[00:00:02] Speaker 00: Case number 14-1231 at L, Quicken Loans, Inc. [00:00:05] Speaker 00: Petitioner vs. National Labor Relations Board. [00:00:08] Speaker 00: Mr. J for the petitioner, Mr. Salter for the respondent. [00:00:12] Speaker 00: Mr. Jay. [00:00:13] Speaker 04: Good morning, Your Honor. [00:00:14] Speaker 04: May it please the Court. [00:00:15] Speaker 04: William Jay from Goodwin Proctor for the petitioner Quicken Loans. [00:00:18] Speaker 04: In this case, the Board committed a two-fold error in concluding that Quicken's agreement interferes with protected Section 7 rights. [00:00:24] Speaker 04: The Board set the floor too high and the ceiling too low. [00:00:28] Speaker 04: And by that I mean the Section 7 does not protect everything that the Board said that it protects, and the agreement does not prohibit everything that the Board said that it prohibits. [00:00:37] Speaker 04: So let me go through that in turn. [00:00:40] Speaker 04: The board relied in part on the notion that addresses, phone numbers, and the like are prohibited from dissemination by this agreement. [00:00:50] Speaker 04: And the agreement certainly does prohibit employees from disseminating their co-workers' personal information. [00:00:57] Speaker 04: That's in the personnel information provision at page 33. [00:01:00] Speaker 04: But it does not prohibit them from disseminating their own. [00:01:04] Speaker 04: And because the first word in the relevant provision is non-public, it also doesn't prevent them from disseminating their co-workers' information with consent. [00:01:13] Speaker 06: Can I just ask you a fact question? [00:01:16] Speaker 06: The general counsel's complaint in this case, did it cover a time period when Ms. [00:01:24] Speaker 06: Garza was actually employed by your company? [00:01:28] Speaker 06: Or was it after she'd already left, just for jurisdictional purposes? [00:01:34] Speaker 04: The complaint, I believe, the complaint was filed after she'd left the company. [00:01:40] Speaker 04: I'm not sure of the answer. [00:01:43] Speaker 04: We'll maybe try and answer it on the phone. [00:01:47] Speaker 06: You don't happen to know if that jurisdictional issue is jurisdictional in our sense of the word? [00:01:52] Speaker 06: In the Hyundai case they talked about jurisdiction there and actually whether the complaints asserted by the general counsel tied to the specific complaining employee and so that's why I'm asking because in this case I know she'd left and that was the genesis of their dispute with her on allegations of taking proprietary information. [00:02:13] Speaker 06: I was just trying to make sure there was some overlap. [00:02:16] Speaker 04: I believe the answer to that is yes in terms of time period, but before I speak at a school, let me try and address that when I stand back up. [00:02:26] Speaker 04: And I'm sure the board has a view as well. [00:02:28] Speaker 04: The address and phone number provision is one of the things that we find most problematic about this because [00:02:36] Speaker 04: employer has a valid interest in protecting its employees' personal information from dissemination. [00:02:42] Speaker 04: And what this policy does is it prevents employees from taking the entire phone book, the entire list of email addresses, and walking out the door with it. [00:02:49] Speaker 04: There's no protected Section 7 right to do that. [00:02:53] Speaker 04: what this court decided in the community hospitals case, and I think the Seventh Circuit also in the analogous certified grocers case, recognized that it would be absurd to read an agreement of a general prohibition on the dissemination of personal information to prohibit employees from coming home and sharing their pay stub or their address with an accountant, a spouse, or a co-worker. [00:03:17] Speaker 06: What about if two employees were talking, one supporter of the union and the other one trying to persuade that person and they say, look, can I give you your email address to the union representative? [00:03:33] Speaker 06: They can send you exactly the information you've been asking me about. [00:03:36] Speaker 06: Would that violate the policy? [00:03:38] Speaker 06: It would not, Your Honor. [00:03:38] Speaker 06: Because how do I know that from the text of the policy? [00:03:41] Speaker 04: I think the key word is nonpublic, which is the first word in the relevant [00:03:46] Speaker 04: proprietary confidential information. [00:03:48] Speaker 04: Well, her email's not public. [00:03:49] Speaker 04: Who would say her email's not public? [00:03:51] Speaker 04: I would say, well, two things. [00:03:53] Speaker 06: Or phone number, whichever you like. [00:03:54] Speaker 04: Two things about that. [00:03:54] Speaker 04: I think that it would no longer be non-public in the relevant sense. [00:04:01] Speaker 04: And I think the way that we can see that is to look at the purpose of the policy, which is at page 20 of the Joint Appendix. [00:04:06] Speaker 04: And you'll see that at that spot, the purpose of the policy is to protect confidence. [00:04:12] Speaker 04: This is B3, letter D. [00:04:16] Speaker 04: confidential and proprietary information belonging exclusively to the company. [00:04:20] Speaker 04: Now, a list of everybody's email addresses fits that description. [00:04:23] Speaker 04: But an individual's address or phone number or email address doesn't fit that description. [00:04:27] Speaker 04: The employer, Quicken Loans, is not trying to prohibit people from sharing their own addresses or phone numbers with each other. [00:04:34] Speaker 04: Sending a holiday card with a return address on the envelope does not violate this policy. [00:04:38] Speaker 00: I think you said it would no longer be non-public. [00:04:41] Speaker 00: What did you mean by that? [00:04:44] Speaker 04: Well, I don't think it would be non-public at all in the relevant sense, but I guess I was sort of thinking ahead to the next issue. [00:04:53] Speaker 04: I do think that an employee who knew highly confidential information about him or herself can disseminate that however she wants, even if employees of the company could not. [00:05:04] Speaker 04: So if an employee wants to talk about her own disciplinary history, [00:05:06] Speaker 04: I think that we know that from the text of the policy. [00:05:09] Speaker 04: Again, this is page 32. [00:05:11] Speaker 06: What happened with wages? [00:05:12] Speaker 06: I know Quicken Loans has, or it sounds like it has on its website, the range of payment for, say, the mortgage. [00:05:23] Speaker 06: The mortgage sellers. [00:05:24] Speaker 06: So you publicize a range of $30,000 to $50,000 for salaries a year. [00:05:30] Speaker 06: And that's obviously out there in public. [00:05:32] Speaker 06: But I take it that this prohibition would prohibit somebody from telling the union what their co-worker's salary is? [00:05:41] Speaker 04: I think it would – let me answer that carefully. [00:05:43] Speaker 04: I think it would prohibit someone who worked in the finance department from pulling out a spreadsheet of everyone's salary and giving that to the union. [00:05:50] Speaker 06: Yes, and I think – Okay, but then my question is if a coworker wanted to tell the union representative – or if a worker wanted to tell what a coworker's salary was. [00:05:57] Speaker 04: I think if the coworker had shared that with – that's exactly what I was trying to get to with my answer to Judge Srinivasan a moment ago. [00:06:03] Speaker 04: I think if the coworker wants to share that with their [00:06:06] Speaker 04: coworker one shares it with coworker two, and coworker two wants to pass it along to the union. [00:06:10] Speaker 04: That has not been disseminated in violation of the policy, because it was initially let out of the circle of trust, or the cone of silence consistent with the agreement. [00:06:19] Speaker 06: What if there wasn't communication? [00:06:20] Speaker 06: What if, in fact, as it turns out, and I won't say this is quick in loans, because the company X has a public range of salaries from $30,000 to $50,000, and as it turns out, all women get $30,000 and all men get $50,000? [00:06:33] Speaker 06: So the public range is out there. [00:06:35] Speaker 06: And without getting the consent of other employees, but knowing that this is a problem, somebody who is pro-union wants to let the union know that you've got this huge problem going on here. [00:06:46] Speaker 06: This is something that you can use to promote what the union can do to help people. [00:06:53] Speaker 04: Well, I think that the purposes to which it can be put don't necessarily override the employer's valid purposes. [00:07:00] Speaker 06: It would violate your policy to disclose that disparity to the union. [00:07:07] Speaker 04: Well, I think that saying, I downloaded the spreadsheet off of the system and I shared it with you. [00:07:11] Speaker 06: You're changing my question. [00:07:12] Speaker 06: for obvious reasons. [00:07:13] Speaker 06: But I just want to tell the union that I know we women are getting $30,000, and they're getting $50,000. [00:07:20] Speaker 06: And the men are getting $50,000. [00:07:21] Speaker 06: And I'm not going to get the consent of every male employee. [00:07:24] Speaker 06: But I want to tell the union that. [00:07:25] Speaker 06: They need to know about that. [00:07:27] Speaker 04: I guess if I may ask, Your Honor, in your hypothetical, where's the knowledge coming from? [00:07:32] Speaker 04: Where the employee's knowledge is coming from? [00:07:34] Speaker 04: Where all employee knowledge comes from, gossip. [00:07:37] Speaker 04: I don't think that would be prohibited, Your Honor. [00:07:39] Speaker 04: I think that what's protected, because what's not being dealt with there is confidential and proprietary information. [00:07:46] Speaker 04: It's not public at all. [00:07:47] Speaker 04: Belong exclusively to the company. [00:07:48] Speaker 05: Who gets what is not public at all. [00:07:49] Speaker 05: Pardon? [00:07:50] Speaker 05: Who gets what is not public at all on wages. [00:07:52] Speaker 04: But in Your Honor's hypothetical, you're not actually disclosing who gets what. [00:07:56] Speaker 04: You're disclosing your own speculation about who gets what. [00:07:59] Speaker 04: You're disclosing cafeteria gossip about who gets what. [00:08:01] Speaker 06: Well, three of the male employees told me what they got. [00:08:04] Speaker 04: I thought it was a statistically significant sample, so I can now infer, but... I think that the disclosure and the inference are both fine under the proprietary confidential information provision. [00:08:15] Speaker 06: What would not be fine would be... How does some employee know that? [00:08:19] Speaker 04: So I think that the purpose provision is one way of knowing that. [00:08:25] Speaker 04: I think that in attachment A, page 32 of the appendix, section A, subdivision I, information that was otherwise proprietary confidential information of the company, but which was disclosed or disseminated in violation of this agreement. [00:08:42] Speaker 04: In other words, you can't violate the agreement and disseminate things. [00:08:45] Speaker 06: But because you can disseminate your own information, information that individuals have a right to disseminate is not proprietary or confidential information, because it's not... And how do they know the disseminated information about my co-workers, whether based on gossip, speculation, inference from a small number, or I saw the pay stub laying on the corner of the desk? [00:09:05] Speaker 04: Ultimately, Your Honor, I think that the two provisions that I've pointed to, if you've gained the information, not in violation of the agreement, that you're free to disclose it. [00:09:17] Speaker 04: But ultimately, we don't have a full evidentiary record on which to answer that question. [00:09:22] Speaker 04: Because how a reasonable employee would have understood this agreement, Quicken Loans was barred from introducing evidence about that very subject. [00:09:30] Speaker 04: about how it was enforced and how it would be implemented through instructions from managers. [00:09:37] Speaker 04: None of that was allowed to come in at the hearing. [00:09:38] Speaker 04: We think that that was a legal error. [00:09:40] Speaker 04: But ultimately, I don't think we need to persuade you of that evidentiary point. [00:09:44] Speaker 04: I think that we're correct on the text. [00:09:45] Speaker 00: So your view is that no reasonable employee could look at the policy and reach the conclusion that it would bar? [00:09:52] Speaker 00: the dissemination of the sorts of things that Judge Millett's hypothetical raised. [00:09:55] Speaker 04: I think that's right, Your Honor. [00:09:56] Speaker 04: And I think that that is correct, just as no reasonable employee in community hospitals and in certified grocers could have read the prohibitions as applying to their own information. [00:10:11] Speaker 04: I think that it's common sense to a reasonable mortgage banker at Quicken Loans that they're a... May I complete the answer? [00:10:17] Speaker 04: common sense to a reasonable mortgage banker, Quicken Loans, that they're able to discuss this information with each other. [00:10:25] Speaker 04: They're able to share it outside the company. [00:10:27] Speaker 04: What they're not able to do is take the company's databases, lists, metrics, and other – this is a term from the agreement – and other compilations. [00:10:36] Speaker 04: and share that willy-nilly, just as in, for example, the board's decision in IBM from 1982, information wrongly taken from the company can't be shared, even though individuals can share their own wage information. [00:10:52] Speaker 01: Couldn't a company have prevented this unfair labor practice complaint by putting a better, I guess, exception or disclaimer [00:11:03] Speaker 01: in its policy to make clear that notwithstanding the above, that sharing of information regarding terms, conditions, et cetera of employment can be shared to effectuate your rights under the NLRA. [00:11:29] Speaker 04: Three points on that, Your Honor. [00:11:31] Speaker 04: First, certainly that could be done, but the question is not how the agreement could have been better drafted, but whether a reasonable employee here would have read it. [00:11:42] Speaker 04: And on that point, [00:11:44] Speaker 04: I think a reasonable employee would not expect to see a carve-out provision using legalistic language referring to Section 7, a statute that the employees might not even know about in this workplace. [00:11:57] Speaker 04: And certainly the absence of a carve-out doesn't tell the employees that the company is targeting protected activity. [00:12:04] Speaker 04: I think a lot of this court's cases would look different. [00:12:06] Speaker 00: You all yourself have a carve-out on the non-discrimination provision, right? [00:12:10] Speaker 04: The company does use car valves, but I think that the point is that these are read not as legal documents, but from the perspective of a reasonable mortgage banker. [00:12:23] Speaker 04: And I think if they were read as legal documents, this court's standard of review would be different. [00:12:28] Speaker 04: that the court reviews the board's decision under the standard it does, is that it's not a pure question of contract construction the way that this court would construe a collective bargaining agreement. [00:12:40] Speaker 04: It's a more nuanced question of how a reasonable mortgage banker would perceive this agreement. [00:12:46] Speaker 04: That is what we were not allowed to introduce facts on, but it also highlights the point that legalistic parsing is not required. [00:12:55] Speaker 04: Certainly, the company can use a carve-out. [00:13:00] Speaker 04: I'm not certain that that always satisfies the board, but that might be. [00:13:05] Speaker 06: Well, if you have a carve-out for some things, but it doesn't include a carve-out for exercise of your rights under the NLRA, doesn't that even, does that make things worse, that you've only carved out reports to law enforcement? [00:13:21] Speaker 04: So the reports to law enforcement, that's in the non-disparagement provision. [00:13:25] Speaker 04: I don't think that that tells us anything about the interpretation of the proprietary. [00:13:30] Speaker 06: No, I got that. [00:13:30] Speaker 06: But what I'm trying to figure out is if you have a carve-out that falls short of [00:13:35] Speaker 06: NLRA rights, Section 7 rights, and you can put it in plain English, your rights to collectively bargain and work together to protect your rights as an employee, however you want to phrase it. [00:13:46] Speaker 06: If that's omitted and you only have some of the talks about reports required by law or to law enforcement, doesn't that make things worse, not better? [00:13:56] Speaker 04: I don't think necessarily so, Your Honor, because I think that if there were no carve-out for the [00:14:00] Speaker 04: you know, for reports required by law that, you know, we would be accused of prohibiting people from engaging in activity that's protected by state law. [00:14:13] Speaker 00: But we don't think that the Texas... You might, but your position is that no reasonable employee could read the assimilation of these various provisions to come away with the understanding that they would be barred from disclosing [00:14:24] Speaker 00: information in certain situations that we've talked about, and when you imagine a reasonable employee who engages in the level of detailed analysis of the policy that you're supposing it seems like if they read a particular carve-out, then there would be a negative pregnant from the absence of a larger carve-out. [00:14:41] Speaker 04: Again, Your Honor, I'm not sure that that kind of – that's familiar analysis in construing a contract or in construing a statute, but I'm not sure that that's how a reasonable mortgage banker would review this provision and, you know, to take the non-dispersion provision. [00:14:58] Speaker 04: If it's not touching Section 7 activity already, then no carve-out is required. [00:15:06] Speaker 04: provision that is keyed primarily to ridicule, disparagement, defamation. [00:15:13] Speaker 04: Criticize. [00:15:13] Speaker 04: Yeah. [00:15:14] Speaker 04: And two points about that. [00:15:16] Speaker 04: I think that, A, they're all of a piece, that this is prohibiting attacks that are false, defamatory, reckless, and so on. [00:15:27] Speaker 04: And the second point is that the Supreme Court, disparaging in particular, picks up the Supreme Court's standard from a case called Jefferson's standard. [00:15:35] Speaker 04: that what this court has said in cases like Endicott Interconnect is that what you look at is whether a provision like this is being used to suppress discussion of an ongoing labor dispute, and here there's no evidence at all. [00:15:49] Speaker 00: But I don't think any of those decisions comes close to talking about criticism. [00:15:53] Speaker 04: I take that point, Your Honor, although I should note that the relief ordered by the Board here is to rescind the provision in its entirety. [00:16:00] Speaker 04: And we think that even if there's a problem with criticizing, that there's no problem with the other provisions. [00:16:06] Speaker 04: And the same thing is true of the other provisions. [00:16:07] Speaker 06: Could you argue to the Board they should just take the one word out? [00:16:11] Speaker 04: I think we mounted a full bore attack on everything that the ALJ had said. [00:16:16] Speaker 04: So we did ask that all of the – we asked that there be no injunction at all. [00:16:23] Speaker 04: We did not go back and say, now that you've enjoined us, we would – once again, we'd like you to unenjoin provisions – words two, three, and four in the sentence. [00:16:32] Speaker 04: And on the same point on proprietary confidential information, the injunction extends to things that we think are unproblematic, such as the protection of coworkers' personal information. [00:16:46] Speaker 01: I mean, the injunction goes so far as to prohibit you from maintaining, as proprietary information, personnel files. [00:16:59] Speaker 01: which seems to me a little bit astounding. [00:17:03] Speaker 04: That's correct, Your Honor, that personnel files contain extraordinarily sensitive information. [00:17:09] Speaker 04: This is a company that deals with sensitive information regularly, and of course, like any company, a personnel file can contain disciplinary actions or other sensitive information. [00:17:18] Speaker 04: And the notion that we would be prohibited from disciplining an employee who takes a personnel file, walks out the door, and puts it on the internet, we find very disturbing. [00:17:26] Speaker 06: But again, you never argued to the board for a more narrow injunction. [00:17:30] Speaker 04: Well, we think, Your Honor, that each of these provisions is unproblematic, either because they don't attack Section 7 protected activity at all. [00:17:40] Speaker 04: There certainly are clear prohibitions in here, but the things that are prohibited are not protected. [00:17:45] Speaker 04: And the things that the board says are protected, like sharing your own wage and salary information or your own address, [00:17:51] Speaker 04: are simply not prohibited by the board and no reasonable employee, by the policy and no reasonable employee would read them that way. [00:17:58] Speaker 06: Do you read the injunction as prohibiting you from trying to draft a better, your client from drafting a better or narrower policy on either the disparagement or the private and confidential information? [00:18:12] Speaker 04: It certainly allows us to have a new policy, but I do think that it will be problematic. [00:18:17] Speaker 06: Have you tried to get a new policy? [00:18:19] Speaker 04: Yes. [00:18:20] Speaker 04: Although we have not, I don't think we've discussed it with the board, but for separate reasons, this policy is long as part of an attempt to make it shorter. [00:18:31] Speaker 04: We have in fact begun promulgating a new policy that [00:18:36] Speaker 04: We don't think it runs afoul of the injunction, but we do think that we are within our rights to do a number of things that the board said in its order and that the board is going to say to you today are unlawful, and that's why we want the court, even though we've changed the policy to grant the petition for review. [00:18:51] Speaker 06: And you had said we shouldn't read these things like contracts, but the company and the employee sign them as part of starting employment. [00:18:58] Speaker 06: How do we know this isn't essentially terms of employment contract? [00:19:04] Speaker 04: I think that it is a contract, Your Honor, but I think that this Court's role is not to enforce it as a contract. [00:19:10] Speaker 04: I think that if the Court were going to engage in that kind of analysis, then it would do so de novo. [00:19:15] Speaker 06: But should we assume employees read it like a contract? [00:19:18] Speaker 04: I think that the Board... Or could the Board fairly assume that? [00:19:23] Speaker 04: No, I think actually that the board does not think that way about employees. [00:19:27] Speaker 04: I think that the board operates on the assumption that A, even policies that are not agreed to by a contractor and policies that are are parsed the same way, and B, if there's any possibility of a chill, you don't actually analyze it like a contract and figure out what the right answer is. [00:19:43] Speaker 04: You instead [00:19:45] Speaker 04: ask whether a reasonable employee might read it this way. [00:19:49] Speaker 06: Well, I guess my question is to the extent it seems contractual to the employee who's signing it, that that may again make them more wary. [00:19:56] Speaker 06: It would be fair as part of this reasonable employee calculus to conclude that an employee is more wary of pushing the envelope or taking a textual understandings of a document that they've signed almost like a contract. [00:20:12] Speaker 04: Well, I think if we were to engage in that kind of contract analysis, Your Honor, I think that one of the things that we would do if the contract is ambiguous is to take extrinsic evidence, which is exactly what we are prohibited from doing. [00:20:23] Speaker 04: And I think that the understanding of that a reasonable mortgage banker at this company with the background that that mortgage banker would have, you know, would further eliminate any possibility. [00:20:35] Speaker 06: Does this only apply to mortgage bankers or to all employees? [00:20:37] Speaker 04: This is the, if you look at the beginning of the agreement. [00:20:41] Speaker 06: No, but do you have these same prohibitions as to all employees, or is it only for mortgage bankers? [00:20:49] Speaker 04: That, of course, is not in the record. [00:20:51] Speaker 04: I believe that it is correct. [00:20:56] Speaker 04: I believe that not every employee at the entire company signs agreements with exactly these terms, but beyond that, I'm not certain. [00:21:06] Speaker 06: So there's nothing in the record on whether a secretary or somebody could disclose the information that the mortgage banker can't? [00:21:13] Speaker 04: There certainly is nothing in the record at all about that. [00:21:17] Speaker 04: And that is something that could have been explored, but we were prohibited from doing so. [00:21:22] Speaker 04: If there are no further questions. [00:21:23] Speaker 04: Thank you. [00:21:33] Speaker 03: Your Honor, this decision flows from Wallace Dowler's precedent, which this Court has endorsed, and is consistent with the prior rulings of both the Board and this Court. [00:21:48] Speaker 03: The board analyzed the two rules here in question of the Lutheran Heritage Framework, which this Court has approved, and found that for both rules, the employees would reasonably construe these rules as restricting their Section 7 rights. [00:22:06] Speaker 06: Can I just, with respect to the Hyundai case that you both send us letters on, is it clear on the timing for jurisdiction did the six-month period that fell within the general counsel's complaint include time when Ms. [00:22:22] Speaker 06: Garza was employed? [00:22:23] Speaker 03: I'm not 100% sure about that. [00:22:26] Speaker 03: What I do know, Your Honor, is that the [00:22:30] Speaker 03: The rules that the Quicken imposed on its employees by their own terms extend beyond their employment. [00:22:41] Speaker 03: And in this case, Ms. [00:22:42] Speaker 03: Garza was no longer employed, but what led to this complaint was a letter she received from Quicken Loans saying, you are still bound. [00:22:50] Speaker 03: by these confidentiality rules, and you may not disclose any information as set forth in these rules, even though you're no longer an employee. [00:22:59] Speaker 03: And that was the basis for this charge in this case. [00:23:04] Speaker 03: So I'm not sure about the six-month period. [00:23:05] Speaker 06: So the General Counsel has the authority to seek relief on behalf of someone who's not an employee? [00:23:08] Speaker 03: Is that settled? [00:23:10] Speaker 03: You don't have to be an employee to file a charge. [00:23:12] Speaker 06: Well, you're not an applicant for employment either. [00:23:14] Speaker 06: You're somebody who works for another company, and you can file a charge? [00:23:18] Speaker 03: I believe so, but I'm happy to give more information on that if you'd like. [00:23:25] Speaker 01: Can you explain the scope of the order here and why the scope of the order isn't excessive, particularly since with respect to the confidentiality policy, the board has said that [00:23:45] Speaker 01: They have to cease and desist from deeming personnel files confidential. [00:23:54] Speaker 01: Why can't a company say you have to treat a personnel file as confidential? [00:24:00] Speaker 03: Well, the order says you have to rescind your policy, but you can put a new one in that clarifies the extent to which employees may share information that relates to their terms and conditions of employment with others. [00:24:17] Speaker 03: It does not say you may no longer deem all personnel files confidential. [00:24:23] Speaker 03: And within personnel files, there is a number of files that would relate to the employees' terms and conditions of employment and therefore that employees would be under the Act free to share with other individuals or with unions. [00:24:35] Speaker 06: You mean free to share the files or just free to share the information that's in there? [00:24:40] Speaker 03: You mean the information as opposed to the paper document? [00:24:43] Speaker 06: Well, there's a little snippet of information that you think is something that can be shared. [00:24:47] Speaker 06: That's one thing. [00:24:48] Speaker 06: But it's a different thing altogether to take the file. [00:24:50] Speaker 06: And this protects personnel files. [00:24:53] Speaker 03: And that's why it's overly broad. [00:24:55] Speaker 03: That's why it needs to be, that's why the board ordered it rescinded. [00:24:59] Speaker 03: And for the company should now, if it wants to make a rule, clarify it. [00:25:02] Speaker 06: So the company had a rule that said nothing more than no employee may share employee files of another employee with anybody outside the company. [00:25:12] Speaker 06: that would be unlawful? [00:25:14] Speaker 06: Just personnel files is all I said. [00:25:18] Speaker 03: I believe so, Your Honor, because, for example, taking the example that Mr. Jay mentioned about disciplinary notices, if an employee is disciplined and another employee is not for the same issue, [00:25:33] Speaker 03: for example, that would be something that an employee might want to bring up to an outside party or union. [00:25:39] Speaker 06: Well, the employee can say, hey, I got punished and that person didn't, but it's a different thing altogether to hand the file over. [00:25:45] Speaker 03: Well, [00:25:46] Speaker 03: If the whole file, if by the file you mean the entire file and there's proprietary or other matters that are unrelated to the terms and conditions of employment in there, then no, those are not, those would not be protected under section seven. [00:26:01] Speaker 03: However, the information in there that is related to the terms and conditions of employment, the employees should be free to share that amongst themselves and with third parties for purposes of engaging section seven conduct. [00:26:14] Speaker 06: It's a test whether it's needed to exercise those rights or whether it would just facilitate exercise of the rights. [00:26:20] Speaker 03: Whether it's related, whether they... Right, but it's related to, is that a... [00:26:28] Speaker 06: How is that articulated? [00:26:29] Speaker 03: Well, the Act protects the ability of employees to organize and to bargain collectively for the terms and conditions of employment. [00:26:37] Speaker 03: So, no, it's not a necessity standard, it's whether it is something that is useful for working towards that goal. [00:26:47] Speaker 01: I'm trying to understand your position. [00:26:48] Speaker 01: Is it your position from the response you gave to my earlier question that Quicken Loans could keep the same definition for what is deemed proprietary and confidential? [00:27:02] Speaker 01: as long as they put in some language that said, except that you can share the information to the extent that you are using it consistent with Section 7 rights and that's spelled out what that means. [00:27:18] Speaker 03: I wouldn't be able to tell you if that specific language would pass muster, but yes, the basic notion is that [00:27:30] Speaker 03: employees have to know that to the extent that they want to use information which is in personnel files in order to engage in Section 7 conduct and that information really relates to their terms and conditions of employment, they can do so. [00:27:50] Speaker 01: I guess what I don't like about your answer to my question is that [00:27:56] Speaker 01: There ought to be some clarity in this area of the law, so it shouldn't be a game of gotcha. [00:28:04] Speaker 01: What I don't understand from what you've said, either in your briefing or today, is whether the problem is that the definition of what's proprietary and confidential is too broad. [00:28:17] Speaker 01: Or instead, whether the problem is that they don't have an exception at all for Section 7 conduct, or to the extent that they have one, it's too narrow. [00:28:29] Speaker 01: Which is it? [00:28:30] Speaker 03: The board found in this case that the rule is too broad, is overly broad. [00:28:36] Speaker 03: The board did not find that it was unlawful because it didn't have an exception. [00:28:43] Speaker 01: And so my question to you is, well, can it be cured? [00:28:46] Speaker 01: by putting an exception in. [00:28:49] Speaker 03: I would believe so, Your Honor. [00:28:52] Speaker 03: But again, it would depend on the terms of the exception and whether it would clarify for employees the extent of their rights. [00:28:59] Speaker 03: Because right now, the gotcha game is against the employees. [00:29:04] Speaker 03: Right now, employees are the ones who are supposed to basically take a risk of running afoul this provision and the company's interpretation of this provision if they want to [00:29:17] Speaker 03: engage in Section 7 protected conduct. [00:29:20] Speaker 01: Well, I guess I would mildly disagree with you about where the gotcha game is. [00:29:25] Speaker 01: I mean, Section 7 has been around for how many years? [00:29:28] Speaker 01: I mean, decades, right? [00:29:29] Speaker 01: Right. [00:29:30] Speaker 01: So why are we still trying to figure out how to write a personnel policy or a confidentiality policy? [00:29:37] Speaker 01: I mean, why shouldn't it be settled how we can do that consistent with the NLRA after, you know, 50, 60 years? [00:29:46] Speaker 03: I would say because there are so many of these provisions, and every company has a different idea of what it wants to protect. [00:29:55] Speaker 03: And the board, you know, can give guidance and can certainly, through its opinions and through general counsel memoranda, suggest ways in which to comply. [00:30:05] Speaker 00: So what is the experience in that regard? [00:30:07] Speaker 00: Because it seems like there's definitely a legitimate [00:30:09] Speaker 00: concern on the part of employers in keeping what everybody would acknowledge to be private personnel files, the private information and personnel files private. [00:30:18] Speaker 00: And then obviously there's an interest in assuring that employees aren't unnecessarily dissuaded from exercising Section 7 rights. [00:30:25] Speaker 00: So in terms of the guidance that you were just referring to, what do you tell [00:30:30] Speaker 00: employers about how to structure a policy so that they can give effect to both of those considerations. [00:30:36] Speaker 03: Aside from the board's decisions, which are really the ultimate guidelines, I can tell you that the general counsel, I believe last year, issued a memorandum [00:30:48] Speaker 03: with summarizing various cases and languages, the rural languages that had been found lawful in which the board had, the general counsel had declined to file charges. [00:31:02] Speaker 03: Now I'd put a caveat to that, which is that this is the general counsel speaking, his opinion may not be the board's, but there has been a recognition by this general counsel that employers deserve more guidelines in that department. [00:31:17] Speaker 00: And what does that say? [00:31:20] Speaker 00: Why wouldn't it be enough to have a carve out for Section 7 rights if the test is whether a reasonable employee would understand the policy to impinge on the exercise of Section 7 rights if the reasonable employee then would look at the text of it and see, well, the one thing it doesn't do is [00:31:35] Speaker 00: suppress my exercise of section seven rights because the policy specifically says that I can do that. [00:31:39] Speaker 03: To be clear, I'm not saying that a carve out wouldn't satisfy that. [00:31:42] Speaker 03: I'm just saying that I can't speak for the board and whether the board would, depending on the language of that carve out, find it to be sufficiently clear for employees to understand. [00:31:51] Speaker 03: I was gonna go to non-disparagement, so if you have something to say. [00:31:54] Speaker 06: I was gonna say in that same vein though, if you have a really strict policy and then it just says, unless you're exercising section seven rights, can we expect [00:32:03] Speaker 06: employees who are unlearned in the law to understand or to proceed at their own hazard in figuring out what exactly it is, notwithstanding the very strong language of the policy, to know that they're protected by Section 7? [00:32:18] Speaker 03: Well, that's part of the reason I can't answer that question is I don't know how the board would feel about that. [00:32:23] Speaker 03: But I would believe, I would argue that consistent with what Mr. Chay said about the policy being written in Lehman's terms, a carve-out like that should, I think, preferably be written in a way that employees can understand rather than in a strict legalese. [00:32:42] Speaker 00: And can I ask you about the non-disparagement, why [00:32:46] Speaker 00: Remedy was to eliminate the entire provision as opposed to the particularly problematic part which was focused on the reference to publicly criticize The the yeah the whole section k2 I believe it was because The well there's one long sentence that discusses publicly criticizing ridicule and disparaging and so on and so forth and I [00:33:17] Speaker 03: to the extent that I'm not sure what your question is. [00:33:20] Speaker 03: Do you think that the board could have said you just need to remove the actual verbs, like criticize, ridicule, disparage, defame, as opposed to the rest of the policy, or? [00:33:31] Speaker 00: Well, what if it only said defame? [00:33:34] Speaker 00: Would that be something that [00:33:37] Speaker 00: would be problematic, because I mean, the most capacious term is criticized. [00:33:41] Speaker 00: Everything else seems, you can certainly criticize by defaming. [00:33:44] Speaker 00: You wouldn't necessarily defame if you're criticized. [00:33:47] Speaker 03: The problem is, again here, we're sort of verging on this difference between legalese and layman terms. [00:33:54] Speaker 03: A layman employee might construe, and I think that's the board's position here, that [00:34:01] Speaker 03: defame and disparage and ridicule as just synonyms of criticize. [00:34:05] Speaker 03: And therefore, even if you keep the one term, defame or disparage, an employee would reasonably understand that to say, well, I can't criticize or not to know where the limits are because it is a legal term. [00:34:18] Speaker 03: And so that's why the board would like the company to either rescind that or clarify it so the employees know, again, [00:34:28] Speaker 03: So that they don't have to guess, where is the limit? [00:34:31] Speaker 03: What can I do? [00:34:32] Speaker 01: So what if the company brought in 50 randomly chosen mortgage bankers to the hearing, and they had proffered that they would all testify that they believe that the non-disparagement clause didn't interfere with their Section 7 rights? [00:34:56] Speaker 01: Could that testimony be heard? [00:34:59] Speaker 03: That testimony could be heard, but it wouldn't be dispositive. [00:35:02] Speaker 01: OK, lots of testimony isn't dispositive. [00:35:06] Speaker 01: when it's heard every day in trial courts, right? [00:35:09] Speaker 01: That's right. [00:35:09] Speaker 01: In hearings. [00:35:11] Speaker 01: The test for relevance isn't whether something is dispositive. [00:35:14] Speaker 01: No. [00:35:14] Speaker 01: It's whether it tends to prove something. [00:35:17] Speaker 03: That's correct. [00:35:17] Speaker 03: But we're one step removed from that. [00:35:19] Speaker 03: We're at a step where the test is whether the bail judge's decision was arbitrary and capricious and whether the employer suffered prejudice. [00:35:29] Speaker 03: And because [00:35:30] Speaker 03: that kind of testimony would not be this positive. [00:35:32] Speaker 03: As this court found in Sintas, for example, the employer can't show prejudice at this point. [00:35:39] Speaker 03: I agree with you that it is arguably relevant, and reasonable minds might differ on that issue. [00:35:43] Speaker 03: But at this point, in terms of overruling the board's order based on that decision, because that kind of testimony would not alter the judge's finding, it's not determinative. [00:35:58] Speaker 01: How do we know it wouldn't have? [00:36:03] Speaker 01: I mean, if in this case, Quickenloan said, I've got [00:36:08] Speaker 01: Ms. [00:36:10] Speaker 01: Garza herself will say, and I've got 49 other mortgage bankers past and present, who will say that they didn't believe that this non-disparagement clause would prevent them from talking to a union rapper or something. [00:36:27] Speaker 01: You're saying that if they had proffered that, we would find no prejudice and it wouldn't just be a non-issue. [00:36:36] Speaker 03: If they had proffered that, I can't tell you exactly how the board would have found. [00:36:44] Speaker 03: The board in this case in the various cases where the board has looked past the language of the actual rule there has typically been some kind of Ambiguity or at least rules that were not worded as strongly and as clearly as here here you really have the rule that in terms of the [00:37:07] Speaker 03: In terms of the definition of proprietary and confidential information, I mean there's two pages explaining what that is. [00:37:16] Speaker 03: So it's a very detailed rule and the board found that there was really no way that a reasonable employee could construe it as not to restrict Section 7 right. [00:37:28] Speaker 03: If the rule had been [00:37:30] Speaker 03: you know, perhaps more ambiguous, and at that point, that kind of testimony had been introduced, perhaps the result would be different. [00:37:38] Speaker 03: For example, in Albertson's, Your Honor, there was an ambiguous rule which the board found would be on its [00:37:46] Speaker 03: on its face, shall we say, lawful compared to certain other cases in which the board had found similar rules to be lawful. [00:37:55] Speaker 03: But there was context in which the employer had applied the rule and had told employees that disclosing that kind of information violated the rule. [00:38:05] Speaker 03: And so the board found [00:38:08] Speaker 03: not that the rule was unlawful based on the discipline imposed to the employee, but that the discipline imposed to that employee created a context that informed the other employee's understanding of the rule, and that therefore they would reasonably construe that rule as impinging upon their Section 7 rights. [00:38:27] Speaker 03: If we had some ambiguity like that, perhaps that kind of testimony that you're talking about [00:38:33] Speaker 03: would be more relevant and would alter the decision in this case. [00:38:38] Speaker 03: But we have a rule that is so broadly written that there is really no way, it's kind of what this court said in census, I believe, there's no way to read it any differently than how the board found it. [00:38:53] Speaker 03: And so, unless you have other questions, we respectfully request that the boards are in full. [00:39:01] Speaker 00: Thank you very much. [00:39:02] Speaker 00: Mr. Jay, I think you are out of time. [00:39:05] Speaker 00: We'll give you two minutes for rebuttal. [00:39:09] Speaker 04: Thank you very much, Your Honor, and I understand Judge Millett to request that we submit letters on the jurisdictional issue rather than... If you wouldn't mind, that'd be great. [00:39:16] Speaker 06: That would be great, thank you. [00:39:17] Speaker 04: We'd be delighted to. [00:39:18] Speaker 04: I think that the most recent colloquy brings something important out, which is that I heard my friend to say both that this is a very detailed rule and that that cuts against us, and also that it's a very broad rule, and I submit that the detail is intended to make it more specific. [00:39:34] Speaker 04: and including some of the specific terms that we've been discussing this morning, including non-public, and another one being the personal information of coworkers, which I think is sufficiently clear to tell an employee that they're not prohibited from revealing their own personal information, yet the board nonetheless reads it the other way. [00:39:54] Speaker 04: I think Judge Wilkins' question about the carve-out brings up some very important issues. [00:40:00] Speaker 04: One thing about a carve-out is that [00:40:04] Speaker 04: A flat license to do anything that, in furtherance of Section 7 rights, can raise problems, such as in the board's decision in Roadway Express in 1984, which is that an employee goes into the employer's files, steals some documents, gives them to the union. [00:40:20] Speaker 04: There's no dispute that that was for a pro-organizing purpose in furtherance of Section 7 rights, but nonetheless impermissible under the employer's policy. [00:40:30] Speaker 04: You know, this court's decision in community hospitals adopts the same approach, and I think this is partly an answer to one of my colloquies with Judge Millett, that an employee who's privy to confidential information about another employee has no right to disclose that. [00:40:44] Speaker 04: The fellow employee can give that permission, but there's no interference with Section 7 rights in those circumstances. [00:40:52] Speaker 04: And I'll just close with the evidentiary point. [00:40:55] Speaker 04: In Cintas, the employer was able to bring in evidence about how a reasonable person would interpret the language. [00:41:01] Speaker 04: The ALJ chose not to rely on it, chose not to credit it, but did not rely on a mistaken view of relevance that deemed it completely out of bounds. [00:41:11] Speaker 04: That's what happened here. [00:41:11] Speaker 06: How do you meet the prejudice prong at this stage? [00:41:14] Speaker 04: Well, I think that the prejudice is that we were completely precluded from... You just wanted to bring in Garza's testimony, right? [00:41:22] Speaker 04: Have she read it? [00:41:24] Speaker 04: That is one part of it. [00:41:25] Speaker 04: We also wanted to have the company representative testify about some of these points. [00:41:29] Speaker 06: Well, about enforcement. [00:41:31] Speaker 06: I don't think the company representative can attest as to how employees understand. [00:41:37] Speaker 06: understood it. [00:41:37] Speaker 06: So I thought Ms. [00:41:39] Speaker 06: Garza was there to talk about how she understood it was your theory, and that the company representative was there to talk about enforcement. [00:41:47] Speaker 04: Am I wrong? [00:41:48] Speaker 04: Not just about enforcement, but also about what information is already public. [00:41:53] Speaker 04: And Ms. [00:41:53] Speaker 04: Garza was there to talk not just about how she subjectively enforced it, [00:41:56] Speaker 04: but about what directives had been given by the company, you know, from did you talk to managers or supervisors about how this policy was implemented, and that question was not allowed to be put. [00:42:07] Speaker 04: So I think that, you know, that shows that the ALJ was acting on erroneous legal foundations. [00:42:13] Speaker 04: I think you can review that, De Novo, and I think you can reverse that. [00:42:15] Speaker 06: There wasn't anything in the briefs on this, but I was curious as to whether companies [00:42:20] Speaker 06: face liability under either state statutory or common law for disclosing personal information like this. [00:42:29] Speaker 06: Is there any, are there any such limitations that the companies are finding themselves trapped between the NLRA and maybe state law? [00:42:37] Speaker 04: Yes, absolutely. [00:42:38] Speaker 04: I think Quicken Loans is a Michigan corporation, although the facts of these cases and the charge took place in Scottsdale, Arizona, but Quicken Loans is a Michigan corporation. [00:42:46] Speaker 04: Michigan does in fact have such a statute, I understand, that provides an action for damages. [00:42:53] Speaker 06: Was there any argument below that this policy was driven by the requirements of state law? [00:43:00] Speaker 06: Or trying to navigate that line? [00:43:01] Speaker 04: It's not just state law, Your Honor. [00:43:04] Speaker 04: And I think that some of this is in the purpose provision that we discussed before. [00:43:08] Speaker 04: But Quicken Loans, after all, is a mortgage lender. [00:43:11] Speaker 04: And one of the things about being a mortgage lender is that you acquire a tremendous amount of highly confidential information from your customers. [00:43:20] Speaker 04: And they're not only good business, but also requirements of both federal and state law to safeguard that information. [00:43:29] Speaker 04: That's why you're all here. [00:43:29] Speaker 06: Do you read something in the board's decision to address the disclosure of customer information? [00:43:35] Speaker 04: I'm not saying that the board found that specific aspect of it problematic because that's a different provision. [00:43:42] Speaker 04: The ALJ would have, in fact, prevented us from doing that. [00:43:45] Speaker 04: The board at least corrected that error. [00:43:47] Speaker 04: But my point in bringing that out is that's why mortgage bankers specifically who are covered by this agreement have this fairly detailed confidentiality obligation and are expected to safeguard the company's information. [00:44:00] Speaker 04: even when they might wish to go out and share it with a union or another member of public. [00:44:09] Speaker 04: The board has no further questions, so thank you for your time. [00:44:11] Speaker 00: Thank you, counsel. [00:44:12] Speaker 00: The case is submitted. [00:44:26] Speaker 06: If you want, you can still look at it.