[00:00:02] Speaker 00:
Case number 15-1245 at L. Banner Health System, Dealing Business as Banner Australia Medical Center Petitioner vs. National Labor Relations Board.

[00:00:13] Speaker 00:
Mr. Kesecki for the petitioner, Mr. Heller for the respondent.

[00:00:20] Speaker 04:
Good morning, Your Honors.

[00:00:21] Speaker 00:
Good morning, Mr. Kesecki.

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We're here today because the National Labor Relations Board wanted the law to be different than what it is.

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But to get to the result it wanted, it needed facts different than what they are.

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The board's ability to change the law in appropriate cases does not quite extend so far as to change the facts.

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Isn't it clear that the proposition of law is really not that, is one that we have accepted, which is if a lawyer

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has a confidentiality rule that applies to employees and could relate to Section 7 protected activity that it's illegal.

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It's a violation of 8A1.

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So that's the basic law question, isn't it?

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Which gets rid of the second argument you made.

[00:01:17] Speaker 04:
Your Honor, close but not quite.

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The law is, as it's been interpreted by this circuit, that a rule that an employer adopts that interferes with Section 7 activity, a confidentiality requirement that limits Section 7 activity, is illegal without justification.

[00:01:42] Speaker 06:
Is that what I said?

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your honor, you said if it may affect section seven, I said if it relates to employees and your honor, not all that's not quite correct because not all confidentiality rules that relate to employees affect section seven rights.

[00:02:00] Speaker 06:
That's theoretically true.

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That's a fair point.

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For instance, if I suppose if an employee said confidentiality rules, uh, any

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health matters relating to employees has to be regarded as confidential.

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I'm not even sure that wouldn't touch Section 7, because it could involve Section 7.

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Your Honor, I would... I don't know.

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I'm not sure that's right.

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I think once it touches employees, if it talks about blanket confidential rule regarding employees, unless employees agree to it, it's going to hit Section 7.

[00:02:41] Speaker 04:
Your Honor, as the dissent in this case, Mr. Mayor pointed out, in multiple instances, as a matter of fact, we believe he correctly identified that majority of cases involving employer investigations simply do not impact Section 7 rights, even, for example, cases like sexual harassment.

[00:03:03] Speaker 06:
That's your first issue.

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The second issue is the confidentiality.

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You start out saying the government was trying to

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and screwing around with facts in order to get it.

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But the principle of law, which is the second part of your case, is really simple, I think.

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And our court is, although the first two cases on this were in tension, now in the third case is except recognized attention.

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The second case prevails.

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I can't remember the name of the case.

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The first case was written by Judge Doug Ginsburg on what confidentiality meant.

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The second by Judge Griffith, the third by Judge Williams.

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It's now clear in this court that an overall confidentiality rule that relates to employees is a violation of 8.81.

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If it could be reasonably construed as affecting Section 7 rights under Hyundai,

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understood your honor.

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And that is the board's current interpretation of the law is if a provision, a requirement, an agreement would either directly limit employees exercise of Section seven rights, which a confidentiality agreement does not necessarily do depending on when it is used and how it is stated.

[00:04:24] Speaker 06:
No, no, wait a minute.

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If it's phrased generally that you cannot discuss

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matters that are confidential about other employees it's a violation of a day one because that doesn't that can include section 7 protected material.

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Conceded.

[00:04:43] Speaker 06:
Sorry?

[00:04:44] Speaker 04:
Conceded your honor.

[00:04:45] Speaker 06:
So what are we fighting about?

[00:04:47] Speaker 04:
Your Honor, first of all, there are two separate issues in this case, and it's important analytically for us to keep them separate.

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I agree.

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One is a confidentiality agreement, which is a standard agreement that Banner used with newly hired employees.

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And we think that's relatively straightforward for the court to resolve, because the agreement's not in dispute.

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It says what it says.

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It's not disputed.

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And it's very similar in its terms to the confidentiality terms that this court has previously proved in community hospital.

[00:05:22] Speaker 06:
Yes, but you didn't cite in your brief the cases that came later where we disapproved.

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Which I found a little surprising.

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Your Honor, the community hospital case was simply always relied upon by this court in Hyundai of America just last year in 2015.

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Well, wait a minute.

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I don't remember the names.

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The first opinion is the one written by Doug Williamsburg.

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The second is the one written by Griffin.

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And the third is the one written by Williams.

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Isn't that correct?

[00:05:50] Speaker 04:
Your Honor, I'm sorry I don't know the authors of this court's opinions.

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You don't remember the names of the judges?

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The one written by Williams is Hyundai.

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You don't remember the names of the judges?

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I do my best.

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I barely remember my children's names.

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We all remember different things.

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I can't remember.

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But first, you're relying on the first case, the one written by Doug Ginsburg, right?

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Your Honor, we're relying on a variety of cases, depending on the issue, for the confidentiality agreement.

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But wasn't it clear there was tension in our cases?

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Judge Williams made that clear?

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Nevertheless, he relied on the same principle.

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Your Honor, with respect to confidentiality agreements, we believe that the law is, as this Court most recently interpreted it, in Hyundai of America, which is reaffirming what it held in community hospitals, which is simply that an agreement that states that confidential information is protected is not overbroad because a reasonable employee would interpret that only to mean information acquired in confidence.

[00:07:00] Speaker 06:
That is not my recollection of the cases.

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But that was not in the second case, and it's not in the third.

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You're talking about Hyundai, right?

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Yes, Your Honor.

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Well, Your Honor, Hyundai recently reaffirmed the community hospital.

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As a matter of fact, in Hyundai, dealing with a specific rule, this court noted that the question is fairly straightforward.

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And in Hyundai, they cited community hospitals for the question of an electronic communications policy that limited employees

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distribution of information on the electronic communications.

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And so the question is really simple.

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Is it more like the ruling community hospital or is it more like the ruling syntax?

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And your syntax is Judge Griffiths.

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I'm sorry, Your Honor.

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Don't you remember who writes the opinions?

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I remember a few from law school and Judge Justice Marshall sticks out in my mind on a couple.

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But Your Honor, the one thing to wear a black robe is another thing to be anonymous.

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I see your point.

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It's just a strictly illegal argument.

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You want to rely on the first case we decided on this issue, not the second and third.

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No, Your Honor, I would disagree respectfully because Hyundai specifically said there are two ways of looking at the rules.

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One is community hospital, and that's a 2015 case.

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I believe it was November of 2015 in this court.

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So is the rule more like community hospital, in which case it's legal?

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or is it more like the rule in Cintas, which is overbroad?

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And community hospital was a rule, a handbook rule prohibiting the release or disclosure of confidential information concerning patients or employees.

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That's correct, Your Honor.

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And that was permissible.

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And that was permissible because this court held that no reasonable employee would understand confidential information

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unless it's defined more narrowly or more broadly to be something other than information acquired in confidence.

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And that rule has never been overturned or challenged by this court.

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But here, the confidentiality agreement applies to wages, for example.

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And so the board said, well, that's squarely within the scope of Section 7, and that is overbroad.

[00:09:30] Speaker 04:
Well, Your Honor, I respectfully point out that the

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descriptions that are provided in the agreement are descriptions of the general term confidential information, which if understood in the context of the one page agreement that this confidentiality agreement is.

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But the board makes a decision, I'm sorry, the board makes a decision based on what it thinks the reasonable employee would understand and there's a certain amount of deference to that determination.

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I actually would

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I think that you could focus more on the investigative confidentiality issue.

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And here, it's very, the record is very difficult to parse.

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A lot, in my view, depends on who has the burden to show what.

[00:10:16] Speaker 02:
It does seem like this form, even though it was not a form that was distributed to employees, contains a confidentiality policy.

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It seems pretty clear that Banner has some kind of investigative confidentiality policy.

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The difficulty is the contours of it are not at all clear, in my view, on the record.

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And so then the question is, given that you clearly do have a policy, the contours of which are extremely unclear, and the devil is in those details.

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I mean, it really matters what the scope of it is.

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Who wins?

[00:10:49] Speaker 04:
Well, Your Honor.

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I appreciate the opportunity to address the confidentiality during investigations issue because that is indeed problematic.

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Most of the board cases that interpret directives to employees or apply questions of whether or not confidentiality during investigations was legal under Section 7 deal with specific directives on a specific set of cases, not a general policy.

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There are very few board cases that deal with a broad policy

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that's applied to employees during an investigation.

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And only one case that we can identify where that policy was an oral policy that was not distributed to employees and broadly understood as far as its terms.

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And that was the Hyundai case.

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And in that case, there was no dispute about what the policy was.

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It said all investigations must be treated as confidential.

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And conceitedly, that's overbroad.

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That cannot stand.

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The question, though, is if that's not the policy, then it's something that's not communicated to employees broadly.

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If it's something that's not on the facts of this case, for example, issued to the employee on the facts before the board, then what is it?

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And it is the board's obligation, it is the general counsel's duty to establish a violation of law.

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And how do you do that with respect to a quote unquote policy?

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The general counsel has to at least identify what that policy is.

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provide fact-showing that it is used in a way that restricts Section 7 rights.

[00:12:26] Speaker 02:
Just thinking, if this were a memo from a company memo that said, let's ask all employees, if used the exact language that's on this prompt form, which does refer to all employees, let's tell all employees to keep this conversation or this matter confidential.

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And that would be sort of a smoking gun internal piece of evidence that there was a blanket policy.

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Absolutely, Your Honor.

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So the board has really given you a gift by saying that they're interpreting it as covering only categories of sensitive.

[00:13:07] Speaker 04:
Well, but the facts, that's the record.

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And it's not even the record that it was categories of cases.

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The reason we have the record we have is there was no charge alleging an illegal policy or anything regarding illegal confidentiality.

[00:13:24] Speaker 04:
That happened as a result of the counsel for the general counsel reviewing documents after his case in chief enclosed and then coming in, moving to reopen the case, amending the complaint, and basically conducting an investigation of one witness on the stand based on having seen the confidentiality form.

[00:13:43] Speaker 02:
Don't they have the authority to do that though?

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As the board?

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They have the authority to, if they find a policy that's unlawful, to identify it as such?

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your honor, the board certainly has the right to amend it, issue a charge or amend a charge, conduct an investigation and issue a complaint on that.

[00:14:04] Speaker 04:
We are left in a situation and we don't challenge, we are not here to challenge the due process issues with respect to that.

[00:14:10] Speaker 04:
What we're here to challenge is that because there was no investigation, other than a deposition of a witness on a stand during a trial, that we don't have the record the board needs to establish the broad rule that it tried to adopt.

[00:14:24] Speaker 06:
Your point, going to the first issue, I must confess I think you have a much stronger point.

[00:14:31] Speaker 06:
Your basic argument is,

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that there is no showing that the human resources official had specifically told anybody that that person must keep the investigation confidential.

[00:14:48] Speaker 04:
That is correct, Your Honor.

[00:14:50] Speaker 04:
Zero evidence.

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Zero evidence.

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The deposition, essentially, the investigation, the evidence that the General Counsel put on at the hearing consists of about a dozen questions because the General Counsel didn't know what that form was.

[00:15:05] Speaker 04:
And so it asked the witness, well, what is this?

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Do you show it to all employees?

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There were about 12 questions, and he dropped the examination completely after finding out.

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And the answer the witness said is,

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I don't.

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I don't tell everybody that they should keep it confidential.

[00:15:22] Speaker 04:
That's correct, Your Honor.

[00:15:23] Speaker 04:
And the general counsel never asked questions of, well, when was the last time that you used this in an investigation?

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What was that investigation about?

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Who was involved?

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Did it implicate the facts to ask and lay a foundation for showing that it implicated Section 7 rights?

[00:15:41] Speaker 06:
The board's rule, I gather, is the board's principle.

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rule of decision that you wish was to establish is that you can't have a blanket rule dealing with confidentiality of an investigation.

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It has to be done case by case.

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And there's no dispute.

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Your Honor, there is no dispute that you can't have a blanket policy.

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But how human resources personnel apply that policy is always going to be whatever the confidentiality parameters that they try and apply, interpreting various laws and furthering the interests of Congress in various ways.

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Whatever that is,

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is going to be a case-by-case basis if it's not a policy that's distributed in a handbook, given to all employees that then might impact their exercise of Section 7 rights.

[00:16:31] Speaker 04:
There's got to be some way that it limits Section 7 rights, even if it is the potential for limiting Section 7 rights, that it chills under Lutheran heritage.

[00:16:41] Speaker 02:
What if all we had were the document with the prompt and we didn't have the testimony

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reporting to limit it to sensitive investigations.

[00:16:55] Speaker 02:
Your Honor, if there were... Lack of substantial evidence to support the notion that there is a broad policy of orally imposing confidentiality of investigations.

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obligation.

[00:17:06] Speaker 04:
Your honor, the board would have been required to meet.

[00:17:10] Speaker 04:
It's pretty much just showing that how Banner applied that interpretation of what sensitive meant violated the act.

[00:17:20] Speaker 02:
No, it's sensitive isn't even in the paper prompt, right?

[00:17:23] Speaker 02:
So they wouldn't have had any obligation to detail what sensitive is.

[00:17:27] Speaker 02:
I'm saying without the testimony, just someone saying, oh, yeah, that's a prompt we use when we do investigations.

[00:17:33] Speaker 02:
If that were the only record, they could have said, looks like a blanket policy to us.

[00:17:37] Speaker 02:
It wasn't distributed to the employees, but it was distributed to people on the other side of the desk.

[00:17:41] Speaker 02:
So that's de facto, that's enough.

[00:17:44] Speaker 04:
That would have been enough, except the general counsel asked a question, which is- I'm following you, but I'm just giving you a hypothetical.

[00:17:50] Speaker 04:
Absolutely, Your Honor.

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If there had been a general policy in Banner, it's not taking the position, I don't believe the employer community or amici, are taking the position that a broad policy of

[00:18:01] Speaker 04:
always requiring confidentiality in any employee investigation is inappropriate.

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Though I will point out that that is the very rule that courts utilize every single day that the National Labor Relations Board relies upon administrative law judges applying every single day to keep witnesses out of a courtroom or out of a hearing room so that they are not tainted

[00:18:26] Speaker 04:
Inadvertently, not necessarily intentionally.

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Inadvertently tainted in that investigation that the court or the National Labor Relations Board of Administrative Logic.

[00:18:36] Speaker 02:
It's not the same rule at all.

[00:18:37] Speaker 02:
A rule that says don't talk about your observations or your testimony or the facts of this case with someone else who's going to be a witness.

[00:18:47] Speaker 02:
That's a way narrower rule than the rule of keep this matter confidential.

[00:18:53] Speaker 04:
your honor, only if you interpret it in the broadest manner possible.

[00:18:58] Speaker 04:
If you look at what Banner had actually done to not impact Section 7 rights, to not have a broad policy that applied to all investigations, to make sure that it was

[00:19:09] Speaker 04:
It was not disseminated broadly to employees to make sure that it was limited to ongoing investigations.

[00:19:16] Speaker 04:
That's something that the board, prior to this current set of cases, has long held is a legitimate interest.

[00:19:24] Speaker 04:
And it's a limited restriction on Section 7 activities because it's limited in duration.

[00:19:30] Speaker 04:
And if you combine all the things... In other words, here's your paradigm case.

[00:19:36] Speaker 06:
You have a charge of sexual harassment.

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or even some kind of sexual assault.

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And you start an investigation of that.

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And you want to keep it quiet during the life of the investigation, because if it's A, so explosive, and B, you want to protect the rights of the victim.

[00:19:59] Speaker 06:
So in that kind of case, you ask for confidentiality during the investigation, and no board in the world would ever say that's improper.

[00:20:08] Speaker 04:
Well, Your Honor, this board has.

[00:20:10] Speaker 06:
No, it hasn't.

[00:20:11] Speaker 04:
This board specifically said the factors that it identified and the only factors that the employer community right now has to rely upon if this decision stands are that witnesses need protection, that there are threats that have to be avoided, or that the testimony will be taken.

[00:20:32] Speaker 06:
Did not the board say it was okay on a case by case?

[00:20:36] Speaker 02:
And the board said that its list of rationales was not exhaustive also.

[00:20:44] Speaker 02:
The board also said that the examples that it gave were not exhaustive, the rationales that could be sufficient for... In other words, they said case by case.

[00:20:53] Speaker 06:
Right.

[00:20:54] Speaker 06:
Yes.

[00:20:57] Speaker 06:
fighting with that.

[00:20:58] Speaker 04:
Your honor, I'm not fighting that a blanket prohibition is inappropriate.

[00:21:04] Speaker 04:
What we take issue with is that the parameters that the board has established, saying that an employer community can't give its general human resources personnel who are charged with this the ability to know that in a sexual harassment case.

[00:21:21] Speaker 06:
You win on this case of

[00:21:23] Speaker 06:
sufficiently just by our concluding that there's no evidence that the human resources person ever communicated anything to an employee.

[00:21:34] Speaker 04:
Yes, and Your Honor, that is exactly what this National Labor Relations Board did the second time it had the bite at the apple.

[00:21:40] Speaker 04:
The first time it incorrectly interpreted the record, it fixed that the second time.

[00:21:44] Speaker 04:
It never held that Ms.

[00:21:45] Speaker 04:
O'Dell had given that directive to Mr. Navarro, the charging party, and the only investigation before the board.

[00:21:51] Speaker 06:
What do you mean it fixed it in the second time?

[00:21:52] Speaker 04:
It did not.

[00:21:55] Speaker 04:
It expressly avoided a finding that Ms.

[00:21:57] Speaker 04:
O'Dell had given that directive to Mr. Navarro.

[00:22:03] Speaker 04:
Your Honor, nonetheless... What are you using?

[00:22:05] Speaker 06:
I don't understand what you mean when you said it fixed it.

[00:22:08] Speaker 04:
It corrected the mistake of fact that it had established or had articulated the first time around.

[00:22:16] Speaker 02:
And then relied on that she had sensibly communicated this to other employees.

[00:22:22] Speaker 04:
That's right, Your Honor.

[00:22:25] Speaker 04:
it dealt with a hypothetical situation that simply was not before the board or before us and that is the problem when the board is interested in changing the law and in dramatic ways setting down what is to the employer community an unworkable standard that human resources personnel day in and day out are going to have to figure out how it employs section seven rights

[00:22:48] Speaker 04:
might be implicated, it might be impacted, and how that might pass muster with any particular national relations board, that when it's going to make that kind of rule, it deserves full briefing on the facts of a case, not on some half-dozen questions about hypothetical situations that weren't before the board.

[00:23:10] Speaker 02:
Mr. Kisikevich, it is a really difficult question.

[00:23:13] Speaker 02:
Whether an employer can come up with a

[00:23:18] Speaker 02:
description of the types of situations in which investigative confidentiality is warranted and have, in some sense, a general, although nuanced, policy or whether, as the board says, you really just have to do it case by case.

[00:23:35] Speaker 02:
You really have to do it case by case.

[00:23:36] Speaker 02:
And I gather you're pushing against the idea, assuming

[00:23:41] Speaker 02:
that we do have a record on which we could decide the issue, you're saying it can't be a rule that it's case by case.

[00:23:48] Speaker 02:
And I guess it's not clear to me what the alternative rule could be that would sufficiently protect Section 7 rights and also the legitimate interests and confidentiality where they exist.

[00:24:00] Speaker 04:
And your honor, in an appropriate case with appropriate briefing, where those issues are spelled out for the board, the board could exercise its discretion and look at the policy reasons based on a set of facts and arguments and principles.

[00:24:13] Speaker 04:
And that's its adjudicative compliance with the AP process, is then that it hears things, it decides facts or cases and makes law based on those facts.

[00:24:24] Speaker 04:
To do it hypothetically is inappropriate because we haven't had the chance to brief the board.

[00:24:29] Speaker 02:
I guess the question is, why

[00:24:29] Speaker 02:
When does the burden shift to you to show that your policy is lawful?

[00:24:34] Speaker 02:
They've said, look, you clearly have a policy.

[00:24:37] Speaker 02:
And okay, you said it only applies to sensitive cases, but that's still overbroad.

[00:24:42] Speaker 02:
There are a lot of cases, I mean, there are plenty of harassment cases where the interest with the only witnesses is the witness you've already heard from, and that person wants to speak out because that person wants other people not to fall prey to this harasser and wants to push for some policies that will prevent in the future.

[00:25:01] Speaker 04:
where's the confidentiality interest there so you can't just sort of say oh sensitive cases your honor i i wish that we had the opportunity to fully brief the reasons why it's necessary in certain circumstances for the board to accept limited restrictions on section seven rights that is going to be a restriction on section seven

[00:25:24] Speaker 04:
understood, Your Honor.

[00:25:25] Speaker 04:
But most sexual harassment... But Your Honor, it's based upon hypotheticals.

[00:25:31] Speaker 02:
We have not had the opportunity to litigate it based upon... It's based on the policy that you have and that your human resources person

[00:25:39] Speaker 02:
Testified to.

[00:25:40] Speaker 04:
Your Honor, our human resources person testified she did not issue it in this case, and she did not routinely issue a request for custody in jail.

[00:25:48] Speaker 04:
Just in sensitive cases.

[00:25:50] Speaker 04:
In the more sensitive cases.

[00:25:51] Speaker 04:
And the general counsel's question, next question could have been, well, let's talk about what is that?

[00:25:56] Speaker 02:
I think they thought they had everything they needed.

[00:25:57] Speaker 02:
That's why I think it's a burden question.

[00:25:59] Speaker 02:
They thought they had everything they needed.

[00:26:00] Speaker 02:
That policy, too broad, up to you to say, no, no, we don't mean categories.

[00:26:06] Speaker 04:
Even having that policy, you have to show when it's not articulated to employees, when it hasn't chilled the exercise of Section 7 rights, which is what most of the board cases that deal with this issue are about, there's a rule that employees see and it chills their activities.

[00:26:23] Speaker 04:
simply having a rule that is not applied in a particular set of circumstances that limits or restricts Section 7 activity is not illegal.

[00:26:33] Speaker 04:
It has to be articulated to the employees, which is why most of these cases that come before the board and the courts are dealing with a specific directive on a specific set of facts.

[00:26:45] Speaker 04:
And the board, instead of dealing with the facts that it was given, that it had,

[00:26:50] Speaker 04:
And its failure to develop a more robust record that might have established a violation, I think it would not, but might have established a violation within the period of time, the 10-B period limitations period, it simply had some speculation or testimony about hypothetical situations and did not ask the question, do you ask that confidentiality request in all sexual harassment investigations?

[00:27:16] Speaker 02:
Would you defend, now this prompt is openly known, it's in a public record, and would you defend the company continuing to use that?

[00:27:28] Speaker 02:
Do you know whether they continue to use it?

[00:27:30] Speaker 04:
In appropriate cases, Your Honor, which is what we contend Banner did, but that's not part of the record.

[00:27:35] Speaker 02:
Right.

[00:27:35] Speaker 02:
I understand that.

[00:27:36] Speaker 04:
Yes, Your Honor.

[00:27:37] Speaker 04:
The reason Banner's policy or approach was as it is, as opposed to a blanket prohibition, is because of cases that came out of the National Labor Relations Board that it was trying to make sure it complied with the law, which at that point was a limited directive for confidentiality based upon some

[00:27:57] Speaker 04:
legitimate basis that's limited to the period of the investigation.

[00:28:01] Speaker 04:
Remember, Caesars Palace were dealing with a situation where that was a rule that was board approved in a specific investigation.

[00:28:09] Speaker 04:
Phoenix Transport, where the board held it was illegal, was because they applied the rule two years after the fact.

[00:28:16] Speaker 04:
During an ongoing investigation, there is a legitimate reason in many cases.

[00:28:20] Speaker 02:
Sometimes, right.

[00:28:22] Speaker 02:
But what you didn't put in the record either, I mean the record is slim on both sides, you didn't put in something saying, this is how we train our human resources people to use this.

[00:28:31] Speaker 02:
You know, here's what counts for confidentiality.

[00:28:34] Speaker 02:
Here's what doesn't.

[00:28:35] Speaker 02:
Here's where we worry about, you know, even during an ongoing investigation, employees, that may be exactly when employees want to be talking among themselves and seeing whether there's some action.

[00:28:48] Speaker 04:
Yes, Your Honor, and that is exactly the situation.

[00:28:52] Speaker 04:
As the General Counsel realized, he was basing it upon a misunderstanding that this form was shown to employees and given to employees, and that it was used all the time.

[00:29:01] Speaker 04:
And when the hotel, the HR person testified, no, don't use it all the time, didn't give it to Mr. Navarro, they called back Mr. Navarro.

[00:29:08] Speaker 04:
Mr. Navarro never claimed he was told to keep things confidential.

[00:29:12] Speaker 04:
That was it.

[00:29:13] Speaker 04:
That was the extent the burden never shifted to banner health to justify a policy that board failed to establish it had.

[00:29:22] Speaker 04:
Your honor, turning finally very quickly to the confidentiality agreement because I do believe we'll give you some time for a bottle.

[00:29:31] Speaker 03:
Thank you, your honor.

[00:29:46] Speaker 01:
Good morning.

[00:29:47] Speaker 01:
May it please the Court, Joel Heller for the National Labor Relations Board.

[00:29:51] Speaker 01:
Employees' right to communicate with each other regarding terms and conditions of employment is core to the right to organize.

[00:29:58] Speaker 01:
Banner's maintenance of two over-broad confidentiality policies that restrict that right must violate Section 8A1 of the NLRA.

[00:30:05] Speaker 01:
We have the confidentiality agreement, which expressly defines confidential information as including wages and discipline, which are core terms and conditions of employment.

[00:30:15] Speaker 01:
And that is under the reasoning of this court in cases like Santos and Garsburg.

[00:30:19] Speaker 05:
Well, it says more than that.

[00:30:21] Speaker 05:
It says private employee information, such as salaries, et cetera.

[00:30:25] Speaker 05:
that is not shared by the employee.

[00:30:27] Speaker 01:
Correct.

[00:30:27] Speaker 01:
It conditions the use of, it conditions the discussion of wages, discipline on action taken.

[00:30:34] Speaker 05:
Well, community said, community hospital says, a reasonable reader of the rule would understand the confidential information to exclude the terms and conditions of his or her own employment.

[00:30:46] Speaker 05:
I certainly, if I saw that rule, I wouldn't think it applied to me.

[00:30:50] Speaker 05:
That's your burden.

[00:30:53] Speaker 05:
That's the law that Judge Shulman was talking about.

[00:30:55] Speaker 05:
That's what community says.

[00:30:56] Speaker 05:
And that's what Hyundai picks up.

[00:31:00] Speaker 05:
The test is whether a reasonable employee would think to apply.

[00:31:03] Speaker 05:
It doesn't matter that it says something about salaries.

[00:31:06] Speaker 05:
There are some situations where personnel records, an employer has every interest in keeping them confidential.

[00:31:13] Speaker 05:
And they're saying to you, you can't share Joe's information merely because you have access to it.

[00:31:19] Speaker 05:
Yes, that's the rule.

[00:31:20] Speaker 05:
You can't do it.

[00:31:22] Speaker 05:
So the rule... Unless Joe says, it's okay.

[00:31:25] Speaker 05:
That's what the rule says.

[00:31:27] Speaker 01:
Yes, that is banner 2.

[00:31:28] Speaker 01:
There is a Section 7 right to discuss not only one's own terms and conditions of employment, but also the terms and condition of one's co-worker.

[00:31:36] Speaker 01:
The NLRA protects concerted action from mutual aid or protection.

[00:31:41] Speaker 05:
Wait, wait, wait.

[00:31:41] Speaker 05:
Can we just look at this agreement?

[00:31:43] Speaker 05:
This agreement seems clearly to be protected by Hyundai's reading of community hospitals.

[00:31:49] Speaker 05:
unless you think an employee would think this covers that person as well.

[00:31:54] Speaker 05:
That's not the way I read the rule, not shared by the employee, meaning the employee about whom you want to talk, not you.

[00:32:00] Speaker 01:
Correct.

[00:32:00] Speaker 01:
The Banner's policy restricts my ability to discuss

[00:32:09] Speaker 05:
confidential information about another employee that that employee has not consented that you have the right to do.

[00:32:15] Speaker 01:
Correct.

[00:32:16] Speaker 01:
And unlike the rule in community hospitals, it defines confidential information.

[00:32:20] Speaker 01:
It says it's wages or salaries, disciplinary action.

[00:32:25] Speaker 01:
The rule in community hospitals just said confidential information.

[00:32:29] Speaker 01:
And the court read that to mean, or it says a reasonable employee would understand that to mean

[00:32:34] Speaker 01:
information acquired in confidence.

[00:32:36] Speaker 01:
Here we have any information that is not shared by your fellow employee.

[00:32:41] Speaker 01:
It doesn't talk in terms of acquired in confidence.

[00:32:44] Speaker 01:
For example, this would prevent, this policy would prevent an employee who innocently obtained someone else's information if that other coworker left something on the photocopier, for example.

[00:32:56] Speaker 01:
And it is in those, it is that situation.

[00:32:59] Speaker 01:
So this, it was not, this is not an employee who packs into the employer's computer system and learns everybody's terms and conditions.

[00:33:06] Speaker 01:
This, a reasonable employee would understand this confidentiality to preclude discussion in the situation, in the photocopier situation.

[00:33:14] Speaker 06:
Yes, sir.

[00:33:17] Speaker 06:
I am an employee who's gotten a secret amount of money

[00:33:24] Speaker 06:
let's say a dollar an hour more than everybody else, because I'm such a super employee.

[00:33:31] Speaker 06:
And John Doe learns from whatever source that I'm making more money than everybody else.

[00:33:43] Speaker 06:
And he tells everybody else.

[00:33:49] Speaker 06:
And he tells the union leader who runs in

[00:33:53] Speaker 06:
raising hell, saying this is a violation of 8A1 to pay one employee more than the bargain raise.

[00:34:01] Speaker 06:
Is this your hypothetical?

[00:34:05] Speaker 06:
Is this your paradigm hypothetical?

[00:34:09] Speaker 06:
that the employer's rule would violate, would restrict that employee, John Doe, from telling about X's extra amount of money because X didn't give him permission to say that.

[00:34:27] Speaker 01:
Great, that is what Banner's policy would do.

[00:34:29] Speaker 06:
So therefore your view is that violates section seven.

[00:34:34] Speaker 01:
Yes.

[00:34:35] Speaker 01:
Yes.

[00:34:35] Speaker 05:
What are you doing with the private employee information in the rule?

[00:34:41] Speaker 01:
Private employee information.

[00:34:43] Speaker 01:
I mean, an employer cannot restrict what is otherwise, in terms of, I cannot restrict what employee otherwise has the right to discuss immediately by labeling it private or confidential.

[00:34:54] Speaker 01:
You're not realizing my question.

[00:34:54] Speaker 05:
Private, the employer, now it may be that it's ineptly drawn,

[00:35:01] Speaker 05:
But it certainly is of a case of the sort, like community, where we said it's OK.

[00:35:05] Speaker 05:
And the fact that it's salary is not the answer.

[00:35:07] Speaker 05:
It could be health, whatever.

[00:35:09] Speaker 05:
So they say private employee information.

[00:35:11] Speaker 05:
That connotes nothing?

[00:35:14] Speaker 01:
It is defined.

[00:35:15] Speaker 01:
Private employee information is defined as?

[00:35:19] Speaker 01:
salary's disciplinary action that is not shared by the employee.

[00:35:23] Speaker 05:
And so for the reasons... Private employee information and then per rent, such as salary's disciplinary action, yes.

[00:35:32] Speaker 01:
Right.

[00:35:32] Speaker 01:
And so the word, if there was no further definition,

[00:35:38] Speaker 01:
And this would be a different case.

[00:35:39] Speaker 01:
It would be more like community hospitals, where it was a more open-ended rule, where it just said confidential information.

[00:35:46] Speaker 05:
I mean, finding something on the Xerox, I mean, it seems to me you can make a fairly easy argument.

[00:35:50] Speaker 05:
It wasn't private.

[00:35:51] Speaker 05:
It was laid out in the open.

[00:35:52] Speaker 05:
So I'm not covered by the rule.

[00:35:55] Speaker 01:
But it was not shared by that employee.

[00:35:57] Speaker 05:
Well, it doesn't even get to the private.

[00:36:00] Speaker 01:
But this is how we defined private.

[00:36:03] Speaker 01:
Private information is defined as such as

[00:36:08] Speaker 01:
It is information that is not shared by the employee.

[00:36:11] Speaker 01:
Examples include salaries, disciplinary action.

[00:36:15] Speaker 01:
So in the situation I described with the photocopier, that information was not shared by the employee.

[00:36:21] Speaker 01:
Therefore, it is private information under Banner's rule.

[00:36:24] Speaker 01:
And remember, we are construing Banner's rule against Banner as the promulgator of the rule.

[00:36:34] Speaker 01:
Turning to the other issue in this case, and that is the investigatory interviews.

[00:36:40] Speaker 01:
And the problem with Banner's approach is that it requests confidentiality in certain types of investigation without an individualized determination that such confidentiality is necessary.

[00:36:55] Speaker 02:
We don't really even know that from the record, though, do we?

[00:36:58] Speaker 01:
So here's how we know it.

[00:37:00] Speaker 01:
First of all is the form itself, which sets out the language that an HR rep would use in the course of investigating.

[00:37:10] Speaker 05:
Not everyone.

[00:37:11] Speaker 01:
Not all the time.

[00:37:13] Speaker 01:
In the cases in which an HR rep

[00:37:17] Speaker 05:
In her discretion decides to do it.

[00:37:20] Speaker 05:
Sorry?

[00:37:21] Speaker 05:
In her discretion decides to do it.

[00:37:23] Speaker 05:
Right.

[00:37:23] Speaker 01:
This is the language that she would use.

[00:37:25] Speaker 06:
Is it your view that that is never appropriate to ask for confidentiality?

[00:37:29] Speaker 01:
No, that is not the board's view.

[00:37:30] Speaker 06:
So your view is it's case by case, right?

[00:37:32] Speaker 01:
The board's view is that it is case by case.

[00:37:33] Speaker 06:
You have them define the areas where you think it's appropriate.

[00:37:37] Speaker 06:
So you're, and understandably, you think it's difficult and you want to go case by case.

[00:37:42] Speaker 06:
So why is this not a situation where the company is doing case by case?

[00:37:47] Speaker 06:
Therefore, it is saying we're doing exactly what the board asked.

[00:37:50] Speaker 01:
So we have set forth some examples in the Caesars Palace case, but as was pointed out earlier, that was not an exhaustive list.

[00:37:57] Speaker 01:
So the other evidence that we have is the testimony from Joanne O'Dell, who is the HR representative for Benner.

[00:38:03] Speaker 01:
And when she was asked about particular types of investigations, she responded by giving categories, sexual harassment, hostile work environment, abuse.

[00:38:13] Speaker 05:
She didn't say in every one of those categories.

[00:38:15] Speaker 05:
She said, those would be the kinds of cases that I might do it.

[00:38:19] Speaker 05:
There's no proof of a general rule being applied all the time.

[00:38:23] Speaker 05:
There's no proof of whatever rule it is being applied in this case.

[00:38:27] Speaker 01:
So the, Odell testified that she read this language on the form on JA 81.

[00:38:34] Speaker 01:
and around six times in her approximately a year that she had worked at Banner at that point.

[00:38:39] Speaker 01:
Yeah.

[00:38:40] Speaker 01:
So there is evidence that she read this prompt.

[00:38:43] Speaker 01:
Yeah.

[00:38:43] Speaker 01:
She testified as to the types of investigations in which she would do so, and it's a clear inference from the record.

[00:38:50] Speaker 05:
Not all the time.

[00:38:51] Speaker 05:
She didn't say all the time.

[00:38:53] Speaker 05:
So it's, she, she doesn't speak up.

[00:38:56] Speaker 05:
You have the, I mean,

[00:38:58] Speaker 05:
You're trying hard, and you're doing it very aggressively, and that's good.

[00:39:01] Speaker 05:
You're doing it with an attorney.

[00:39:02] Speaker 05:
But you don't have any case here.

[00:39:04] Speaker 05:
It's horrible examination.

[00:39:06] Speaker 05:
The board has no case here whatsoever.

[00:39:08] Speaker 05:
And you're not supposed to say that, but I want you to understand at least one judge up here read this and said, you've got to be kidding.

[00:39:14] Speaker 05:
There's no proof here.

[00:39:16] Speaker 05:
It wasn't applied in this case.

[00:39:17] Speaker 05:
There's no proof of a general rule, and there's no proof that the categories referred to are always employed.

[00:39:24] Speaker 05:
It's the only way you got it.

[00:39:25] Speaker 01:
Two things in response to that.

[00:39:27] Speaker 01:
Good smile.

[00:39:30] Speaker 01:
Thank you.

[00:39:30] Speaker 01:
So first of all, it was well established that the mere maintenance of an unlawful policy is a violation.

[00:39:37] Speaker 01:
The board doesn't have to show that in a particular case, it restricted section 7 rights.

[00:39:42] Speaker 01:
What's the policy?

[00:39:43] Speaker 05:
The policy is that sometimes, if a circumstance seems appropriate to me, I may, what?

[00:39:52] Speaker 05:
What's unlawful?

[00:39:54] Speaker 01:
Odell's testimony is that in types of investigations, for example, sexual harassment investigations, which was the case in the Phoenix Transit system case, she would read the slang that she came up with.

[00:40:04] Speaker 02:
She might.

[00:40:05] Speaker 01:
Might.

[00:40:05] Speaker 01:
Might.

[00:40:06] Speaker 01:
Might.

[00:40:06] Speaker 01:
Might.

[00:40:07] Speaker 01:
She did not use that word.

[00:40:08] Speaker 01:
That was the lawyer's word asking the question.

[00:40:09] Speaker 01:
That was the lawyer.

[00:40:10] Speaker 02:
That was the lawyer.

[00:40:11] Speaker 02:
No objection was made to leaving.

[00:40:13] Speaker 02:
Typical for sensitivity.

[00:40:14] Speaker 02:
Any other examples of sensitive issues where you might make this request?

[00:40:18] Speaker 01:
So I agree that reading the transcript is somewhat of a David Mamet play, where we're just having little bits of dialogue.

[00:40:25] Speaker 01:
It's not spoken in complete sentences.

[00:40:27] Speaker 05:
Whose burden is this?

[00:40:29] Speaker 01:
So once the general counsel must show that there is a reasonable, that a policy would reasonably be understood to restrict Section 7 rights.

[00:40:40] Speaker 01:
then the employer has the burden of justifying that restriction.

[00:40:44] Speaker 05:
You think the general counsel met some burden?

[00:40:46] Speaker 01:
So I think that there is clearly a dispute over how to read the record in this case.

[00:40:52] Speaker 01:
And in those situations, the

[00:40:59] Speaker 01:
It is the board's reading of the record that wins out, unless and so long as a reasonable fact finder could reach that conclusion.

[00:41:06] Speaker 01:
But another way, as long as the opposite conclusion is not compelled by the record.

[00:41:11] Speaker 01:
That is this court's standard of review.

[00:41:12] Speaker 02:
So one of the big points that Mr. Kissicky makes... What does that mean?

[00:41:16] Speaker 06:
What does that mean?

[00:41:16] Speaker 06:
Not compelled by the record?

[00:41:17] Speaker 06:
Where did you get that?

[00:41:18] Speaker 06:
Where are you making this?

[00:41:19] Speaker 02:
You just made our stuff up.

[00:41:20] Speaker 02:
Think about it as a summary judgment standard.

[00:41:22] Speaker 02:
From a reasonable fact finder looking at this, find the way the board is finding it.

[00:41:26] Speaker 01:
From an OVA health system in Bally's Park Place, which are the two cases.

[00:41:31] Speaker 02:
But Mr. Kesey, he says, this wasn't even public.

[00:41:36] Speaker 02:
How could it be chilling, anyone, in a few quiet moments over?

[00:41:41] Speaker 02:
How many investigations does someone like Odell do in a year?

[00:41:45] Speaker 01:
We don't know.

[00:41:46] Speaker 02:
We have no idea, right?

[00:41:47] Speaker 02:
So six could be all of them.

[00:41:48] Speaker 02:
It could be three-quarters of them.

[00:41:50] Speaker 02:
It could be one fiftieth of them, right?

[00:41:54] Speaker 02:
We don't know.

[00:41:55] Speaker 02:
From this record, I don't know.

[00:41:56] Speaker 02:
So anyway, so she's in some cases, she's saying to people, hey, keep this, keep this quiet.

[00:42:03] Speaker 02:
And your position is that that seeps out such that the reasonable employees know that their colleagues have been so asked and that they start to get the idea that there's a policy and that they're chilled by that.

[00:42:14] Speaker 01:
Yes, because this is not a silent, this is not locked in the HR office.

[00:42:20] Speaker 02:
But there's no evidence that it's seen.

[00:42:22] Speaker 01:
It was read to these six employees.

[00:42:25] Speaker 02:
So they'd have to go off and tell people about it.

[00:42:29] Speaker 01:
Yes, but it also adds to them, those employees who actually were read this, it chills their sections of eyes.

[00:42:34] Speaker 06:
You have no idea what the circumstances were.

[00:42:37] Speaker 01:
I think we do.

[00:42:38] Speaker 01:
I think from Odell's testimony in which he identifies, she says, I read this in six investigations.

[00:42:44] Speaker 06:
But we don't know anything about the facts.

[00:42:46] Speaker 06:
They could have been perfectly legitimate in accordance with the board's view.

[00:42:49] Speaker 01:
But the rest of the testimony is identifying those particular types of circumstances where she says the categories.

[00:42:55] Speaker 06:
But you don't know about the cases.

[00:42:57] Speaker 01:
Well, I think it's a fair inference from the record that she read the six times when she read this prompt were the types of cases.

[00:43:03] Speaker 01:
We don't even know if it's six.

[00:43:03] Speaker 05:
She said maybe.

[00:43:04] Speaker 01:
She said, yes.

[00:43:05] Speaker 01:
Maybe.

[00:43:06] Speaker 01:
So be around six.

[00:43:07] Speaker 01:
No, I said maybe.

[00:43:08] Speaker 01:
The maybe six.

[00:43:09] Speaker 01:
So maybe seven, maybe five.

[00:43:11] Speaker 01:
Maybe two.

[00:43:13] Speaker 01:
I'm not sure if two is maybe six.

[00:43:16] Speaker 05:
Would you have examined the witness this way?

[00:43:19] Speaker 01:
Well, I'm an appellate attorney, so.

[00:43:22] Speaker 01:
I don't have to do that.

[00:43:24] Speaker 02:
He pleads it fast.

[00:43:25] Speaker 05:
That was a good answer.

[00:43:27] Speaker 05:
Thank you, sir.

[00:43:28] Speaker 05:
It can't win the case for you, but it was a good answer.

[00:43:31] Speaker 01:
So the fair inference from the record is that in the however many times she read, she said she read this prompt, and she said types of investigations in which she would read the prompt.

[00:43:41] Speaker 01:
So I think it's a fair inference that those investigations in which she did read them were the types in which she said she would read them.

[00:43:47] Speaker 06:
And they include sexual abuse or sexual harassment.

[00:43:51] Speaker 01:
And that includes sexual harassment investigations.

[00:43:53] Speaker 06:
And in a situation like that,

[00:43:55] Speaker 06:
You want to very much keep confidential, for as long as possible, the name of a victim, right?

[00:44:02] Speaker 01:
It depends on the facts.

[00:44:04] Speaker 01:
It must depend on the facts.

[00:44:05] Speaker 06:
Do courts do that?

[00:44:07] Speaker 06:
And I assume even the board would be wise enough to do that.

[00:44:10] Speaker 01:
And the problem with Banner's policy is, like in Phoenix Transit system, it is broad enough that it covers the victim who comes to the HR rep.

[00:44:21] Speaker 06:
You don't know.

[00:44:22] Speaker 06:
You don't know.

[00:44:23] Speaker 06:
You don't know.

[00:44:27] Speaker 06:
bad judgment.

[00:44:28] Speaker 06:
You have no case before you.

[00:44:31] Speaker 01:
So we have the form, the interviewer complainant form.

[00:44:34] Speaker 01:
And one of the introductory statements, one of the alternatives for introductory statement is, I am investigating your complaint of inappropriate behavior, your complaint, the person who brought the complaint.

[00:44:44] Speaker 01:
And so in the Phoenix Transit System case, this court, in affirming the board, talked about how these kind of broad confidentiality policies serve to silence sexual harassment victims.

[00:44:54] Speaker 01:
And that cannot be what is, and that is, and so therefore, the board's policy, or the board's

[00:45:01] Speaker 01:
striking those policies down is not inconsistent with the goals of Title VII.

[00:45:05] Speaker 06:
Well, actually, I have actually done some of these kinds of investigations.

[00:45:09] Speaker 06:
You might well ask the victim to keep it quiet long enough for me to gather evidence on the perpetrator.

[00:45:20] Speaker 06:
And I have done that in an actual couple of cases.

[00:45:24] Speaker 01:
There's nothing wrong with that, is there?

[00:45:27] Speaker 01:
Not as an abstract matter, no.

[00:45:33] Speaker 06:
issue, then it's not very good, is it?

[00:45:35] Speaker 01:
The point is, the board has never said that there is a problem, per se, with confidentiality requests.

[00:45:41] Speaker 01:
The problem is, is the way, and is the approach taken, and their banner must, on a case-by-case basis, identify the need for confidentiality.

[00:45:51] Speaker 01:
Is there something specific about this case?

[00:45:54] Speaker 06:
You don't have a basic policy that is applied across the board.

[00:45:57] Speaker 06:
You have a woman who said she does it occasionally.

[00:46:00] Speaker 06:
in certain kinds of cases.

[00:46:02] Speaker 06:
And you don't have those cases before you, so you don't have a case.

[00:46:06] Speaker 06:
I'm not quite as harsh as my colleague, who usually tells you, you're just wrong.

[00:46:14] Speaker 06:
But I'm almost, I mean, you're just missing the evidence.

[00:46:19] Speaker 01:
Well, all I can do is point you to the testimony from O'Dell in which she identified the particular types of investigations, and I can point you to the broad language in the interview of Complainted Policy itself.

[00:46:31] Speaker 06:
I think you're doing an excellent job as an appellate lawyer, having once been in your place.

[00:46:35] Speaker 01:
Well, thank you.

[00:46:39] Speaker 01:
If there's no further questions, then we ask that you enforce the board's order.

[00:46:47] Speaker 02:
Thank you, Mr. Halloran.

[00:46:51] Speaker 02:
you two minutes.

[00:46:52] Speaker 06:
If I can give you advice on this I don't think you have to say an awful lot on issue number one.

[00:46:57] Speaker 04:
You know I've learned a little bit in my 30 years of practice when I was taking up on that.

[00:47:07] Speaker 04:
I would just like the court to look at the document, the confidentiality agreement.

[00:47:14] Speaker 04:
It's quoted in full in our brief.

[00:47:17] Speaker 04:
It's a one-page document.

[00:47:19] Speaker 06:
Does it not cover exactly my hypothetical?

[00:47:23] Speaker 06:
I am paid, secretly, five dollars an hour more than everybody else.

[00:47:30] Speaker 06:
And another colleague learns that.

[00:47:32] Speaker 06:
I don't care how he learns it.

[00:47:34] Speaker 06:
and tells the union shop steward who raises hell with the company.

[00:47:39] Speaker 06:
And I've violated, according to you, if I may understand, your confidentiality.

[00:47:46] Speaker 04:
Your Honor, how he learned it matters, because employees routinely, as part of their jobs, can learn.

[00:47:54] Speaker 06:
Well, your rule is, I am the one who learned it, not the one who's paid.

[00:48:00] Speaker 06:
I learned it, and I didn't get approval from the fellow who

[00:48:06] Speaker 06:
Who's information is this?

[00:48:07] Speaker 05:
In your answer, it says private employee.

[00:48:10] Speaker 05:
Yes, sir.

[00:48:11] Speaker 05:
It's not just shared.

[00:48:12] Speaker 05:
It has to be private in the first place.

[00:48:14] Speaker 04:
And if it's already been disclosed, if it's not private, if it's not confidential and private.

[00:48:20] Speaker 04:
You don't need any permission.

[00:48:21] Speaker 04:
And there's nothing in this rule that says permission.

[00:48:26] Speaker 06:
Well, wait a minute.

[00:48:26] Speaker 06:
What does the word private mean?

[00:48:29] Speaker 04:
Private means not disclosed, your honor.

[00:48:31] Speaker 06:
So I haven't disclosed.

[00:48:32] Speaker 06:
All right, back to my hypothetical.

[00:48:34] Speaker 06:
I have not disclosed.

[00:48:36] Speaker 06:
that I am paid five dollars more now.

[00:48:41] Speaker 06:
All right, let's say, okay, I disclose it to person B. Is that private information?

[00:48:50] Speaker 04:
No longer, Your Honor.

[00:48:51] Speaker 04:
No longer.

[00:48:51] Speaker 06:
Well, what do you mean, no longer?

[00:48:53] Speaker 06:
I disclosed it saying, hey, this is confidential.

[00:48:58] Speaker 06:
I got a better deal than everybody else, okay?

[00:49:01] Speaker 06:
So that's private now, isn't it?

[00:49:03] Speaker 04:
No, Your Honor, not if it's been disclosed.

[00:49:05] Speaker 04:
Once the person keeps it, once it... Oh, wait a minute, wait a minute.

[00:49:08] Speaker 06:
How can anybody... Now I'm really confused.

[00:49:11] Speaker 06:
How can it be known by anybody else?

[00:49:14] Speaker 06:
If it's... Are you saying private means it's never been disclosed to anybody?

[00:49:18] Speaker 06:
Then it's irrelevant.

[00:49:20] Speaker 04:
No, Your Honor, that's exactly what this is intended to get at, is employees who work with other employees' information.

[00:49:26] Speaker 06:
As a matter of fact... Wait a minute, wait a minute.

[00:49:27] Speaker 06:
Let's deal with my hypotheticals.

[00:49:29] Speaker 04:
Yes, Your Honor.

[00:49:30] Speaker 06:
Because that's what concerns me.

[00:49:32] Speaker 06:
I'm being paid $5 more now.

[00:49:35] Speaker 06:
I tell this in strictest confidence to a friend of mine who's also working there.

[00:49:40] Speaker 06:
He says to himself, God damn it, that's illegal.

[00:49:44] Speaker 06:
And he tells the shop steward.

[00:49:46] Speaker 06:
But I told him it was private.

[00:49:47] Speaker 06:
It was in confidence.

[00:49:48] Speaker 04:
Because, Your Honor, it's also not only has to be private, but this policy is trying to address that issue.

[00:49:55] Speaker 06:
Was that private?

[00:49:56] Speaker 04:
No, Your Honor.

[00:49:58] Speaker 04:
It wasn't private?

[00:49:58] Speaker 04:
It wasn't because it also was information that had been shared.

[00:50:02] Speaker 06:
Well, I don't understand.

[00:50:04] Speaker 06:
Are you saying that then it goes around in circles?

[00:50:08] Speaker 06:
If it's information that has never been shared, then it's not a problem.

[00:50:12] Speaker 06:
I don't know what you're talking about.

[00:50:13] Speaker 04:
Well, Your Honor, the policy is intended to get at human resources, clerks.

[00:50:18] Speaker 06:
The reasonable reading of that is, as I understood it, is if it's disclosed without the permission of the party who owns it, it's a violation.

[00:50:29] Speaker 04:
Permissions never used in the policy runner and that's not what does it say it says Among the many several talk about whether they were asked for approval of the Party who says not sure not shared, right?

[00:50:46] Speaker 06:
May I yes, I didn't agree to share It's agreed to share Harry isn't

[00:50:53] Speaker 05:
No, it just says it's not shared by the employee.

[00:50:57] Speaker 06:
Is that?

[00:50:57] Speaker 05:
Not shared by the employee.

[00:50:59] Speaker 06:
OK.

[00:51:00] Speaker 06:
What does not shared mean?

[00:51:01] Speaker 05:
See, your hypothetical then would be correct, because the employee shared it.

[00:51:05] Speaker 04:
Your Honor, the way this is drafted is intended to make it clear to employees that they could talk about each other's terms and conditions of employment, that there is nothing about this policy that's intended to restrict them from having those discussions.

[00:51:18] Speaker 04:
Or if they learn, other than in doing their jobs,

[00:51:22] Speaker 04:
about another employee in your doing your job.

[00:51:28] Speaker 06:
I want to know what this covers.

[00:51:29] Speaker 06:
Now I'm really confused.

[00:51:31] Speaker 06:
What does this actually cover?

[00:51:32] Speaker 04:
Your honor, the policy is directed towards employees who work in a hospital.

[00:51:38] Speaker 04:
The focus of it is about the hospital.

[00:51:40] Speaker 06:
Please don't bring in the extraneous.

[00:51:42] Speaker 06:
We're talking about information coming from employees.

[00:51:46] Speaker 06:
What is it designed to cover?

[00:51:48] Speaker 04:
Information that the employee acquires in the performance of his or her job.

[00:51:54] Speaker 06:
That includes information that another employee tells me, right?

[00:51:59] Speaker 04:
No, Your Honor, only if it's acquired as part of your job.

[00:52:02] Speaker 06:
If it's information that's learned at the water... Well, when I'm working along with somebody and he tells me he's paid $5 an hour more, why isn't that part of my job?

[00:52:13] Speaker 06:
I mean, I learned it while we were working together.

[00:52:15] Speaker 04:
Because, Your Honor, that's disclosed by the employee whose information it is.

[00:52:20] Speaker 06:
I don't understand.

[00:52:21] Speaker 06:
If the information is never disclosed, why is this even relevant?

[00:52:27] Speaker 06:
I don't get it.

[00:52:28] Speaker 04:
Because people have access to confidential employee information and discipline records that they're not supposed to disclose simply because they get that information when they're transmitting files or they have access.

[00:52:40] Speaker 06:
OK, OK, OK.

[00:52:41] Speaker 06:
Now we have the hypothetical.

[00:52:43] Speaker 06:
I'm paid $5 an hour more than my colleagues up here.

[00:52:49] Speaker 06:
And I think it's way more than that, Larry.

[00:52:52] Speaker 04:
I think it's seniority.

[00:52:56] Speaker 06:
Oh, I only wish that were true.

[00:52:59] Speaker 06:
And one of my colleagues learns that by carrying records to the personnel office.

[00:53:09] Speaker 06:
I haven't shared it.

[00:53:12] Speaker 06:
All right.

[00:53:13] Speaker 06:
And then she goes to the shop steward and says, Look, he's being paid $5 an hour more than everybody else.

[00:53:21] Speaker 06:
That's what you're correct.

[00:53:23] Speaker 03:
Your honor.

[00:53:24] Speaker 06:
Well, why isn't that section seven activity?

[00:53:28] Speaker 04:
Because employers and employees about whose information other I sure I don't want anybody to know about that.

[00:53:36] Speaker 06:
That's it.

[00:53:36] Speaker 06:
It was secret.

[00:53:39] Speaker 06:
Your Honor, that's exactly the point, that if it's your information... It is, but illegal information that is secret shouldn't be shared, shouldn't be disclosed.

[00:53:50] Speaker 06:
Illegal, I'm sorry, illegal... It was illegal because it was $10 more than the contract provided.

[00:54:03] Speaker 04:
and an employee learns about it in the performance of his or her job.

[00:54:07] Speaker 04:
If it is illegal because a contract and violations of the contract, then, Your Honor, I think we're into the world of the National Labor Relations Board, which would take precedence over the illegal contract and therefore void any employee's obligation to comply with confidentiality.

[00:54:24] Speaker 06:
We're not- That's absurd.

[00:54:28] Speaker 06:
Your view of the board,

[00:54:30] Speaker 06:
The board would go nuts with that bill.

[00:54:35] Speaker 06:
That's an interesting answer.

[00:54:38] Speaker 06:
I hope that doesn't convince my colleagues.

[00:54:41] Speaker 05:
You've got a problem with the community.

[00:54:43] Speaker 05:
I'm looking at it again.

[00:54:44] Speaker 05:
I can see what the employer is trying to do here, but the language we've used in these cases is tricky, talking about confidential information.

[00:54:53] Speaker 05:
whether the employee would assume that that foreclosed her or him from talking about their own information.

[00:54:59] Speaker 05:
And the trick, you know, you use private employee information, community talks about confidential, and it's tricky as to what that means when your real policy is to try and protect information that everyone knows ought not be out there.

[00:55:17] Speaker 05:
And I don't know how you write through it.

[00:55:19] Speaker 05:
I'm trying to think.

[00:55:19] Speaker 05:
I used to do this.

[00:55:20] Speaker 05:
I'm trying to think, how do you do it?

[00:55:22] Speaker 04:
And, Your Honor, that is the problem.

[00:55:23] Speaker 04:
Is this National Labor Relations Board is crafting a set of principles that employers simply cannot draft rules to address every hypothetical possibility that

[00:55:34] Speaker 04:
a National Labor Relations Board might find somehow infringed on Section 7 rights.

[00:55:39] Speaker 04:
This policy was intended primarily in a hospital setting, dealing with multiple types of information, and it goes at length into how that information, it says, I promise I'm not going to access computer information.

[00:55:52] Speaker 04:
I'm not going to disclose patient information.

[00:55:54] Speaker 04:
I'm not going to share confidential information.

[00:55:56] Speaker 06:
Oh, patient information is a different problem altogether than you know it.

[00:55:59] Speaker 06:
You can't go anywhere with that.

[00:56:01] Speaker 04:
But Your Honor, I think in the overall context, our position is that the agreement is clear that no reasonable employee should interpret it as restricting Section 7 activities.

[00:56:11] Speaker 02:
Thank you very much, Mr. Secretary.

[00:56:13] Speaker 06:
The case is submitted.