[00:00:01] Speaker 03: Case number 15-1358 at L. Benjamin H. Realty Court Petitioner vs. National Labor Relations Board. [00:00:09] Speaker 03: Mr. Horowitz for the petitioner, Mr. Castille for the respondent. [00:00:43] Speaker 02: Good morning and may it please the court. [00:00:47] Speaker 02: My name is Stephen Horowitz. [00:00:48] Speaker 02: I represent Benjamin H. Reelty, the appellant in this matter. [00:00:51] Speaker 02: This is a test of certification case surrounding the NLRB's decision that one employee who was the tie-breaking vote in a certification election was not a supervisor. [00:01:06] Speaker 02: We clearly maintain that he was. [00:01:10] Speaker 02: Why is it so important? [00:01:11] Speaker 02: Because in an LRB setting, if there is a tie in the election, the election means the election is lost by the union. [00:01:20] Speaker 02: Ties go to the employer. [00:01:22] Speaker 02: If the majority of the people vote for the employer, then there's no union. [00:01:27] Speaker 02: If the majority of the people vote for the union, there's a union. [00:01:29] Speaker 02: But here, there is a tie, and that goes to the employer. [00:01:33] Speaker 02: So this one vote is critical to this case. [00:01:37] Speaker 02: The issues before the court as I raised them was that the NLRB erroneously concluded that Perea was not, this contested voter's name was Perea, was not a supervisor. [00:01:49] Speaker 02: That the NLRB improperly denied our motion to reopen the record when the same individual, Perea, brought a lawsuit in the United States, I'm sorry, in the New Jersey Superior Court, where he alleged that on the date of the election, he was a supervisor. [00:02:06] Speaker 02: and that the employer should not bear the burden of proving supervisory status because of the fact that at the beginning of the hearing and during the course of the hearing, Perry admitted that he was a supervisor at least up through March of 2012. [00:02:23] Speaker 02: The election was in November of 2012. [00:02:25] Speaker 03: It seems to me that the logic of Justice Scalia's Kentucky River decision is that it makes sense [00:02:36] Speaker 03: have the person who will benefit from the classification of the person as supervisor. [00:02:46] Speaker 03: wants to show X to be a supervisor to have that burden, because as he says, it's easier to prove an employer's authority to exercise one of the 12 listed supervisory functions than to disprove an employee's authority to exercise any of these functions. [00:03:04] Speaker 03: So practicality there is placing the burden on the party, asserting supervisory status. [00:03:11] Speaker 03: That seems very logical. [00:03:23] Speaker 02: Isn't it interesting that the triad of cases here that make up this supervisory issue, Kentucky River, Oakwood, Goldencrest, all of those cases revolve around nursing homes, hospitals, assisted living. [00:03:44] Speaker 02: And there's a reason I raise this. [00:03:47] Speaker 02: There is a ratio of registered nurses to LPNs to CNAs in these facilities. [00:03:54] Speaker 02: And what happened in Kentucky River, what happened in Oakwood, what happened in Golden Crest, all those cases is that if employers exceeded the number of LPNs and CNAs, and they had to hire more RNs. [00:04:10] Speaker 02: And the RNs are traditionally the supervisors in those facilities. [00:04:14] Speaker 02: So what happens? [00:04:17] Speaker 02: Employees become disgruntled. [00:04:19] Speaker 02: They form a union. [00:04:20] Speaker 02: Some of those RNs support the union. [00:04:22] Speaker 02: And the employer gets greedy. [00:04:24] Speaker 02: And they start saying, you know what? [00:04:25] Speaker 02: All these RNs are supervisors. [00:04:27] Speaker 02: And in that situation, and why do they do that? [00:04:31] Speaker 02: Because they're trying to exclude those. [00:04:33] Speaker 02: I mean, I take your point. [00:04:35] Speaker 03: Yes. [00:04:35] Speaker 03: That each of the cases involved in those circumstances is an almost universal phenomenon. [00:04:45] Speaker 03: But just to lead it here in Kentucky, [00:04:51] Speaker 03: on a quite reasonable general proposition that would cut across all those particular circumstances and firms the NLRB with apparent enthusiasm. [00:05:08] Speaker 03: For us to start ordering the NLRB to retreat from that on a sort of catch-as-catch-can basis, [00:05:20] Speaker 02: I don't disagree. [00:05:21] Speaker 02: What differs this case from those others is that at no point were those RNs asserted, or did those RNs who were contested in those elections, that they say, I was always a supervisor, and then it was taken away from me. [00:05:37] Speaker 03: I mean, I understand. [00:05:39] Speaker 03: It's a different circumstance. [00:05:40] Speaker 03: You have an apparent, just an assertive shift of status. [00:05:45] Speaker 03: And I suppose that. [00:05:56] Speaker 03: A claim of shittness, then, might be sufficient to undermine the burden allocation. [00:06:05] Speaker 03: We have a confused record here, but I don't think it's quite that. [00:06:13] Speaker 02: Again, the answer to your question is that you've got such a short time frame and such a contested record here about whether he lost it or not. [00:06:25] Speaker 02: So fact specific. [00:06:29] Speaker 03: That's what burdens are for, to resolve highly fact-specific disputed questions. [00:06:37] Speaker 02: Right. [00:06:38] Speaker 02: Listen, the truth of the matter is I don't want to get, and I respect your question, and I know it's raised as an issue here. [00:06:45] Speaker 02: That's my third issue. [00:06:46] Speaker 02: I'm putting the bulk of my argument into the fact. [00:06:52] Speaker 02: And listen, do I think it's unjust? [00:06:55] Speaker 02: Did I think that? [00:06:57] Speaker 02: It was inappropriate, given this set of facts, that in a three-month period between May when he was supposedly losing the supervisory status to the end of August when the petition was filed and November when the election was held, [00:07:14] Speaker 02: Do I think it's really suspicious that it's happening in that short of a time frame? [00:07:18] Speaker 02: Sure. [00:07:19] Speaker 02: Is that the bulk of my argument? [00:07:21] Speaker 02: Absolutely not. [00:07:22] Speaker 02: I did it to preserve an argument, but that is certainly not the thrust of my argument here. [00:07:28] Speaker 02: The thrust of my argument is that the substantial evidence that was provided in this case, both in admissions by the other employees who supposedly supported [00:07:43] Speaker 02: this decision that he was no longer a supervisor as well as the employers witnesses was that [00:07:52] Speaker 02: that the bulk of that evidence shows that this guy was clearly the supervisor. [00:07:57] Speaker 04: You know, the advantage to your burden of proof argument is that it was at least a legal issue that we could look at de novo, whereas now you're putting your whole case on an argument about substantial evidence, and we rarely, rarely set aside NLRB decisions on that ground. [00:08:15] Speaker 04: particularly when it's based on credibility determinations? [00:08:18] Speaker 02: Well, I'm not contesting credibility. [00:08:21] Speaker 02: I'm saying if you take, listen, the rarely applies to the credibility determinations. [00:08:26] Speaker 02: I have been practicing long enough to know that that is a loser argument. [00:08:30] Speaker 02: I do not attack credibility. [00:08:32] Speaker 02: I'm saying take everything that they say to be true. [00:08:35] Speaker 02: And in that situation, you still have substantial evidence that Rhea was a supervisor at the time of this election. [00:08:43] Speaker 02: And there are seven facts here against everything that's in this record. [00:08:47] Speaker 02: It's seven facts that stand out the most. [00:08:49] Speaker 03: That could be true because of the killing nature of substantial evidence. [00:08:56] Speaker 03: It could also be substantial evidence in support of the board's decision. [00:08:59] Speaker 02: No doubt. [00:09:01] Speaker 02: But that's a decision that you're ultimately making as to what I submit. [00:09:05] Speaker 02: I don't think we are ultimately making it. [00:09:06] Speaker 02: That's not the issue. [00:09:07] Speaker 02: That's your problem. [00:09:08] Speaker 02: I'm sorry? [00:09:09] Speaker 03: It's not a decision, but ultimately. [00:09:18] Speaker 02: I agree. [00:09:20] Speaker 02: But the reason that there are three appendices that are about two or three inches thick each that was submitted on this case is that you still get to look at that evidence, and you still get to see if that passes mustard. [00:09:36] Speaker 02: That is still part of the job of this appellate court, and I'm not trying to [00:09:43] Speaker 02: minimize what you said, that it is a tough standard, but it still gets a fresh look here. [00:09:48] Speaker 02: Yes, you have to give deference, but if you look at it and you see that, hey, there's a lot of evidence here that shows that this individual was a supervisor, then you still get to apply your judgment, your experience, to the facts of this case. [00:10:09] Speaker 01: uh... hands you affect us in that regard just yes clear from the record how long have you been a supervisor before she was came on board [00:10:20] Speaker 02: These were buildings that were in existence before my client, that were operating before my client purchased them in 2000. [00:10:26] Speaker 02: He went from approximately four or six, of which Paria was a supervisor when he purchased it, up through 2011 when he had 13 buildings and Paria was still the supervisor. [00:10:40] Speaker 01: So 2000 to 2012. [00:10:40] Speaker 02: 2012 he purchased three more, raising it to 16 buildings, and he was still the supervisor. [00:10:49] Speaker 02: So he was a supervisor throughout this whole time. [00:10:54] Speaker 02: I know I'm out of time here. [00:11:03] Speaker 04: Yeah, why don't you just quickly finish up? [00:11:06] Speaker 02: I'm going to raise those seven facts to you, and then I'm going to sit down and hopefully reserve some time here. [00:11:11] Speaker 04: Are you going to raise seven? [00:11:13] Speaker 02: How about this? [00:11:14] Speaker 02: I'll raise it. [00:11:16] Speaker 04: You could finish up in one minute. [00:11:18] Speaker 02: Come on. [00:11:19] Speaker 02: OK. [00:11:19] Speaker 02: Yeah. [00:11:19] Speaker 04: You're over your time. [00:11:19] Speaker 02: The substantial evidence here suggests that this individual worked as a supervisor. [00:11:29] Speaker 02: I want to just one second touch on the motion to reopen, because that is somewhat compelling as well. [00:11:36] Speaker 02: The standard with that is that the board certainly has discretion, but responded. [00:11:42] Speaker 02: I'm sorry. [00:11:47] Speaker 02: The evidence must change the result of the hearing. [00:11:52] Speaker 02: That's Manhattan Center Studios, an NLRB case. [00:11:56] Speaker 02: The evidence must change the result of the hearing. [00:11:58] Speaker 02: I don't see how a complaint filed in the Superior Court in New Jersey, where he claims that he was a supervisor at the time of the election, [00:12:11] Speaker 02: does not substantially change that. [00:12:13] Speaker 02: And there was a little bit of a... Where does the complaint say that? [00:12:16] Speaker 02: I'm sorry? [00:12:17] Speaker 01: Where does the complaint say he was a supervisor at the time of the election? [00:12:21] Speaker 02: It was on one of the first page. [00:12:26] Speaker 02: It said that he did not get demoted until January of 2013, if I'm not mistaken. [00:12:32] Speaker 01: What's the position of superintendent for three of the buildings? [00:12:35] Speaker 01: It doesn't say that he wasn't a superintendent for more buildings before that, and it doesn't say he was a supervisor before that. [00:12:41] Speaker 02: If I'm not mistaken, it says he was demoted in January of 2013. [00:12:45] Speaker 01: To superintendent for three buildings. [00:12:48] Speaker 02: To superintendent, meaning that he was a supervisor prior to that time. [00:12:53] Speaker 02: Then you have a letter being submitted by his attorney in that Superior Court case saying, oh, my client is a poor historian, and maybe I misinterpreted him. [00:13:05] Speaker 02: And then after that, Mr. Horowitz, you're out of time. [00:13:08] Speaker 04: I'm out of time. [00:13:09] Speaker 04: I'm sorry. [00:13:10] Speaker 04: Thank you. [00:13:10] Speaker 04: We'll hear from the board. [00:13:11] Speaker 04: I'll give you a minute on rebuttal, OK? [00:13:24] Speaker 00: Good morning and may it please the court. [00:13:26] Speaker 00: I'm David Casterly for the NLRB. [00:13:29] Speaker 00: This case is a fairly simple case about one employee's supervisory status. [00:13:33] Speaker 00: And the question is whether substantial evidence, as the court identified, supports the board's decision. [00:13:40] Speaker 00: And here, given the burden of proof, substantial evidence clearly supports the board's decision that [00:13:48] Speaker 00: The company did not prove that Mr. Pereira was a supervisor as of the date of the election. [00:13:55] Speaker 00: of what the company has to prove is three things for each supervisory element. [00:14:00] Speaker 00: The authority to wield that element with using independent judgment in the interest of the employer. [00:14:09] Speaker 00: Simply put, there's none of these that even really come close that they've presented evidence of. [00:14:14] Speaker 00: There's some small evidence that there was one employee's testimony that the board did credit that [00:14:21] Speaker 00: He gave routine kind of instructions, but there's no even evidence that these instructions didn't come directly from Mr. Weiss. [00:14:29] Speaker 01: Can you clarify one thing for me? [00:14:31] Speaker 01: Just I want to make sure I'm understanding the state of board law correctly in a situation where you have the issue really isn't [00:14:39] Speaker 01: supervisor and not writing on a clean slate is whether he continued as a supervisor after Mr. Weiss was hired. [00:14:46] Speaker 01: He was a supervisor for 12 years and the question is whether continued through that four month. [00:14:51] Speaker 01: period and looking at the hearing officer decision which the board adopted, assuming that the board doesn't say we ignore everything that happened for 12 years and we look with blinders at this four month period and insist on indicia then, but that the nature of the analysis is more holistic, it doesn't exclude that, but the problem was here that there just seemed to be [00:15:17] Speaker 01: a rather dramatic change once Mr. Weiss was hired. [00:15:21] Speaker 01: Am I understanding it right that the board doesn't sort of close off everything that came before for 12 years when it analyzes the factors? [00:15:28] Speaker 01: It looks at the whole picture, but there was just a big change here. [00:15:31] Speaker 00: Well, Your Honor, that was all admitted as evidence, so clearly the board could look at anything that was happening before 2012, and it did. [00:15:39] Speaker 00: But in terms of what carried weight with the board's decision, what carried weight was that [00:15:44] Speaker 00: He was not proven to have wielded any of these duties after May 2012. [00:15:49] Speaker 01: Right. [00:15:49] Speaker 01: You had a sort of triggering event. [00:15:51] Speaker 01: You said the board could look at whatever it wants. [00:15:53] Speaker 01: I guess I'm trying to make clear that there's nothing in this decision that says the board doesn't have to, that it could really, when someone says, yeah, I was a supervisor for 12 years, but let's look at this four-month period before the election. [00:16:07] Speaker 01: And that's all we're going to look at. [00:16:08] Speaker 01: We're not going to analyze the evidence, looking at the whole history of supervisory status and whether it continued. [00:16:15] Speaker 01: I assume the board's, that's not the board's position. [00:16:18] Speaker 00: I mean, the board's position here is the board did look at all that evidence and did find that there was a change. [00:16:24] Speaker 00: So if you're presenting a situation where there was literally no evidence either way, as somebody had been a supervisor for 12 years and then there's no evidence introduced either way after a certain point, the board's not really deciding that case here. [00:16:38] Speaker 00: So I can't actually answer as far as what the board's, [00:16:42] Speaker 00: position is, other than to say that here, the board did evaluate evidence. [00:16:46] Speaker 00: It mentioned that he was a supervisor for 12 years. [00:16:49] Speaker 00: It did mention that he had, at some point, hiring authority. [00:16:52] Speaker 00: Although the board didn't specifically find that he wielded any other particular, it was stipulated that he was a supervisor. [00:16:59] Speaker 00: So the board didn't really need to get into, before that, which indicia of supervisory status he wielded. [00:17:07] Speaker 00: And moving on to, as you mentioned, the evidence of a change, there's ample evidence that there was a change here. [00:17:14] Speaker 00: First of all, Mr. Perea was specifically told by Mr. Weiss that, or specifically told by the owner that Mr. Weiss would be in charge, that everything goes through Mr. Weiss. [00:17:26] Speaker 00: Two employees testified that their supervisor was Perea before this change happened. [00:17:30] Speaker 00: After that, they testified that everything went through Mr. Weiss. [00:17:35] Speaker 00: Even an employee that initially – one employee who had initially gotten his raises by talking first to Mr. Perea when he got a raise after Mr. Weiss was hired went straight through Weiss. [00:17:49] Speaker 01: So – What about Judge Williams' reference, and that is what happens if the timeframe is even shorter, if it were a month before the election? [00:18:03] Speaker 01: which is why I was asking sort of the bigger picture question. [00:18:07] Speaker 01: And that's not so much a burden of proof one, it's just simply how holistic the analysis is. [00:18:13] Speaker 01: Because one can imagine concerns about sudden demotions right before an election. [00:18:20] Speaker 00: Yes, Your Honor. [00:18:23] Speaker 00: So if the demotion were a month before the election, we'll say that's right after the petition's filed. [00:18:29] Speaker 00: That would certainly raise a lot of concerns under other areas of board law. [00:18:34] Speaker 00: That said, in terms of the law, the board's eligibility standard for this type of election is as of the date of the election, whether he is a supervisor or not. [00:18:45] Speaker 00: So if there is a demotion within a month, [00:18:48] Speaker 00: that would still, the employer would still need to prove that he was a supervisor after that month. [00:18:55] Speaker 00: What I understand your question getting at is, isn't that a little bit easier of a case for the employer to prove? [00:19:01] Speaker 00: And it seems so, but there's nothing in the board's decision to really, the board doesn't really discuss that here either way. [00:19:08] Speaker 01: The point here is you had a big enough window of time to notice [00:19:12] Speaker 01: There should have been more evidence during four months if he was still a supervisor. [00:19:16] Speaker 00: That's right, Your Honor, here. [00:19:17] Speaker 00: Or it's more than four months. [00:19:18] Speaker 00: It's from May at the very latest all the way through the election in November. [00:19:25] Speaker 01: Well, didn't he go out on leave in September? [00:19:27] Speaker 00: He did go out on leave in September. [00:19:28] Speaker 01: So we don't really have any evidence after September. [00:19:31] Speaker 01: That's right. [00:19:32] Speaker 00: to five months here, at least, given that the evidence does show that his position was changing as soon as Weiss was hired. [00:19:42] Speaker 00: For instance, the last paychecks he signed for employees were in early April, so different parts of his authority were being diminished before that. [00:19:54] Speaker 00: Moving on to the evidence of non-supervisory status after that, again, Mr. Cuevas's raise went through Mr. Weiss instead, and employees consistently testified that while before his demotion, Mr. Perea's demotion, they had gone to Mr. Perea when seeking leave and when seeking overtime, [00:20:19] Speaker 00: after Mr. Weiss was hired, they went to Mr. Weiss for those things, and they did not, Perea no longer had the authority to approve such things. [00:20:28] Speaker 00: And given that there's no strong evidence either way of hiring, given that nobody was hired, there's nobody has carried, the employer has not carried the burden of showing that, Mr. Perea [00:20:42] Speaker 00: was still able to hire employees and it makes sense that he was not able to as the board found as he was no longer able to pay employees or to recommend them for raises or approve their overtime. [00:20:55] Speaker 00: It was certainly reasonable and substantial evidence supports the board's decision that he did not have the authority to [00:21:03] Speaker 00: higher either after that point. [00:21:05] Speaker 01: With respect to the complaint I know the board said it wouldn't have changed and everything and I'm trying to do you read it as being necessarily inconsistent with the hearing test the evidence before the board? [00:21:19] Speaker 00: No, Your Honor, in that if he's demoted, there's nothing in the complaint that specifically says he was a statutory supervisor under Section 211 of the National Labor Relations Act and then was demoted, as opposed to him having been another position that he was demoted from. [00:21:39] Speaker 01: I don't know enough about the real estate business, so maybe you'll both tell me this. [00:21:43] Speaker 01: Can you be a general property manager without being a supervisor? [00:21:47] Speaker 01: Because he did say I was that and then I was demoted. [00:21:50] Speaker 00: I don't think there's any evidence in the record as to the title of General Property Manager, Your Honor. [00:21:56] Speaker 00: But as a general matter when it comes to supervisory status, and indeed this is mentioned in Kentucky River, there's a lot of employees who may be called supervisors. [00:22:07] Speaker 00: They may have different duties from other employees. [00:22:10] Speaker 00: who aren't actually statutory supervisors. [00:22:14] Speaker 00: There was some evidence in the record that Mr. Perea purchased supplies at Weiss's commands when other employees were not asked to do that. [00:22:25] Speaker 00: That has nothing to do with whether he's a supervisor under Section 211 of the Act, but he may have had a slightly different position. [00:22:31] Speaker 00: He certainly was paid more. [00:22:33] Speaker 00: So the complaint could have been referring to that demotion. [00:22:36] Speaker 00: But as you identified, that wasn't the grounds on which the board rejected it. [00:22:40] Speaker 00: The board rejected it on grounds that it would not have made a difference, given that what they were asking for was reopening the record, but this complaint wasn't signed by Mr. Perea. [00:22:50] Speaker 00: It was signed by his counsel, who then tried to retract it in a letter to the board. [00:22:55] Speaker 00: So it's unclear what they would even do if they reopened the record. [00:22:58] Speaker 00: Having the counsel testify would be not relevant information. [00:23:02] Speaker 00: He wasn't a witness who had any [00:23:04] Speaker 00: knowledge of the events and various testimony was already there in the record and credited by a hearing officer. [00:23:12] Speaker 00: Seeing as my time is up, if the court has no further questions, I request that you enforce the board's order in full. [00:23:19] Speaker 04: Thank you. [00:23:19] Speaker 04: Mr. Horowitz, you were at town, but you can have one minute. [00:23:28] Speaker 02: What Judge Millett just raised is exactly what the board did in this case with regards to are they looking at a four-month period. [00:23:36] Speaker 02: No, they're looking at a three-month period or less because he was demoted sometime in May, supposedly, May to June, June to July, July to August. [00:23:46] Speaker 02: Petitions filed in August. [00:23:47] Speaker 02: He goes out on disability a week after that. [00:23:51] Speaker 02: It was a four month, and there was nothing in that record, I'm sorry, nothing in that decision to show that they looked at anything other than those four months. [00:24:02] Speaker 02: If anything, he abandoned his job responsibilities. [00:24:06] Speaker 02: Now, no one being hired is not the equivalent of losing your power to hire. [00:24:13] Speaker 02: Last thing I want to get into, Korea's testimony on appendix page 458, I ask you to re-look at that. [00:24:20] Speaker 02: Here it's how it goes when he got assigned these two other or three other buildings. [00:24:27] Speaker 02: What were you told when everything changed? [00:24:29] Speaker 02: Well, that I was going to be the super, definitely of three properties. [00:24:33] Speaker 02: And were you told that you were still the supervisor at no time? [00:24:38] Speaker 02: Well, when you woke up this morning, were you told that you were still a judge? [00:24:43] Speaker 02: Of course not. [00:24:43] Speaker 02: Because even if you get assigned another building, it doesn't mean that you'll lose your supervisory staff. [00:24:51] Speaker 01: When you're a super, is that a superintendent or a supervisor? [00:24:56] Speaker 01: How do we know he didn't mean he was the superintendent, which I think he was. [00:24:58] Speaker 02: Were you told that you were still the supervisor at no time? [00:25:04] Speaker 01: Right, but I was going to be the super, definitely three properties, so he was still going to be the superintendent. [00:25:08] Speaker 02: Yes, but listen, this is a hearing where the word super was thrown around and it was [00:25:15] Speaker 02: at times alluded to as superintendent and supervisor. [00:25:20] Speaker 02: If you read the line of questioning, it was superintendent here is what the intent was, although it wasn't clarified. [00:25:26] Speaker 02: But what is clarified is, and you were told that you were, and were you told you were still the supervisor? [00:25:33] Speaker 02: Answer, at no time. [00:25:35] Speaker 02: Why does an employer have to say to someone, I'm giving you two more buildings, oh, and by the way, you're still the supervisor? [00:25:41] Speaker 02: It's implied here. [00:25:43] Speaker 04: Okay. [00:25:44] Speaker 04: Thank you, Mr. Lewis. [00:25:45] Speaker 04: Thank you. [00:25:45] Speaker 04: Case is submitted.