

[00:21:54] Speaker 01:
All of the witnesses who signed that statement said that it reflected what they had witnessed.

[00:22:01] Speaker 01:
By contrast, the statement that they were asked to sign by the company was inaccurate.

[00:22:08] Speaker 01:
On that basis, I do not believe that the company has demonstrated that they had a good faith belief that she had submitted a false witness statement.

[00:22:20] Speaker 01:
Additionally, the company took no steps to discipline Phil Smith, who actually did provide a false statement regarding the incident.

[00:22:29] Speaker 01:
This is the supervisor who threatened Carolyn Jones.

[00:22:33] Speaker 01:
Seems everybody in this case is named Smith.

[00:22:35] Speaker 01:
I think there are six Smiths.

[00:22:46] Speaker 03:
I wonder if you could address just briefly the surveillance and impression of surveillance claims that the company argues that they are allowed to observe in the course of interactions with employees.

[00:22:58] Speaker 03:
And the ALJ found that this was something more.

[00:23:01] Speaker 03:
And how do you defend that on this record?

[00:23:05] Speaker 01:
As to the surveillance, the allegation regarding observation of union hand billers in the company parking lot, although an employer may lawfully

[00:23:16] Speaker 01:
observe employee activities on company premises, it engaged in unlawful surveillance in this situation because it engaged in out of the ordinary surveillance of the union hand billers.

[00:23:28] Speaker 01:
There are two individuals, John McNamee, who is the director of risk management, and Randall Coleman, the senior vice president, who both engaged in highly out of the ordinary activity

[00:23:40] Speaker 01:
walking out to their cars, walking around, looking alternately at the ground and at their cell phones for five to ten minutes, looking at the hand billers.

[00:23:53] Speaker 01:
They gave very inconsistent testimony about what the purpose of their presence in the parking lot was.

[00:23:59] Speaker 01:
Initially,

[00:24:01] Speaker 01:
The director of risk management, John Matthews, stated that he had not observed the hand billers.

[00:24:07] Speaker 01:
As his testimony proceeded, he admitted that, well, yes, he had observed them.

[00:24:13] Speaker 01:
And although he initially stated that he did not know whether or not they were union supporters, he eventually admitted that he presumed that they were union supporters engaging in hand billing.

[00:24:28] Speaker 01:
So this type of surveillance is coercive because it is out of the ordinary, and it leads employees to believe that their union activities are being observed and that they may face retaliation from the company because of their support for the union.

[00:24:44] Speaker 03:
And is that the only guidance, legal guidance for the ALJ, is whether it's out of the ordinary and just looking at the circumstances as a whole?

[00:24:52] Speaker 03:
There's not any more.

[00:24:54] Speaker 03:
there's not anything more specific for the company where they're, you know, presumably they're allowed to go look at something that is itself out of the ordinary when the employees congregate together, but they have to be cognizant of some limit.

[00:25:14] Speaker 03:
And I'm just trying to think from the employer's perspective, how do they know when they're getting close to that line?

[00:25:20] Speaker 01:
Well, I think it is a line that the board has to draw and that, for example, in Aladdin Gaming, which was cited by the company, there was no surveillance violation because the supervisors, although they observed union activity in the employee or the company dining room,

[00:25:42] Speaker 01:
that their presence there was not so suspicious that it would cause employees to be aware that they were being surveilled and fearful about retaliation.

[00:25:54] Speaker 01:
In this case, the surveillance was so strange and out of the ordinary that it

[00:26:03] Speaker 01:
was unreasonable to believe that that activity by those two supervisors would have occurred if they were not specifically seeking to surveil those union supporters.

[00:26:17] Speaker 03:
Thank you, Michelle.

[00:26:18] Speaker 03:
Thank you.

[00:26:23] Speaker 03:
Mr. Bazzi, if I can keep you to two minutes for rebuttal time.

[00:26:26] Speaker 05:
Sure.

[00:26:27] Speaker 05:
A couple of points.

[00:26:29] Speaker 05:
Judge Edwards, you mentioned Jay Smith, Jennifer Smith.

[00:26:33] Speaker 05:
And actually, Jennifer Smith is part of these proceedings.

[00:26:37] Speaker 05:
The discipline that was issued with Jennifer Smith is actually before the court today.

[00:26:41] Speaker 04:
I understood that when I looked.

[00:26:44] Speaker 04:
Trying to get all these names straight.

[00:26:46] Speaker 04:
Right.

[00:26:46] Speaker 05:
And there are a lot of Smiths in this case.

[00:26:47] Speaker 05:
And I'm not going to use the actual language, but Jennifer Smith used a racial epithet towards a co-worker, but she's claiming that she was also an open and obvious union supporter, and she's claiming that she was disciplined because of her

[00:27:05] Speaker 05:
union support.

[00:27:07] Speaker 05:
So I don't think it serves as a comparator to Carolyn Jones because they were both union supporters.

[00:27:15] Speaker 05:
So there's no argument that OHL treated Carolyn Jones more harshly on the basis of her union support when Jennifer Smith was also a union supporter.

[00:27:26] Speaker 05:
So just wanted to address that.

[00:27:28] Speaker 05:
In terms of the good faith belief

[00:27:30] Speaker 05:
or the honest belief.

[00:27:33] Speaker 05:
Was Jennifer Smith fired initially?

[00:27:35] Speaker 05:
She was not, Your Honor.

[00:27:36] Speaker 05:
She was doing the written warning.

[00:27:38] Speaker 05:
That's the point.

[00:27:39] Speaker 05:
Okay.

[00:27:39] Speaker 05:
Well, the distinction that was drawn, and it's drawn in our briefs, is that she had a heated verbal exchange with another employee where that comment was made, as opposed to

[00:27:53] Speaker 05:
Targeting an employee and going to them over here.

[00:27:57] Speaker 04:
Yeah, I hear you would differ about One the input.

[00:28:00] Speaker 04:
I understand you.

[00:28:02] Speaker 05:
Okay in in terms of the good faith belief

[00:28:09] Speaker 05:
Actually, let me skip to the statements accuracy.

[00:28:13] Speaker 05:
Judge, you asked the question about whether it mattered or whether there was any contention that the statement that was ultimately written above the signatures was true or not.

[00:28:23] Speaker 05:
And your honor, I'd submit the issue is not whether or not it was

[00:28:27] Speaker 05:
true or accurate, it's whether she wrote it in after collecting signatures of the witnesses.

[00:28:34] Speaker 05:
It goes to the integrity of the investigation.

[00:28:35] Speaker 05:
That's the issue, not whether the statement was true or not.

[00:28:41] Speaker 05:
In terms of the discussion of surveillance being out of the ordinary, out of the ordinary is the legal standard.

[00:28:51] Speaker 05:
And

[00:28:53] Speaker 05:
it's important to remember that Mr Coleman worked in the building that he was standing outside of.

[00:28:59] Speaker 05:
Um, and Mr McAmey was in town to see Mr Coleman.

[00:29:03] Speaker 05:
So the fact that they were standing outside of a building in a parking lot is not, um, not out of the ordinary.

[00:29:10] Speaker 05:
We would say that.

[00:29:12] Speaker 03:
Thank you.

[00:29:12] Speaker 03:
Thank you.

[00:29:13] Speaker 03:
Cases submitted.