[00:00:02] Speaker 00:
Case number 15-1445 at L. American Baptist Homes of the West doing business as Piedmont Gardens Petitioner versus National Labor Relations Board.

[00:00:11] Speaker 00:
Mr. Durham for the petitioner.

[00:00:13] Speaker 00:
Ms.

[00:00:14] Speaker 00:
Isfeld for the respondent.

[00:00:15] Speaker 00:
Mr. Rosenfeld for the intervener.

[00:00:19] Speaker 03:
Mr. Durham.

[00:00:21] Speaker 03:
This case involves an important area for employers that is workplace investigations and the ability to do them in a thorough way and for employees to actually feel comfortable coming forward.

[00:00:33] Speaker 03:
The case here was a 3-2 decision of the Labor Board overruling Anheuser-Busch.

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a 38-year-old precedent, which created a bright line test saying, witness statements are fundamentally different than other kinds of information.

[00:00:47] Speaker 03:
Therefore, you don't have to provide them.

[00:00:49] Speaker 03:
The most important result of that, I submit, is not that you merely don't have to provide them, but knowing you don't have to provide them, you can provide assurances to witnesses that, hey, you're not going to – we're not going to turn this over to the union.

[00:01:02] Speaker 03:
That argument, which is about the new rule, can you talk about your standing to argue that rule?

[00:01:07] Speaker 03:
Sure, absolutely.

[00:01:08] Speaker 03:
The issue here is, are we an aggrieved party under 10E?

[00:01:13] Speaker 03:
And first, that's the first issue, and I submit, I think it's fairly clear we are.

[00:01:17] Speaker 03:
What about the Article 3 issue?

[00:01:19] Speaker 03:
Well, same thing.

[00:01:20] Speaker 03:
We are aggrieved here in that this is not a hypothetical situation.

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We are the subject of an injunction.

[00:01:28] Speaker 05:
And that's the way I read your briefs.

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So you fear that if you don't follow the new rule, you'll be subject to contempt rather than the way all other employers are.

[00:01:38] Speaker 03:
Correct.

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We are different.

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We're the only ones in America that have that situation.

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And it's not contempt necessarily.

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There's a couple of steps.

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there's an enforcement proceeding first before the board.

[00:01:48] Speaker 05:
To distinguish yourself from the other employer.

[00:01:52] Speaker 05:
So that depends on, and I guess I need to ask the NLRB too, but this just depends on the language in the

[00:02:02] Speaker 05:
PNO, which requires you to, I'm just trying to find it exactly.

[00:02:08] Speaker 05:
It sounds like rather the normal failing and refusing to bargain in good faith.

[00:02:13] Speaker 03:
And refusing to provide information.

[00:02:15] Speaker 03:
But my point on that.

[00:02:18] Speaker 05:
That sounds like the normal boilerplate.

[00:02:20] Speaker 05:
How do we know that what they are saying, that that isn't what, imagine they didn't announce a new rule.

[00:02:27] Speaker 05:
And imagine all they did was find the one violation with respect to Hutton.

[00:02:32] Speaker 05:
This would be the exact same order.

[00:02:34] Speaker 05:
The wording would be the same.

[00:02:36] Speaker 03:
Correct.

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But the difference is, we were a party to the underlying litigation.

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And we know exactly what that wording means because we have the decision in front of us.

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And we can't be assured, Your Honor.

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That's the point.

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Can I tell my client that, hey, just ignore that order?

[00:02:54] Speaker 05:
Yeah, you can't yet.

[00:02:56] Speaker 05:
But maybe at the end of this discussion, you can.

[00:02:58] Speaker 05:
I want to hear what the NLRB thinks about this.

[00:03:01] Speaker 05:
And then, of course, one thing we could say is that you should be treated as any employer.

[00:03:09] Speaker 05:
Now, assuming that's the case, then we only need to look at the Hutton question.

[00:03:13] Speaker 05:
Is that right?

[00:03:14] Speaker 03:
Correct.

[00:03:14] Speaker 03:
If there was a legal ruling that we could continue without violating any existing order,

[00:03:23] Speaker 03:
to apply our former policy and to do do blanket uh... you would you would know what they're what the board's view about what they would apply in the next case would be that that would still be all right just like any other just like as long as we can take it to the bank your honor that's the key i understand okay so um...

[00:03:41] Speaker 03:
That's our position there.

[00:03:43] Speaker 03:
And our position, again, is that we cannot violate the rule with impunity.

[00:03:46] Speaker 03:
So is that sufficient for discussion for your honor?

[00:03:49] Speaker 03:
Yes, I think you've explained the standing argument.

[00:03:52] Speaker 03:
All right.

[00:03:52] Speaker 03:
So regarding the merits, again, I think keep it simple here.

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You know, they changed the rule, the three to two decision.

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We understand that.

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But the point here is this is not a simple academic exercise.

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What they did is the reasoning was, we're just now persuaded that the board in 1978 was correct in their reasoning.

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They called it flawed.

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They said, we disagree with it.

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We don't think a statement is any different than any other piece of evidence.

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End of story.

[00:04:19] Speaker 03:
The problem is, is in doing so, they created a major policy decision.

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They changed 38 years of unbroken precedent, the rules of the road for everybody, so it was a policy decision.

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It's not merely just, you know, now we have three votes, so we used to have two, so now the rule's different.

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And when you do a policy decision, this court and the Supreme Court and virtually every other says, there's certain things you have to do.

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You can't just say, oh, here's the new rule.

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If you change the rule, you have to articulate reasons why.

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And more importantly, I think, you have to hear where the change of the rule not only impacts the Little Labor and National Labor Relations Act, it impacts the whole rest of the world.

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Every ability for the company to do investigations on sexual harassment, violence, or in this case, patient neglect.

[00:05:11] Speaker 06:
Can I just interrupt to make sure I understand the facts right?

[00:05:15] Speaker 06:
The three witness statements all came from charged nurses.

[00:05:18] Speaker 03:
No, one was from a nurse's aide, Your Honor.

[00:05:21] Speaker 06:
That was the new person?

[00:05:23] Speaker 03:
Yeah, I don't remember the name, Your Honor, but one was a charged nurse.

[00:05:26] Speaker 03:
The two that they did not apply retroactively, one was a charged nurse, one was a CNA, a fellow CNA union member.

[00:05:34] Speaker 03:
The Hutton one was one of the another CNA, another charged nurse.

[00:05:40] Speaker 06:
So does it

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What's the significance of the fact that the board treated all the witnesses the same?

[00:05:49] Speaker 06:
I mean, because one could say, well, with respect to witnesses who are in a kind of supervisory relationship over the accused, so to speak, or the person who's being investigated,

[00:06:05] Speaker 06:
It's part of their job, right, to report misconduct, etc.

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So it would seem that there's a lesser need for promise of confidentiality there as opposed to someone

[00:06:21] Speaker 06:
who's not really in the supervisory role, but the board seemed to treat them all the same.

[00:06:26] Speaker 03:
That's right, Your Honor.

[00:06:27] Speaker 03:
That could be a distinction, but I think, again, the point for us for the review is what did the board say?

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What was their reasoning?

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And they didn't give us any reasoning.

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That's my whole point here, I think.

[00:06:38] Speaker 03:
I think you do have a point.

[00:06:39] Speaker 05:
Is that right?

[00:06:39] Speaker 05:
They didn't give any reasoning?

[00:06:40] Speaker 03:
No, let me explain what they did.

[00:06:42] Speaker 05:
It's really interesting.

[00:06:44] Speaker 05:
I read it.

[00:06:44] Speaker 05:
I think it's hard to describe this as no reasoning.

[00:06:46] Speaker 05:
You may not like the reasoning, but... Well, no.

[00:06:49] Speaker 03:
Let me explain.

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Let's deal with balancing first.

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That's critical.

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Everybody knows you have to balance.

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They can't operate in a bubble.

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The Labor Board can't say the National Labor Relations Act is all that matters and we don't care about anything else.

[00:07:01] Speaker 03:
So they have to balance them.

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So what do they do?

[00:07:04] Speaker 03:
There's the interest on one side in the union getting the witness statements.

[00:07:08] Speaker 03:
They don't explain in the decision why that's important.

[00:07:11] Speaker 03:
When they get all of this information they're entitled to, why adding this little additional leaf on the top of it matters that much, or how important it is.

[00:07:19] Speaker 03:
There's nothing in there that says this is important.

[00:07:20] Speaker 06:
They said it's important because the union has to know whether to, you know, support the employee.

[00:07:26] Speaker 03:
Right, but they have all this other information.

[00:07:28] Speaker 03:
They didn't explain why this incremental amount matters.

[00:07:32] Speaker 03:
And in balancing it, that's the key.

[00:07:34] Speaker 03:
When then you balance it against all the other interests of intimidation of witnesses and all of those kinds of things.

[00:07:40] Speaker 06:
Well, I can tell you as a former public defender, where I never got witness statements from the government and had to go out and dig them up myself, it made a heck of a lot of difference.

[00:07:50] Speaker 03:
Well, that's right, but let the Union dig them up themselves.

[00:07:53] Speaker 03:
Who says they can't?

[00:07:54] Speaker 03:
I mean, that's the other point on this.

[00:07:57] Speaker 05:
But I don't understand when you say that we've held these kinds of changes of position.

[00:08:06] Speaker 05:
create some kind of higher responsibility for explanation.

[00:08:10] Speaker 05:
That's not right.

[00:08:11] Speaker 03:
No, I think they do have some explanation.

[00:08:14] Speaker 03:
Yes.

[00:08:14] Speaker 03:
But here's what they did.

[00:08:15] Speaker 03:
But what they did was rebalanced.

[00:08:17] Speaker 03:
No, they didn't.

[00:08:18] Speaker 03:
I respectfully submit they didn't rebalance.

[00:08:21] Speaker 03:
What they said is, we're not convinced that this decision was right.

[00:08:25] Speaker 03:
They said that they assured employers that their interests, that they would still be able to conduct fair investigations.

[00:08:33] Speaker 03:
But a conclusory assurance is not sufficient.

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They're not experts in what it takes to do a fair investigation.

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They don't have any particular expertise.

[00:08:42] Speaker 03:
There's no facts finding that it won't be injured, in spite of the fact that the Supreme Court in Robbins said that, hey, the risk in these kinds of situations are obvious and inherent.

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Those are the words they use.

[00:08:57] Speaker 05:
That was under FOIA, of course.

[00:08:58] Speaker 05:
But what kind of promise of confidentiality did the employer make here?

[00:09:05] Speaker 03:
Well, that's actually the Hutton case, the issue on that.

[00:09:08] Speaker 05:
No, but as a general matter, this background, the idea to do it.

[00:09:12] Speaker 03:
In two of the people, they gave an explicit contemporaneous.

[00:09:16] Speaker 03:
And what was the promise?

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That we will not turn this up.

[00:09:19] Speaker 03:
They would be kept confidential.

[00:09:20] Speaker 03:
We will not turn it over to the union.

[00:09:22] Speaker 03:
They could not have made that, right?

[00:09:25] Speaker 05:
That would be false.

[00:09:26] Speaker 05:
that well but uh... uh... has a bush applies only to pre arbitration disclosure that's what this was that but but you can't promise somebody that you will never turn it over to the union because nothing protects you once the arbitration begins right i don't think that's correct they could be subject to the subpoena for act that we would fight it on the basis that it's more important but but there's nothing in the anheuser-bush rule that says

[00:09:55] Speaker 05:
that you never have to turn it over.

[00:09:57] Speaker 05:
It just says you don't have to turn it over pre-arbitration, right?

[00:10:01] Speaker 05:
No, it said you don't have to turn it over, and that was a pre-arbitration case.

[00:10:06] Speaker 05:
Well, all the dissenters on your side describe this as a disclosure pre-arbitration.

[00:10:13] Speaker 05:
And likewise, the Robinson, and in fact, in Anheuser-Busch, they did have to disclose it afterwards.

[00:10:20] Speaker 05:
The statements were disclosed, and the people had to testify.

[00:10:24] Speaker 05:
So if you tell an employee, don't worry, you tell us all this, and we will never tell the union or the person you are

[00:10:31] Speaker 05:
talking about, that wouldn't be right.

[00:10:33] Speaker 05:
There is a risk that you will have to turn over the statements and there's a risk that the employee will have to testify, isn't that right?

[00:10:40] Speaker 03:
There is a risk that that's true, but the point is there is no countervailing rule in arbitration like there is in NLRB cases that you must turn over witness statements after the person testifies on correct examination.

[00:10:54] Speaker 03:
And we will do not turn over these things in arbitration.

[00:10:57] Speaker 03:
We would fight it tooth and nail.

[00:10:59] Speaker 03:
So the fact that there is some possible of collateral litigation that would force it, I don't think takes away from the point that we can say in good faith that we will keep these confidential.

[00:11:08] Speaker 03:
And the point is that it is what they tell you.

[00:11:10] Speaker 05:
And did the witnesses have to testify?

[00:11:12] Speaker 05:
No.

[00:11:13] Speaker 05:
None of the witnesses testified.

[00:11:14] Speaker 05:
It was never an arbitration.

[00:11:16] Speaker 05:
Okay, but if there is an arbitration, so in Anheuser-Busch, five of the six witnesses had to testify.

[00:11:21] Speaker 05:
That's possible.

[00:11:22] Speaker 03:
It depends on the situation.

[00:11:23] Speaker 05:
That's right.

[00:11:24] Speaker 05:
And if there's an unfair labor practice hearing, they may have to testify, right?

[00:11:29] Speaker 05:
But there's no basis for us knowing there's an unfair labor practice hearing.

[00:11:32] Speaker 03:
No, no, we're talking about the rule in general.

[00:11:34] Speaker 03:
That's a different rule, correct.

[00:11:35] Speaker 03:
In the unfair labor practice, on the Jenks rule, they have to turn over.

[00:11:38] Speaker 05:
Right.

[00:11:38] Speaker 05:
And some of these might lead to unfair labor.

[00:11:41] Speaker 05:
Not in your case, I understand that.

[00:11:43] Speaker 05:
But when you're talking about a blanket rule, in some cases, witnesses will have to testify in unfair labor practice here.

[00:11:48] Speaker 03:
But that doesn't mean that the employer has to turn over its witness statements.

[00:11:52] Speaker 03:
Jenks only requires the Labor Board to turn over its witness statements.

[00:11:55] Speaker 05:
I'm talking about them having to testify.

[00:11:58] Speaker 05:
Testify is a different thing.

[00:11:59] Speaker 05:
Right.

[00:12:00] Speaker 05:
So the concern that somebody may not come forward and tell about misconduct,

[00:12:08] Speaker 05:
you can't promise them confidentiality, because the way you know that there is misconduct is they told you.

[00:12:16] Speaker 05:
And if you are going to defend yourself, you the employer, either in arbitration or in an unfair labor practice hearing, somebody's going to have to testify on your side.

[00:12:26] Speaker 03:
We never promised them confidentiality, period.

[00:12:29] Speaker 03:
We said the witness statement would not be turned over to the union.

[00:12:33] Speaker 03:
That's the difference.

[00:12:34] Speaker 03:
And notwithstanding the fact that in some cases, they are turned over.

[00:12:38] Speaker 05:
It's conceivable, but the point is we don't think there is a reason to turn them over.

[00:12:43] Speaker 05:
So I haven't read anywhere in the papers here that says that the nature of the promise was not to turn over the witness statement.

[00:12:50] Speaker 05:
I thought it was just a promise of confidentiality.

[00:12:53] Speaker 03:
No, I believe it was we're not going to turn over the witness statement.

[00:12:56] Speaker 03:
So we keep witness statements confidential and will not be turned over.

[00:13:00] Speaker 03:
And there were the two express statements.

[00:13:02] Speaker 03:
And then there was the Hutton situation where there was no express statement, but she was aware of the fact that the statements would be kept confidential.

[00:13:11] Speaker 03:
She relied upon it and said she would, in fact, consider quitting if she didn't do it.

[00:13:15] Speaker 03:
And that's the other point.

[00:13:17] Speaker 03:
If I could just use a little bit of time.

[00:13:19] Speaker 05:
But the judge didn't agree with that, right?

[00:13:20] Speaker 05:
The ALJ found that that was not a truthful statement on her part.

[00:13:24] Speaker 03:
No, no, the judge found that the Hutton State which did not need to be turned over, that the blanket policy was sufficient.

[00:13:30] Speaker 05:
Oh, no, no, the ALJ found.

[00:13:32] Speaker 03:
that she only submitted her statement to avoid being disciplined more severely for ignoring uh... mister bear about sleeping when the new charge nurse in training blew the whistle your honor motive is irrelevant the point is what was the knowledge that were they aware and that she they didn't do nothing in the judge's decision since she was not aware of the policy of i thought you just said that she would not have come forward but for the

[00:13:58] Speaker 03:
She testified to that.

[00:13:59] Speaker 03:
The judge found contrary.

[00:14:01] Speaker 03:
It was no need for me to even say it because motive is completely irrelevant.

[00:14:05] Speaker 03:
The only issue is did they have a reason to believe that it would be kept confidential.

[00:14:08] Speaker 05:
So then the argument about the Hutton statement is whether it's consistent or that ruling is consistent or inconsistent with the board's precedent.

[00:14:17] Speaker 03:
Right, the point is, Your Honor, is that there's never been a case dealing with that as to what the specific amount was necessary, whether a rule, whether something posted on the wall was enough or whether you had to do a contemporaneous, and the board cited two cases that don't stand for that.

[00:14:33] Speaker 05:
Yeah, so it cited El Paso and New Jersey, which you think don't stand for the rule.

[00:14:38] Speaker 03:
Because there was no confidentiality evidence at all, so the board never had to get to that.

[00:14:42] Speaker 05:
Even the two dissenters thought that those cases did stand for the rule.

[00:14:46] Speaker 05:
One of the dissenters saying it would therefore have to follow.

[00:14:50] Speaker 05:
I think it's a he would have to follow.

[00:14:52] Speaker 05:
The other one said, I'm not going to follow those, right?

[00:14:55] Speaker 05:
Your Honor, I can't be responsible for what the dissenters said.

[00:14:57] Speaker 05:
The bottom line is the cases don't say that.

[00:15:00] Speaker 05:
So where I'm going here is,

[00:15:02] Speaker 05:
we have held in Ceridian and many other cases, the board is entitled to a reasonable interpretation of its own precedence, even if we don't agree with its reading.

[00:15:15] Speaker 05:
And particularly in Ceridian, we said, if it is inconsistent with the facts of another case, then there's a problem.

[00:15:25] Speaker 05:
But if all it is is an extension, and there wasn't a case that said the opposite,

[00:15:32] Speaker 05:
then we can uphold that.

[00:15:33] Speaker 05:
So as you said, there has never been a case before this one.

[00:15:37] Speaker 05:
In fact, there aren't very many Anheuser-Busch cases, as far as I can see anyway.

[00:15:41] Speaker 05:
But there hasn't been a case where the similar facts occur and the opposite result was wrong.

[00:15:47] Speaker 03:
That's the exact point I'm trying to make, is that it's true.

[00:15:51] Speaker 03:
The board could have said,

[00:15:53] Speaker 03:
Hey, this has never been decided before.

[00:15:55] Speaker 03:
We think for policy reasons it's important to give a contemporaneous assurance and that a general policy is not enough.

[00:16:02] Speaker 03:
But they didn't do it.

[00:16:03] Speaker 03:
They said it's already been decided, citing those cases, which they don't say that.

[00:16:08] Speaker 05:
Well, yeah.

[00:16:08] Speaker 05:
All right.

[00:16:09] Speaker 05:
The question is whether the board majority and its dissenters were unreasonable in reading the other two cases.

[00:16:16] Speaker 05:
and whether those other two other cases are inconsistent with.

[00:16:19] Speaker 05:
That's a question we have to face, right?

[00:16:21] Speaker 03:
Correct.

[00:16:21] Speaker 05:
OK, fine.

[00:16:22] Speaker 05:
All right.

[00:16:24] Speaker 05:
Further questions?

[00:16:25] Speaker 05:
We'll give you a few minutes at the end anyway.

[00:16:27] Speaker 05:
I know you're out of time.

[00:16:28] Speaker 05:
That's fine.

[00:16:28] Speaker 05:
Thank you.

[00:16:30] Speaker 05:
All right, Ms.

[00:16:30] Speaker 05:
Isbell.

[00:16:36] Speaker 01:
May it please the court, Kelly Isbell here on behalf of the National Labor Relations Board.

[00:16:39] Speaker 01:
I think I'd like to start with standing and rightness.

[00:16:42] Speaker 05:
Yeah, could you stand with the question of what the DNO means?

[00:16:45] Speaker 05:
Will they be in contempt?

[00:16:49] Speaker 05:
Are they bound by the new rule by the boilerplate statement in the DNO?

[00:16:56] Speaker 05:
Or will they be treated as all other employers would be for that purpose, as matters for standing, I think?

[00:17:02] Speaker 01:
And I cannot answer that definitively.

[00:17:05] Speaker 01:
And the reason is because they did not raise that issue to the board as they should have in a motion for reconsideration following the board's order.

[00:17:14] Speaker 01:
They could have raised it to the board and asked the board for clarification.

[00:17:17] Speaker 01:
They could have also made some more definitive argument in their opening question.

[00:17:20] Speaker 05:
I understand your argument, but my question is, you can't tell us by reading that whether they're bound either, huh?

[00:17:26] Speaker 01:
I can tell you by comparing it to HTH, HTH Corporation had – it had a lot of violations in it, some of which you overruled, but you enforced the board's order related to a similar violation, and that part of the order is very similar.

[00:17:43] Speaker 01:
The El Paso electric order is very similar.

[00:17:46] Speaker 05:
So these are all, though, about the application of an existing precedent, not about a new rule that was implied retroactively.

[00:17:53] Speaker 01:
So when I look at it, it looks to me like the same kind of order the board would have issued under Anheuser-Busch.

[00:17:59] Speaker 05:
Only as an applied retroactive.

[00:18:01] Speaker 05:
So it would not be an unreasonable reading if we were to read it that way.

[00:18:05] Speaker 01:
It would not, Your Honor.

[00:18:07] Speaker 05:
Can I ask you another question on this subject?

[00:18:11] Speaker ?:
Yes.

[00:18:12] Speaker 05:
I don't know how to put this in the most diplomatic way.

[00:18:14] Speaker 05:
You can probably guess what the question is, which is no defense on the merits at all.

[00:18:20] Speaker 05:
No standing, but then no defense on the merits in case there is standing.

[00:18:24] Speaker 05:
Is there something going on here that I don't get?

[00:18:29] Speaker 05:
Is this just a strategy?

[00:18:31] Speaker 05:
Do you think we don't need to because our standing argument is so incredibly powerful?

[00:18:36] Speaker 05:
Some doubt about the merits?

[00:18:38] Speaker 05:
Some question about rightness to argue the case right now.

[00:18:42] Speaker 05:
What's going on here?

[00:18:43] Speaker 01:
It was a decision because we very strongly believe they have no standing and the case isn't right.

[00:18:50] Speaker 01:
It also has to do with the fact that the board's Detroit Edison test is very fact specific.

[00:18:56] Speaker 01:
So I can't apply it in this case because the board didn't apply it in this case.

[00:19:02] Speaker 01:
I have nothing to say about the new test except

[00:19:08] Speaker 01:
Maybe the board was reasonable in coming up with the test, but I can't apply it because it is so fact-specific.

[00:19:13] Speaker 01:
And any application to this company, to Piedmont, is so far down the road that I don't have any way to defend the board's order.

[00:19:24] Speaker 01:
Another witness statement comes up, the board might find they don't have to turn it over for whatever reason.

[00:19:28] Speaker 01:
Witness intimidation or the union steward was the person who committed the misconduct in question.

[00:19:35] Speaker 01:
I can't tell you how the board would come out in any particular way or how the board would have applied the new test in this situation because it didn't.

[00:19:43] Speaker 01:
So yes, it was a briefing strategy decision because we honestly do not think the application of this test is right.

[00:19:51] Speaker 04:
No, it's like playing roulette here.

[00:19:53] Speaker 04:
It's not the strategy I would take.

[00:19:55] Speaker 04:
I will take that back.

[00:19:58] Speaker 01:
And even on the cease and desist order,

[00:20:02] Speaker 01:
Whether or not this went to contempt is so far attenuated, I can't even describe to you in a short sentence how it would go to contempt.

[00:20:14] Speaker 01:
First, there would have to be a witness statement that came up in an investigation that they refused to provide.

[00:20:20] Speaker 01:
The union would then have to refuse an accommodation.

[00:20:23] Speaker 01:
The employer under Pennsylvania Power and Light is obligated to provide a summary or provide some sort of accommodation.

[00:20:29] Speaker 01:
The union would have to refuse the accommodation, would then have to go to one of our regional offices and complain.

[00:20:35] Speaker 01:
The regional office would have to investigate.

[00:20:37] Speaker 01:
The regional office would have to recommend contempt to the general counsel, and then the general counsel would have to accept that recommendation

[00:20:43] Speaker 01:
and ask the board for authorization.

[00:20:45] Speaker 01:
So at any one of those points, any of those officials of the board could decide that this would be better decided in an enforcement proceeding, the regular administrative proceeding, rather than going to contempt.

[00:20:57] Speaker 01:
So under the rightness doctrine, it's just too far attenuated to show an imminent harm or hardship to Piedmont.

[00:21:09] Speaker 05:
Further questions?

[00:21:11] Speaker 05:
We have further more to say?

[00:21:13] Speaker 01:
unless you would like to talk about the merits of Hutton's witness statement.

[00:21:19] Speaker 06:
Well, I am curious as to why someone who's worked there for 40 years, I believe it was, and it's undisputed that the policy was that these statements would be kept confidential.

[00:21:39] Speaker 06:
Why is

[00:21:42] Speaker 06:
reasonable for the board to construe its precedent to say that that person wasn't really relying on anything.

[00:21:52] Speaker 01:
for a couple reasons.

[00:21:53] Speaker 01:
One is the board said that its cases from New Jersey Bell and El Paso Electric very clearly say there has to be an assurance.

[00:22:00] Speaker 01:
And remember, there's not a blanket policy at Piedmont that these statements will be held in confidence.

[00:22:07] Speaker 01:
There's a practice of assuring individuals, individually, of confidentiality.

[00:22:12] Speaker 01:
But there's no policy.

[00:22:13] Speaker 01:
There's nothing in the employee handbook, for example, that says witness statements will be held in confidence.

[00:22:18] Speaker 01:
For two of the witness statements,

[00:22:20] Speaker 01:
They told the employees these will be held confidential.

[00:22:24] Speaker 01:
For Hutton's statement, they did not.

[00:22:26] Speaker 01:
And what the judge found and the board affirmed was that the reason she provided it was because she knew she was going to get in trouble if she didn't report Mr. Barriod.

[00:22:36] Speaker 01:
She only reported after she learned that someone else had reported him for sleeping on the job.

[00:22:41] Speaker 01:
And then decided she also better get in on the act.

[00:22:43] Speaker 01:
So it was the confidentiality provision while she said she believed her statement would be held in confidence.

[00:22:51] Speaker 01:
The board found that based on its precedent, she had to receive an affirmative assurance of confidentiality, and that the confidentiality was not, in fact, in any event, why she provided the statement.

[00:23:02] Speaker 01:
She provided the statement to get out of trouble, and she was, in fact, disciplined for not providing the statement sooner.

[00:23:09] Speaker 06:
Is it reasonable for there to be a rule that, I guess, employs the same standard for somebody like the charge nurse who's a supervisory capacity and has a duty to report misconduct, so to speak, as you would apply to a peer witness to misconduct, a co-employee?

[00:23:36] Speaker 01:
Well, in fact, on the issue of witness names, the board has the same standard for witness names.

[00:23:43] Speaker 01:
So if you look at cases like Mobile Oil and Resorts International, one of the things the board looks at is whether or not the witness was provided an assurance of confidentiality, and they take that into account about whether or not you have to turn over witness names under Detroit Edison.

[00:23:57] Speaker 01:
With the charge nurses, the board made no finding about whether or not they were supervisors.

[00:24:01] Speaker 01:
That was not part of

[00:24:03] Speaker 01:
the consideration.

[00:24:05] Speaker 01:
And I believe all employees are required to report misconduct, not just supervisors.

[00:24:12] Speaker 01:
So I think it is completely reasonable for the board to want to know there is, especially in a situation where there's no policy written, right, there's nothing in the handbook.

[00:24:20] Speaker 01:
So employees would only know if the employer told them.

[00:24:24] Speaker 01:
And

[00:24:25] Speaker 01:
In this particular case, under Anheuser-Busch, it is just a simpler, more reasonable rule.

[00:24:30] Speaker 01:
You tell everybody, rather than the board have to figure out this person worked for five years, she should have known that somebody who worked four and a half maybe shouldn't have known about the policy that she wasn't told about.

[00:24:41] Speaker 05:
All right.

[00:24:45] Speaker 05:
Thank you.

[00:24:45] Speaker 05:
We'll hear from the intervener.

[00:24:47] Speaker 01:
Thank you, Your Honor.

[00:24:53] Speaker 02:
Let's address what the confidentiality policy was.

[00:24:58] Speaker 02:
At the joint appendix, page 71, the employer represent testifies, we have a practice of confidentiality.

[00:25:04] Speaker 02:
Nowhere does she say it's confidentiality

[00:25:08] Speaker 02:
as to the union.

[00:25:09] Speaker 02:
But confidentiality is subject to many exceptions.

[00:25:12] Speaker 02:
Even the EEOC says that investigative policies, you assure the employer of confidentiality to the extent possible.

[00:25:20] Speaker 02:
Because there are many, I won't call them breaches, but many circumstances where this information isn't confidential.

[00:25:26] Speaker 02:
You share it with other managers.

[00:25:28] Speaker 02:
You may share it with a supervisor.

[00:25:30] Speaker 02:
You may

[00:25:31] Speaker 02:
Even in the Detroit Edison case, the employer offered to share the witness statement with the union's lawyer, provided the union's lawyer didn't share it with the union.

[00:25:48] Speaker 02:
So you can't have a blanket absolute policy of confidentiality.

[00:25:53] Speaker 02:
And Judge Garland is perfectly correct that in arbitrations, you either produce the statement if the witness testifies, or the union gets a subpoena, which is enforceable under the Federal Arbitration Act, to get the witness statements.

[00:26:05] Speaker 05:
So at some point… I guess I'm not embarrassed to disclose I have not participated in a

[00:26:12] Speaker 05:
in management and arbitration, because you can't have done everything in another life.

[00:26:17] Speaker 05:
But what is the practice with respect to disclosure of witness statements?

[00:26:23] Speaker 05:
Is it typical that, if you actually get to the arbitration, that they are disclosed?

[00:26:29] Speaker 05:
Not typical sometimes?

[00:26:30] Speaker 05:
Most of the time?

[00:26:31] Speaker 02:
It varies.

[00:26:33] Speaker 02:
And Mr. Durham's right, it varies.

[00:26:34] Speaker 02:
I've had cases where the witness testifies.

[00:26:36] Speaker 02:
I say, have you given a statement?

[00:26:38] Speaker 02:
The employer hands it over, and I use it for cross-infamination.

[00:26:41] Speaker 02:
There have been cases where it's subpoenaed witness statements.

[00:26:43] Speaker 02:
There have been cases where the statements have been given at the beginning of the procedure.

[00:26:48] Speaker 02:
And I can't remember one, but there have probably been cases where the employers never disclose the statement, and in part because they choose not to call that person as a witness.

[00:26:57] Speaker 02:
But I can assure you, in response to Judge Wilkins' comment, that it aids the arbitration process to give to the union the witness statement,

[00:27:06] Speaker 02:
sometimes redacted, so the union can make its own evaluation whether to ever go to arbitration.

[00:27:12] Speaker 02:
In this case, if you've got a worker sleeping on the job, I think I know where the union is headed.

[00:27:16] Speaker 05:
What about the summary of the witness statements?

[00:27:19] Speaker 05:
What's the practice with respect to that?

[00:27:21] Speaker 05:
I guess I read in some of these cases that summaries are provided.

[00:27:28] Speaker 02:
In this case, the union didn't ask for that, strangely.

[00:27:31] Speaker 02:
I don't think it happens a lot.

[00:27:33] Speaker 05:
Is that an exception to Anheuser-Busch, or not an exception, but not covered by Anheuser-Busch?

[00:27:39] Speaker 02:
That is an exception, because the board has narrowed Anheuser-Busch.

[00:27:44] Speaker 02:
It's very narrow now.

[00:27:46] Speaker 02:
So all Anheuser-Busch stands for is the statement.

[00:27:50] Speaker 02:
But Anheuser-Busch says you've still got to give, or other cases, the name of the witnesses,

[00:27:55] Speaker 02:
a summary of the statement, and other evidence that you might have that would disclose even who the witnesses are, so that all that the union has left with is not getting the exact statement.

[00:28:08] Speaker 02:
So let me just address the standing issue, because I'm kind of in the middle of that.

[00:28:12] Speaker 02:
And I raise that in my intervener's brief, because I'm often on both sides of this question.

[00:28:18] Speaker 02:
I'm one of the few lawyers that's litigated contempt cases, both in favor of and responding to them.

[00:28:24] Speaker 02:
And I think Mr. Durham is not correct in the following respect, and the board is probably correct, but let me just explain why.

[00:28:30] Speaker 02:
That although the broad language Judge Garland, which you read, could theoretically encompass a subsequent failure to provide the witness statement, that's highly unlikely.

[00:28:41] Speaker 02:
And we have a problem here, as Ms.

[00:28:43] Speaker 02:
Isabel pointed out, that if Piedmont Gardens was concerned

[00:28:48] Speaker 02:
that maybe they will be held in contempt later on for an order that's boilerplate.

[00:28:53] Speaker 02:
They could have filed a motion for reconsideration and said, the board, you didn't apply this rule in our case.

[00:29:00] Speaker 02:
Does this mean in the future it applies?

[00:29:02] Speaker 02:
And they never did that.

[00:29:04] Speaker 02:
That would have been the safest way.

[00:29:06] Speaker 02:
But I think it's also clear that they would not be held in contempt.

[00:29:09] Speaker 02:
But I can't say it's an absolute certainty.

[00:29:11] Speaker 02:
So I want to be clear I'm not.

[00:29:13] Speaker 02:
Totally on the board's side.

[00:29:14] Speaker 05:
Well, some clarification looks like it's going to be necessary.

[00:29:17] Speaker 05:
Maybe it'll have to come from us or from the board or something.

[00:29:21] Speaker 05:
But it does look like some clarification is necessary.

[00:29:23] Speaker 02:
Here seems to be the easy clarification that the board did not apply the rule in this case.

[00:29:29] Speaker 02:
And therefore, it could not have attended that language to apply to this specific circumstance.

[00:29:34] Speaker 02:
So that if a contempt case- No, I agree.

[00:29:37] Speaker 05:
That's why I read it.

[00:29:38] Speaker 05:
That's why I didn't think it applied.

[00:29:40] Speaker 05:
That appears to be why everybody thinks maybe it doesn't apply.

[00:29:43] Speaker 05:
But it would be helpful.

[00:29:44] Speaker 02:
And I'll just move it.

[00:29:45] Speaker 02:
I think that's the way it applies.

[00:29:46] Speaker 02:
But I, again, am careful to say one could really stretch this to say in the future.

[00:29:51] Speaker 02:
And I think that would only occur if the courts of appeal enforced the new rule so it was clear in the future that if they didn't provide it, it would-

[00:30:00] Speaker 02:
Okay, thank you.

[00:30:01] Speaker 05:
Thank you very much.

[00:30:03] Speaker 05:
I know there's no time left.

[00:30:04] Speaker 05:
We'll give you another minute.

[00:30:06] Speaker 03:
Yeah, your honor, your honor.

[00:30:07] Speaker 03:
So

[00:30:08] Speaker 03:
Yeah, just with respect to the standing and all of that, I think it's clear from counsel for the NLRB that they can't give me an assurance or our client an assurance.

[00:30:16] Speaker 03:
A million decisions have to be made, and we just don't tell our clients to do things that subject them to contempt.

[00:30:22] Speaker 03:
And as far as rightness, there's no case I've ever seen that says if you're subject to an injunction, you have to wait till you're held in contempt in order to attack the underlying case.

[00:30:29] Speaker 03:
I mean, I just don't think that's sensible.

[00:30:32] Speaker 03:
One other thing about witness names that was just brought up here, the cases that stand for witness names, there's a distinction here that nobody seems to be focusing on, in that the cases only talk about the names of witnesses, not the names of people who gave witness statements.

[00:30:47] Speaker 03:
That's why they're so different.

[00:30:48] Speaker 03:
You could have 150 people witnessing somebody throw a monkey wrench in an assembly line.

[00:30:53] Speaker 03:
But only one person came forward to give the statement.

[00:30:57] Speaker 03:
So that is a very different thing.

[00:30:58] Speaker 03:
So it's like the board said here that it's the same thing as a witness names.

[00:31:03] Speaker 03:
It just isn't.

[00:31:05] Speaker 05:
Okay.

[00:31:06] Speaker 05:
Any further questions?

[00:31:07] Speaker 05:
All right.

[00:31:07] Speaker 05:
We'll take the matter under submission.

[00:31:08] Speaker 05:
Thank you all.