[00:00:02] Speaker 03:
May it please the court.

[00:00:16] Speaker 04:
My name is Arthur Telligan.

[00:00:18] Speaker 04:
I represent the petitioner, Selco Partnership, which you would likely know as Verizon Wireless.

[00:00:27] Speaker 04:
Most of the facts in this case are undisputed.

[00:00:30] Speaker 04:
The Communications Workers of America was certified as the bargaining agent of Horizon Wireless's employees in its Brooklyn, New York store in the spring of 2014.

[00:00:41] Speaker 04:
During the succeeding year, the record was zero evidence of any anti-animus displayed by Verizon Wireless or the union, any unfair labor practices.

[00:00:52] Speaker 04:
As far as the record shows, the relationship between the CWA and Verizon Wireless was cordial, it was productive.

[00:00:59] Speaker 04:
Similarly, with respect to the alleged wrongfully discharged employee, Bianca Cunningham, the record is the opposite of any annals being shown to Ms.

[00:01:10] Speaker 04:
Cunningham.

[00:01:12] Speaker 04:
The undisputed testimony was when she was a member of the bargaining committee for the CWA.

[00:01:17] Speaker 04:
It was a productive relationship.

[00:01:19] Speaker 04:
The chief bargainer of the company said she was a professional.

[00:01:23] Speaker 06:
Is it not fair to say that the ALJ thought there were three

[00:01:29] Speaker 06:
indications of animus.

[00:01:31] Speaker 06:
One, the grave statement that there was a hit list.

[00:01:36] Speaker 06:
Two, the time that the company took to make the decision to discharge Cunningham.

[00:01:47] Speaker 06:
And what was the third point?

[00:01:48] Speaker 04:
Well, it was actually the fourth, Your Honor.

[00:01:49] Speaker 04:
The fourth point was disparate treatment, which I found that issue.

[00:01:53] Speaker 04:
And there was the handbook

[00:01:57] Speaker 06:
Then the disparate treatment is the fourth one.

[00:02:01] Speaker 06:
That's correct, Your Honor.

[00:02:03] Speaker 04:
Would you like me to address those?

[00:02:04] Speaker 06:
Yeah, I think it's important.

[00:02:05] Speaker 04:
The handbook, nobody except the ALJ relied upon.

[00:02:09] Speaker 04:
He wanted an individual reason.

[00:02:10] Speaker 04:
Because it came up in a different case.

[00:02:12] Speaker 04:
It came up in a different case that displays nothing except the ALJ's desire to find animus.

[00:02:19] Speaker 04:
As to the Al Graves hit list,

[00:02:25] Speaker 04:
That was a piece of a racist rant against his manager, his African-American manager.

[00:02:33] Speaker 04:
Broom.

[00:02:34] Speaker 04:
Broom.

[00:02:35] Speaker 04:
Exactly.

[00:02:36] Speaker 04:
To credit for anything was just inappropriate.

[00:02:40] Speaker 06:
Your point in the brief is there's no finding that there was, in fact, a Hitler's.

[00:02:44] Speaker 04:
Oh, there was no hit list.

[00:02:45] Speaker 04:
Even Mr. Graves, when he testified, said it was a figure of speech.

[00:02:55] Speaker 04:
He denied it was ever a hit list.

[00:02:57] Speaker 04:
And it was a clear figure of speech in the list of things.

[00:02:59] Speaker 06:
Well, she could conclude, or the ALJ could conclude, that Graves was not telling the truth.

[00:03:05] Speaker 06:
But there is no finding.

[00:03:07] Speaker 06:
specific finding that there ever was a hit list?

[00:03:09] Speaker 04:
No, there was not, Your Honor.

[00:03:10] Speaker 04:
There was no, other than the statement, there was nothing about hit lists in the record.

[00:03:15] Speaker 04:
As to the, I'm sorry, lost it.

[00:03:21] Speaker 03:
The time it took?

[00:03:23] Speaker 04:
The time it took, thank you, Your Honor.

[00:03:26] Speaker 04:
The time it took was the feature function of the NLRB's own rules requiring a process to be put in place when you're terminating an employee.

[00:03:36] Speaker 04:
The Ritchie case.

[00:03:38] Speaker 04:
Exactly.

[00:03:39] Speaker 04:
In addition, the fact that the company, as it was testified to without contradiction, not cited by the ALJ, the company was another employee who subsequently was subject to termination, and the parties decided to have the two people heard together the same richy discussion.

[00:03:57] Speaker 04:
It just wasn't proof of anything except the fact that Verizon Wireless followed the rules.

[00:04:05] Speaker 04:
That left only a disparate treatment.

[00:04:07] Speaker 05:
Hold on a second.

[00:04:07] Speaker 05:
When you said another employee totally unrelated to this event?

[00:04:11] Speaker 05:
Yes.

[00:04:14] Speaker 04:
As to the disparate treatment.

[00:04:16] Speaker 04:
The board went through hundreds of files of employees.

[00:04:21] Speaker 04:
They found in some cases that you could characterize some of the employees as being dishonest during an investigation.

[00:04:30] Speaker 04:
You could characterize that way.

[00:04:32] Speaker 04:
And there were certainly cases where the company terminated people who lied during the discussion, during the investigation.

[00:04:39] Speaker 04:
There's simply no patent as you find in other cases.

[00:04:42] Speaker 06:
There was one case, as I recall, a manager

[00:04:46] Speaker 06:
was credited an assistant manager even though she had misstated whether her emails existed and the manager believed her that she had forgotten.

[00:05:00] Speaker 06:
That's correct, Your Honor.

[00:05:05] Speaker 06:
So the ALJ concluded, I guess, that he wouldn't have credited the assistant manager, which is sort of strange.

[00:05:15] Speaker 04:
It's exactly correct, Your Honor.

[00:05:17] Speaker 04:
To find disparate treatment here, you have to accept the ALJ's process of recharacterizing some cases

[00:05:27] Speaker 04:
ignoring the evidence where consistent treatment was given and inferring from that, and frankly only from that, that there was anti-union animus.

[00:05:38] Speaker 04:
This stands in the face of the undisputed testimony never cited by the ALJ that everybody from the company who dealt with

[00:05:47] Speaker 04:
who dealt with Ms.

[00:05:48] Speaker 04:
Cunningham, respected her, believed her.

[00:05:50] Speaker 04:
In fact, the basic facts of the case are that it was because the company believed her.

[00:05:59] Speaker 04:
trusted her that they terminated the other employee, Ms.

[00:06:03] Speaker 04:
Esher Rituri.

[00:06:04] Speaker 04:
You were going to terminate.

[00:06:05] Speaker 04:
You didn't terminate.

[00:06:07] Speaker 04:
Exactly right.

[00:06:07] Speaker 04:
No, I'm not going to terminate.

[00:06:08] Speaker 04:
I did not.

[00:06:09] Speaker 04:
It was only when Ms.

[00:06:11] Speaker 04:
Cunningham finally gave the evidence that proved that she was not telling the truth and Ms.

[00:06:16] Speaker 04:
Esher Rituri was that it got reversed.

[00:06:18] Speaker 06:
What did you think of the chairman's statement in the footnote that he didn't think Cunningham had lied?

[00:06:26] Speaker 04:
I don't know what to make of that comment.

[00:06:29] Speaker 04:
Chairman certainly knew that it wasn't even a relevant point.

[00:06:32] Speaker 06:
Well, you did make that point in your brief.

[00:06:33] Speaker 06:
You argued that the question is not before the board as to whether somebody did in fact lie, but whether or not the company reasonably believed.

[00:06:44] Speaker 06:
that the person lied.

[00:06:45] Speaker 04:
I'm sorry, I was thinking of the chairman's thought processes and not what he said.

[00:06:50] Speaker 04:
What he said was not relevant to the case.

[00:06:55] Speaker 04:
It's also, by the way, totally unclear how he got to that.

[00:06:59] Speaker 03:
So we don't have a large pool of individuals who this, is it Ticeta or Ticheta?

[00:07:06] Speaker 03:
is the person who would have been making the call on whether Cunningham gets fired.

[00:07:16] Speaker 03:
It seems like the primary comparator that the ALJ relies on is Arlene Francis, who was someone

[00:07:25] Speaker 03:
also under Takeda, who knew that her assistant manager purposely changed time sheets of nine employees, deleting 104 hours of overtime.

[00:07:38] Speaker 03:
And when the assistant manager sent Frances an email explaining what she did, Frances said, we discussed the matter.

[00:07:46] Speaker 03:
She falsely then told the district manager she had no knowledge of that fact.

[00:07:52] Speaker 03:
And then when she forwarded the email,

[00:07:54] Speaker 03:
to her district manager, she deleted the portion of the email chain that would have shown that she knew.

[00:08:01] Speaker 03:
So that's, I would say, I could defer to a board finding that that is evidence of dishonesty in an investigation.

[00:08:15] Speaker 03:
And yet that individual was not fired.

[00:08:19] Speaker 03:
And so I think it's important to the ALJ to say, well, there's a differential treatment here.

[00:08:24] Speaker 06:
You know, Arlene Francis was a manager, right?

[00:08:27] Speaker 04:
She was, Your Honor.

[00:08:30] Speaker 04:
Your Honor, there may be a differential treatment in the sense of if you line up the two cases side by side and put them before the court before me right now and say, can you look at this one and can you look at that one, how do you explain them?

[00:08:47] Speaker 04:
I do understand that one could make the case that Ms.

[00:08:51] Speaker 04:
Francis and Ms.

[00:08:51] Speaker 04:
Cunningham are similar.

[00:08:53] Speaker 04:
They both may have misled someone intentionally during an investigation.

[00:08:59] Speaker 04:
That's a long way from saying that one comparison in the sea of all the other evidence that goes exactly in the opposite direction in terms of what the motivation the company had for firing Ms.

[00:09:12] Speaker 04:
Cunningham is, is enough to say, well, that's substantial evidence on the record of a whole supporting a finding of animus.

[00:09:18] Speaker 03:
But that's not the way the ALJ saw the evidence.

[00:09:20] Speaker 03:
The ALJ didn't say, well, there's a sea of all the other evidence cut any other way.

[00:09:24] Speaker 03:
I mean, Graves, for example, as a manager

[00:09:26] Speaker 03:
And he denied that there was an actual hit list per se, but what he was saying, according to the ALJ and the findings and his testimony as well, is that there was an effort or attention to trying to catch Ms.

[00:09:43] Speaker 03:
Cunningham in potentially a fireable offense.

[00:09:49] Speaker 04:
Your honor, I'm not sure he said exactly that, but he said he suggested that as in the context of a racist rant against his boss, Mr. Groome.

[00:09:58] Speaker 04:
It was a racist rant against all the HR people, having the African American.

[00:10:01] Speaker 03:
His bias, gender bias, or

[00:10:05] Speaker 03:
or racial bias against that matter is not an issue in the case.

[00:10:09] Speaker 03:
I mean, nobody condones that.

[00:10:11] Speaker 03:
But that doesn't cut one way or the other, does it?

[00:10:14] Speaker 04:
It certainly does, Your Honor.

[00:10:15] Speaker 03:
How so?

[00:10:16] Speaker 04:
Because his motivation for saying anything to the woman in question is cutting him.

[00:10:22] Speaker 04:
That disparages his boss and the HR people because of their race.

[00:10:32] Speaker 04:
and says to Ms.

[00:10:33] Speaker 04:
Cunningham, oh, and they're out to get you.

[00:10:36] Speaker 04:
I'm sorry, Ron.

[00:10:37] Speaker 04:
You cannot credit that statement with respect.

[00:10:40] Speaker 04:
It has to be seen in that context.

[00:10:42] Speaker 03:
That's not my question.

[00:10:43] Speaker 03:
My question is, I mean, in our position of review in court, it's whether the ALJ could appropriately question.

[00:10:50] Speaker 03:
And I think where one employee says to the other employee, well, he's a go along to get along guy, and says that in racist terms, but also as someone who is a manager and knows

[00:11:02] Speaker 03:
what the managerial people are thinking.

[00:11:04] Speaker 03:
I'm not sure that those two things bear on one another in terms of whether they're true or not.

[00:11:13] Speaker 04:
Respectfully, I disagree.

[00:11:15] Speaker 04:
In that context, in that statement, when you read it in the entirety, you cannot credit anything from it.

[00:11:20] Speaker 04:
And when he's on the stand, he denied that there was a Hitler.

[00:11:23] Speaker 03:
The other comparators, there are individuals who did things arguably worse than misstatements within the context of investigations, but that also were not fired.

[00:11:40] Speaker 03:
There were individuals who were in gift card abuse situations and lied during investigation, not fired.

[00:11:48] Speaker 03:
The ALJ also relies on those.

[00:11:52] Speaker 04:
Your Honor, the people who were in the gift card situation who were not fired were subordinates, and managers were fired who engineered the gift card.

[00:12:00] Speaker 04:
The company had the right to make a judgment that those people should not be fired, even if that wasn't waiving a clearly expressed rule.

[00:12:08] Speaker 03:
Your Honor, when you- I actually had a question about the clearly expressed rule.

[00:12:12] Speaker 03:
The rule that I subsided in the briefs was a rule that employees should be forthright at all times, or

[00:12:18] Speaker 03:
Can you point us to the policy that most clearly shows that Verizon has a zero tolerance policy toward any misstatement within the context of an investigation that would lead to a firing?

[00:12:33] Speaker 04:
I do not believe the code of conduct, which provides the relevant rules, says zero tolerance.

[00:12:38] Speaker 03:
Pardon?

[00:12:39] Speaker 04:
It says that violating the code of conduct leads to discipline up to and including discharge.

[00:12:44] Speaker 04:
And it says you must comply with it.

[00:12:46] Speaker 03:
So show me, point me to where in the record the policy is that if you don't tell the truth, you'll be fired?

[00:12:57] Speaker 04:
Your Honor, at JA 1538,

[00:13:04] Speaker 04:
There is a significant passage talking about cooperation and investigation.

[00:13:26] Speaker 06:
Are you reading it, counsel?

[00:13:31] Speaker 06:
Would you read it?

[00:13:32] Speaker 06:
I don't have it with me.

[00:13:34] Speaker 04:
Oh, it says, Your Honor, that you must cooperate completely in any investigation relating to Verizon.

[00:13:41] Speaker 04:
You must be honest and forthcoming at all times during an investigation.

[00:13:45] Speaker 04:
You must provide any investigator with full, accurate, timely and truthful information.

[00:13:50] Speaker 04:
Misrepresenting facts or failing to disclose facts during an investigation is strictly prohibited.

[00:13:55] Speaker 04:
You may never interfere with or obstruct an investigation conducted by the company by any third party on the company's behalf or government agency.

[00:14:03] Speaker 04:
Thank you.

[00:14:06] Speaker 03:
And what's the, what's the lying finding here on, on Ms.

[00:14:14] Speaker 03:
Cunningham?

[00:14:15] Speaker 03:
I mean, she said, oh, I didn't, I didn't tell her to go home.

[00:14:18] Speaker 03:
I didn't,

[00:14:19] Speaker 03:
tell her that HR told her to go home, and then it turns out she had texted her that she was talking to HR.

[00:14:28] Speaker 03:
But nobody actually disavowed the basics of the conversation between the two women.

[00:14:35] Speaker 03:
Cunningham said it was

[00:14:36] Speaker 03:
working with her, I was helping her, I was trying to troubleshoot, and Victoria Shaturi said, she's helping me out, I was trying to figure out if I could go home.

[00:14:47] Speaker 03:
I mean, there wasn't like a denial of the basics of what was going on, right?

[00:14:51] Speaker 03:
It was sequence and timing, but it seems like you see that as a more... You're on context first, please.

[00:15:00] Speaker 03:
Yeah, exactly, that's what I'm looking for.

[00:15:03] Speaker 04:
Ms.

[00:15:03] Speaker 04:
Ishera Tory was working.

[00:15:05] Speaker 04:
She called up Mr. Broom, her boss's boss, and says, I want to go home.

[00:15:11] Speaker 04:
And she relates it to a problem with her boss, Mr. Graves.

[00:15:18] Speaker 04:
It was the first conversation with a very brief discussion.

[00:15:20] Speaker 04:
It was the second conversation in the last five or six minutes.

[00:15:23] Speaker 04:
And it's broken off by Ms.

[00:15:25] Speaker 04:
Ishera Tory.

[00:15:26] Speaker 04:
Mr. Broom says, I'll call you.

[00:15:29] Speaker 04:
He does.

[00:15:29] Speaker 04:
No answer.

[00:15:33] Speaker 04:
She's gone home without permission.

[00:15:36] Speaker 04:
He tries to reach her again, leaves her a message, no response, an entire 24 hours or more goes by before he finally calls her again, and this time she picks up and has a discussion with him.

[00:15:49] Speaker 04:
Now, at that point in time, Ms.

[00:15:51] Speaker 04:
Escherituri inexplicably has left, not just left without permission, but left with her boss's boss, waiting for her phone call, waiting for her response, and disobeying his wait for my call.

[00:16:07] Speaker 04:
When Mr. Brooms talks to Ms.

[00:16:10] Speaker 04:
Esharachuri finally, he understands, and I think it's a fair understanding, that Ms.

[00:16:15] Speaker 04:
Esharachuri said, well, I talked to Ms.

[00:16:18] Speaker 04:
Cunningham.

[00:16:21] Speaker 04:
And Ms.

[00:16:21] Speaker 04:
Cunningham said she was talking to human resources, and she said I could go home.

[00:16:31] Speaker 04:
From the company's perspective, there was a perfectly credible person whom they knew, Ms.

[00:16:37] Speaker 04:
Cunningham,

[00:16:40] Speaker 04:
who was somehow, somehow she was described as having given permission to this person to leave, which seemed odd.

[00:16:48] Speaker 04:
And it certainly seemed even odd that she'd gotten permission from human resources because Mr. Brooms was talking to human resources and they didn't know anything about this.

[00:17:00] Speaker 04:
Among other things that Ms.

[00:17:02] Speaker 04:
Esher Ritori said was the conversation was logically by text message.

[00:17:06] Speaker 03:
Was what?

[00:17:07] Speaker 04:
Logically by text message.

[00:17:10] Speaker 04:
When the company interviewed Ms.

[00:17:11] Speaker 04:
Cunningham, she said, no, I didn't say anything about human resources to give you permission to go home.

[00:17:17] Speaker 04:
No, I didn't say she could leave.

[00:17:20] Speaker 04:
And it was largely by telephone.

[00:17:23] Speaker 04:
The company asked Ms.

[00:17:25] Speaker 04:
Anshara Torrey for her text messages, and she declined to produce them.

[00:17:31] Speaker 04:
At that point, the company concluded, based on what Ms.

[00:17:34] Speaker 04:
Cunningham had said, that Ms.

[00:17:36] Speaker 04:
Anshara Torrey was lying during the investigation.

[00:17:39] Speaker 04:
and they were prepared to fire her.

[00:17:42] Speaker 04:
Now it turned out that in fact, at the Alan Ritchie meeting several weeks later, Ms.

[00:17:50] Speaker 04:
Cunningham says for the first time, she noticed two weeks prior to that, not having told anybody in the company about it, she noticed a set of text messages.

[00:18:00] Speaker 04:
And in fact, it turned out that yes, she had said she was in touch with human resources,

[00:18:08] Speaker 04:
Yes, there is a thing saying, you can go home.

[00:18:12] Speaker 04:
And obviously, it's a substantive conversation in the text messages.

[00:18:18] Speaker 04:
Ms.

[00:18:18] Speaker 04:
Cunningham's response to that was, well, it looks that way, but it's all in the context of telephone calls that occur at the same time, which led the company to say, sure, we should telephone that bill.

[00:18:30] Speaker 04:
Let's be able to see when the phone calls are.

[00:18:32] Speaker 04:
And she refused.

[00:18:37] Speaker 04:
With respect to that,

[00:18:38] Speaker 04:
Verizon was perfectly within its rights to say, you lied.

[00:18:42] Speaker 04:
You're continuing to lie.

[00:18:44] Speaker 04:
You can't really sell us with the contextual phone calls if they don't appear on your phone bill.

[00:18:50] Speaker 04:
There's one two-minute phone call before all the texts occur.

[00:18:53] Speaker 04:
And the thing that you told us, well, I just said to her that if it were me, I'd go home.

[00:18:57] Speaker 04:
I never said you could go home.

[00:18:59] Speaker 04:
That allegedly occurred in the initial phone call after which she texted the union leader saying, I have this historic person.

[00:19:09] Speaker 04:
I don't know what to do.

[00:19:11] Speaker 04:
And the union leader says, well, you should tell her if she feels at risk to go home.

[00:19:15] Speaker 04:
And she then said, well, that's what I told her.

[00:19:19] Speaker 04:
That conversation could not have occurred because the order is

[00:19:22] Speaker 04:
There were no phone calls after that text.

[00:19:26] Speaker 04:
Verizon had a perfectly legitimate reason to believe that Ms.

[00:19:30] Speaker 04:
Cunningham knowingly lied.

[00:19:33] Speaker 04:
They had a perfectly legitimate reason to know she was continuing to lie, even as the investigation continued.

[00:19:39] Speaker 04:
They certainly knew that she was withholding information that might allow them to decide whether there was any credence to be given to her story.

[00:19:47] Speaker 04:
And they concluded for that reason that she should be terminated, as they had terminated several other people who had lied during the investigation.

[00:19:55] Speaker 04:
Now, your honest point that, well, there may be some cases you can find where the company didn't fire somebody, and maybe they're even, in the eyes of the ALJ, worse.

[00:20:08] Speaker 04:
Well, I'm sorry.

[00:20:09] Speaker 04:
It's in the context of a judge who rejected undisputed evidence about who did what based on a privileged document.

[00:20:18] Speaker 04:
And nobody seems to defend the idea of his misreading, frankly, that document after the fact.

[00:20:24] Speaker 04:
But from the ALJ's perspective, that's the pivot for the case.

[00:20:28] Speaker 06:
What is the high aspect of exhibit 49 that he thought was so troubling as to indicate animus?

[00:20:38] Speaker 04:
If you pick out the word stage, Your Honor,

[00:20:41] Speaker 04:
Which he did.

[00:20:43] Speaker 04:
You could say, well.

[00:20:45] Speaker 04:
I didn't hear what you said.

[00:20:46] Speaker 04:
Oh, stage.

[00:20:47] Speaker 04:
The word stage.

[00:20:49] Speaker 04:
Stage S-T-A-G-E?

[00:20:51] Speaker 04:
Yes.

[00:20:52] Speaker 04:
The email was written between counsel and client concerning what to do to make sure that the matter was held.

[00:21:02] Speaker 04:
I mean, everybody knew it was a union official who was being fired, if that was to be the case.

[00:21:07] Speaker 04:
If Ms.

[00:21:07] Speaker 04:
Takeda ultimately decided to fire her, the process that should be gone through, because there was some likelihood that we'd be before the NLIB in this court describing what was happening.

[00:21:17] Speaker 04:
So make sure you do it right.

[00:21:20] Speaker 04:
In some point, the word stage appears to make sure you go through the process.

[00:21:24] Speaker 04:
That's what he said proves that everybody was lying.

[00:21:28] Speaker 06:
I don't remotely understand that.

[00:21:31] Speaker 04:
Well, Your Honor, that's a concern I share.

[00:21:35] Speaker 04:
As I said, the privileged exhibit doesn't bear the weight that the ALJ assigned to it.

[00:21:42] Speaker 04:
But he said it proved that it wasn't Ms.

[00:21:45] Speaker 04:
Teceta who made the decision.

[00:21:46] Speaker 04:
Other people made the decision.

[00:21:48] Speaker 04:
Everybody who said otherwise is not telling the truth.

[00:21:50] Speaker 04:
I mean, implicitly, he rejected the unconcerned testimony of several witnesses.

[00:21:57] Speaker 06:
But that's... I understand your argument on evidence.

[00:22:02] Speaker 06:
What about, what legal arguments do you make?

[00:22:05] Speaker 06:
One, as I recall, was the question of stray statements of, could we use for animus like Graves' statement?

[00:22:16] Speaker 06:
Do we have some case on that?

[00:22:19] Speaker 04:
You do, Your Honor, but I think the argument principally is that Graves has no credibility at all in the context of... No, no, no.

[00:22:25] Speaker 06:
I don't have a case on that holding that one stray statement why a supervisor can't make out animus.

[00:22:33] Speaker 06:
if the individual isn't connected.

[00:22:37] Speaker 06:
That's correct, Your Honor.

[00:22:38] Speaker 06:
Which case is that?

[00:22:39] Speaker 04:
I don't have the case in my hand.

[00:22:41] Speaker 06:
Am I supposed to remember all the cases?

[00:22:43] Speaker 04:
Well, maybe, Your Honor, you remember the all data case.

[00:22:48] Speaker 04:
You wrote that one.

[00:22:49] Speaker 04:
Which one?

[00:22:49] Speaker 04:
All data.

[00:22:50] Speaker 04:
And all data talks about whether this proof that the animus alleged connects up to the discharge.

[00:22:58] Speaker 04:
Right, exactly.

[00:22:59] Speaker 04:
And whether there is evidence, substantial evidence on the record as a whole.

[00:23:07] Speaker 04:
that justifies the decision.

[00:23:09] Speaker 04:
In this case, no, there's no connection.

[00:23:12] Speaker 04:
And no, there's not substantial evidence that rebuts all the other stuff that suggests this was exactly what the company said it was.

[00:23:21] Speaker 06:
If all that deliberation turns out to be evidence of animosity, corporate labor lawyers are going to go out of business.

[00:23:31] Speaker 04:
I would have a lot more business one or the other, Your Honor.

[00:23:34] Speaker 05:
And I just ask, Exhibit 49 is the one that the board said they weren't going to rely on, right?

[00:23:38] Speaker 04:
He said they were not going to rely on it.

[00:23:40] Speaker 04:
It is also the exhibit on which the ALJ based much of his credibility determination.

[00:23:46] Speaker 04:
And the board also said it accepts all the credibility determination.

[00:23:49] Speaker 03:
Tell me what you're relying on for that.

[00:23:51] Speaker 03:
Just zero in on where you want us to focus in assessing whether the ALJ placed much of his credibility reliance on exhibit 49, because it's not coming to my mind right now.

[00:24:05] Speaker 04:
During the course of his describing why he was taking it,

[00:24:09] Speaker 04:
I can pull it.

[00:24:12] Speaker 04:
It's toward the end of the... The opinion?

[00:24:16] Speaker 04:
No, toward the end of the transcript.

[00:24:18] Speaker 04:
The judge explicitly said the reason he's taking Exhibit 49 is it disproves the company's description through its witnesses of what happened.

[00:24:33] Speaker 05:
And that's in the... He says... I'm sorry, that's in the transcript of the hearing.

[00:24:38] Speaker 04:
Yes, sir.

[00:24:40] Speaker 04:
his application of the four factors about inadvertent disclosure.

[00:24:48] Speaker 04:
The overarching principle of justice suggests he should take it because it disproves what the company says.

[00:25:04] Speaker 03:
It seems like what Eshetori and Cunningham said, neither of them was completely accurate at the end of the day.

[00:25:11] Speaker 03:
Why not fire both?

[00:25:15] Speaker 04:
Because at the end of the day, nobody believed that Ms.

[00:25:18] Speaker 04:
Eshetori was lying.

[00:25:21] Speaker 03:
Some of what she said wasn't accurate, even when it was all cashed out.

[00:25:25] Speaker 04:
I'm not sure what you're asking for either.

[00:25:30] Speaker 04:
I mean, what the board has argued is that there was no connect, that she was never told that HR gave her permission to leave, because those statements are sort of not in exactly the same place.

[00:25:45] Speaker 04:
But I would suggest if you read those text messages together, a reasonable person would connect up Ms.

[00:25:52] Speaker 04:
Cunningham saying she was talking to HR at the speed of the matter along, and then, well, 20 minutes later, it's OK, you can leave.

[00:26:00] Speaker 03:
Well, I guess Esheturi says, according to the ALJ, Esheturi says to Brooms, Cunningham told her she had spoken with Verizon's HR and that they had approved her leaving early.

[00:26:10] Speaker 03:
But the text message that's clearly the relevant document there is Cunningham says, don't worry about, is it Ryan?

[00:26:19] Speaker 03:
But then she also says, I'm talking to HR.

[00:26:21] Speaker 03:
So she doesn't actually say that HR ever approved.

[00:26:24] Speaker 03:
her leaving, which, you know, if you're Esheturi, maybe you should be punctilious about that.

[00:26:30] Speaker 04:
With respect to anthropology, you read those backwards.

[00:26:33] Speaker 04:
She first says that I'm talking to HR, that will speed the process.

[00:26:37] Speaker 04:
And then about 20 minutes later, she says, don't worry about Ryan, you can leave.

[00:26:41] Speaker 04:
I'm sorry.

[00:26:43] Speaker 04:
If someone inferred from that that if someone drew the inference from that sequence that HR gave her permission to leave, I certainly wouldn't call that a lie.

[00:26:55] Speaker 03:
Although Cunningham never told us at her that HR gave her permission to leave.

[00:27:00] Speaker 04:
No, she said that she was talking to HR.

[00:27:04] Speaker 04:
And then she said.

[00:27:05] Speaker 03:
Don't worry about Ryan.

[00:27:06] Speaker 03:
Don't worry about.

[00:27:07] Speaker 03:
Indirectly she's telling her, you know, it may be reasonable, but what she narrates that Cunningham told her that HR had approved it is not worn out by the text.

[00:27:17] Speaker 03:
That's all I'm saying.

[00:27:19] Speaker 03:
You know, it's up to Verizon whether they fire someone for that, but it's not accurate, is all I'm saying, as the ALJ found, and neither was 100% what Cunningham said.

[00:27:30] Speaker 03:
I guess the thing that's stepping back a couple of steps, it seems like

[00:27:37] Speaker 03:
Neither Cunningham nor Esheturi denied the basic back and forth.

[00:27:42] Speaker 03:
Neither of them denied they were in touch.

[00:27:45] Speaker 03:
Cunningham never denied that she was trying to give advice to Esheturi.

[00:27:49] Speaker 03:
She doesn't have any

[00:27:51] Speaker 03:
thing on the line, she doesn't have any reason why she would lie.

[00:27:55] Speaker 03:
She just didn't think that the texts were as informative as they turned out to be.

[00:28:00] Speaker 03:
That's not how you understand Cunningham's line, no.

[00:28:03] Speaker 04:
It's not how I understand Cunningham.

[00:28:05] Speaker 04:
It's not how the company understood the plausibility of Ms.

[00:28:10] Speaker 04:
Cunningham saying she never went back and looked at the text, which is

[00:28:12] Speaker 03:
So what is Cunningham?

[00:28:15] Speaker 03:
Why is it in her interest, in your view, and I recognize that we're all bound by what the ALJ does, and we're all have to give it deference, but in your view, what's the sort of real weight behind the claim?

[00:28:32] Speaker 04:
What motivated her not to tell the truth?

[00:28:34] Speaker 04:
Yeah.

[00:28:35] Speaker 03:
We've wondered about that.

[00:28:36] Speaker 04:
Pardon?

[00:28:37] Speaker 04:
It's a fair question, what motivated her.

[00:28:38] Speaker 04:
And the conclusion is that she was just

[00:28:44] Speaker 04:
trying to show off to some degree that she could help Mrs. Eshaktarian the way she did.

[00:28:50] Speaker 04:
But whatever her motivation was, there's no question that the company legitimately concluded that she lied and continued the lie.

[00:29:02] Speaker 06:
That isn't the standard.

[00:29:05] Speaker 06:
The standard is whether the company reasonably believes she lied, not legitimately considered that.

[00:29:12] Speaker 06:
We do not review whether or not we think she lied.

[00:29:16] Speaker 06:
The question is whether the company reasonably thought she lied.

[00:29:21] Speaker 04:
Yes, Your Honor, it is, and it's in the context of having... There's another case.

[00:29:29] Speaker 04:
just for a moment, and that's the Schotten.

[00:29:32] Speaker 04:
No, it's actually a case that Judge Pollard wrote at Osborne-Hessing in which the court rejected the company's right-line defense.

[00:29:42] Speaker 04:
And Your Honor, I'd recommend looking at first the first paragraph of that case in which Judge Pollard described in detail all the animus that was floating around during the course of the case.

[00:29:54] Speaker 04:
And then she identified three things that gave rise to a finding that the right line, the animus had improved.

[00:30:02] Speaker 04:
One was knowledge of the protected activity, clearly case here, no dispute.

[00:30:08] Speaker 04:
The other was hostility, and there's zero evidence of hostility in this case, zero.

[00:30:13] Speaker 04:
And then timing.

[00:30:15] Speaker 04:
And the timing of this case suggests that the company was not the least bit upset with the fact that Ms.

[00:30:23] Speaker 04:
Cunningham engaged in anti-union, engaged in anti-union activity because it knew about that.

[00:30:29] Speaker 04:
It knew about that for several weeks and did nothing against Ms.

[00:30:33] Speaker 04:
Cunningham.

[00:30:33] Speaker 04:
It was prepared to fire Ms.

[00:30:34] Speaker 04:
Eshera Torrey.

[00:30:35] Speaker 05:
Did the ALJ ever say that the company

[00:30:43] Speaker 05:
was wrong in concluding she lied or was unreasonable.

[00:30:47] Speaker 05:
As I read the ALJ opinion, it's she lied, but that was a pretext for why she was fired.

[00:30:54] Speaker 05:
But not that she didn't lie at all.

[00:30:57] Speaker 04:
He doesn't exactly say that, but he assumes that.

[00:31:00] Speaker 06:
Forgive me for interrupting.

[00:31:03] Speaker 06:
It was the chairman in his footnote.

[00:31:05] Speaker 05:
That's fine, but that's just one vote.

[00:31:09] Speaker 05:
What I'm asking is that either the board or the ALJ

[00:31:14] Speaker 05:
say that she hadn't, in reaching the conclusion that there was a firing for protected activities, ever say or suggest that there was anything unreasonable about the finding that she lied?

[00:31:31] Speaker 04:
No, neither the ALJ nor the majority of the board made a finding in that respect.

[00:31:38] Speaker 05:
Or suggested that had anything to do with their ultimate conclusion in the case.

[00:31:44] Speaker 05:
The conclusion of the case was that this was pretext.

[00:31:49] Speaker 05:
You can have that even if the person does something bad.

[00:31:52] Speaker 05:
But I want to be clear about this.

[00:31:53] Speaker 05:
Judge Pillard asked you, wasn't the evidence close about whether she was really lying or not?

[00:32:00] Speaker 05:
That was not the grounds at all of either the LGA or the board's opinion.

[00:32:05] Speaker 04:
It was not, Your Honor, although it was not.

[00:32:11] Speaker 04:
What you don't know, because you asked about the board's findings, I don't know what the board's findings exactly were.

[00:32:17] Speaker 05:
All I'm asking you are, are there words on the page that I've missed, and the answer is no.

[00:32:21] Speaker 05:
No, there are not, there aren't.

[00:32:22] Speaker 05:
Are there further questions?

[00:32:25] Speaker 05:
We'll hear from them.

[00:32:51] Speaker 02:
Good afternoon, your honors, Barbara Sheehy for the National Labor Relations Board.

[00:32:55] Speaker 02:
I'm going to hit on, I think, three different areas where there seemed to be a lot of questions.

[00:33:00] Speaker 02:
And I will start first with, I guess, where the court left off.

[00:33:03] Speaker 02:
I'll meet the court where it was at the end of that conversation about whether it was pretext, whether she lied.

[00:33:07] Speaker 02:
And Judge Garland, you're absolutely right.

[00:33:09] Speaker 02:
The ultimate violation, the finding by the board, doesn't rely on an express finding that Bianca Cunningham lied.

[00:33:18] Speaker 02:
I think, just as a footnote to that, I think as a reasonable reading of the decision, the board does not expressly find that she did or did not lie.

[00:33:24] Speaker 02:
But if you read it, more often than not, words like allegedly lied are used and that she misremembered.

[00:33:30] Speaker 05:
Hold on.

[00:33:31] Speaker 05:
This is quite important.

[00:33:32] Speaker 05:
Sure.

[00:33:33] Speaker 05:
There might be an argument.

[00:33:35] Speaker 05:
in favor of finding an animus and a violation of the right line, that the employer said she was lying when she wasn't or unreasonably thought she was lying when she wasn't, that is not in any way the basis of the Board's opinion.

[00:33:56] Speaker 02:
No, you're absolutely right.

[00:33:57] Speaker 02:
The Board's... Sorry.

[00:33:59] Speaker 05:
So that's it with respect to that as a factor.

[00:34:01] Speaker 05:
That was not a factor in the Board's decision.

[00:34:04] Speaker 02:
Right, the board finds that the reason she was fired was because of her protected activity.

[00:34:09] Speaker 05:
But it did not use as evidence of that the fact that actually she didn't lie at all, or would have been unreasonable to conclude she lied.

[00:34:18] Speaker 02:
No, not...

[00:34:20] Speaker 02:
No, that's right.

[00:34:21] Speaker 02:
As soon as she lied and then went on from there.

[00:34:26] Speaker 02:
And then there are two findings that the board makes in regard to that, where even if she lied, we don't believe that that was the reason the employer lawfully fired her.

[00:34:34] Speaker 02:
And then the very last point that the administrative law judge makes is that even if she, I think maybe it's the second to last, even if she did lie, it was in the context

[00:34:44] Speaker 02:
of a protected conversation, and that's not a lawful reason.

[00:34:47] Speaker 02:
So there are sort of two different findings by the board there.

[00:34:50] Speaker 02:
The primary one, of course, would be, even if this is all true and she lied, we don't believe you, Verizon, that that's why.

[00:34:56] Speaker 02:
I got it.

[00:34:56] Speaker 05:
So now one of the reasons for concluding that she was wrongly terminated was the evidence of the hit list, right?

[00:35:05] Speaker 02:
Right, absolutely.

[00:35:06] Speaker 02:
And there were four, actually.

[00:35:08] Speaker 02:
There were four factors that were considered.

[00:35:10] Speaker 02:
And I'm not sure we've actually.

[00:35:11] Speaker 05:
I want to focus on that one for one moment.

[00:35:13] Speaker 05:
Sure, go ahead.

[00:35:14] Speaker 05:
The only evidence of the hit list that was referred to by the ALJ was the text message, right?

[00:35:20] Speaker 05:
Absolutely.

[00:35:21] Speaker 05:
So how can that be when the person who made the statement testified, and I would say one, two, three, at least four times denied

[00:35:32] Speaker 05:
that there was actually a hit list or that it had anything to do with being on the Union.

[00:35:37] Speaker 05:
Why doesn't that have to be at least be addressed by the ALJ in reaching its conclusion?

[00:35:43] Speaker 05:
I'm not saying the ALJ couldn't have in the end concluded that there was a hit list or whatever it is.

[00:35:53] Speaker 05:
Doesn't the failure to address what the guy said under oath shouldn't make us doubt whether that's a reasonable basis for reaching a conclusion?

[00:36:03] Speaker 02:
Sure, whether it undermines the substantial evidence?

[00:36:05] Speaker 02:
Sure.

[00:36:05] Speaker 02:
So let me sort of add two parts to the answer.

[00:36:08] Speaker 02:
The first one is before we focus just exclusively on Greece's taxes.

[00:36:12] Speaker 05:
I want to focus just exclusively on that.

[00:36:14] Speaker 05:
I don't want to get into anything else.

[00:36:15] Speaker 05:
First, I want to know why the failure of the ALJ to address contrary evidence

[00:36:21] Speaker 05:
by the speaker, by Graves, shouldn't make us doubt the substantial evidence here.

[00:36:27] Speaker 02:
Sure.

[00:36:27] Speaker 02:
On that specific issue, there were two different things I think that the ALJ says, not specific to the hit list, but there's no denial by Graves that what he meant was the employer was deliberately

[00:36:40] Speaker 02:
putting union activists at that store, which was also part of the ALJ's analysis of Graves' text, like what was going to show Animas.

[00:36:47] Speaker 02:
So you have that, there's no denial by Graves of that, and the administrative law judge recognizes that.

[00:36:50] Speaker 02:
There's no denial of what?

[00:36:51] Speaker 02:
Denial that Graves, so Graves said, there were several parts to Graves' text that were considered.

[00:36:56] Speaker 02:
There's the hit list, and then there was the other part of the texts that referred to the employer deliberately placing union activists at that store.

[00:37:05] Speaker 02:
Wait a minute, you're still not talking about his testimony.

[00:37:07] Speaker 02:
No, I am.

[00:37:08] Speaker 02:
Graves doesn't disavow.

[00:37:10] Speaker 02:
So Graves disavows what he meant by hit list.

[00:37:13] Speaker 02:
Graves does not disavow that, and he doubles down on it several times, that, in fact, the employer did put known union activists and union personalities, I think it's referred to several times, at that store.

[00:37:29] Speaker 02:
So you have him certainly walking back one part.

[00:37:31] Speaker 02:
At the store.

[00:37:32] Speaker 02:
At that particular Brooklyn location.

[00:37:34] Speaker 06:
Yes, at that particular.

[00:37:35] Speaker 06:
That doesn't mean they were negative to the union activists.

[00:37:41] Speaker 02:
I don't understand.

[00:37:42] Speaker 02:
We said a case in the brief that says that where an employer has sort of targeted a specific area as a union stronghold, that it's a consideration.

[00:37:49] Speaker 05:
And I think that... Can I ask you, where is that disgust, the point you're making now, in his finding of animus?

[00:37:58] Speaker 05:
The finding of animus begins at J39.

[00:38:02] Speaker 05:
He mentions the hit list.

[00:38:06] Speaker 05:
Yes, sorry, I'm looking.

[00:38:08] Speaker 05:
Where is the part about the fact that they concentrated union members in the store?

[00:38:16] Speaker 02:
So if you go, I'm sorry, I don't have mine.

[00:38:19] Speaker 02:
I'll just say the paragraph.

[00:38:20] Speaker 02:
I don't have it in the joint appendix.

[00:38:21] Speaker 02:
But on the page you just referenced, I believe, or maybe it's the next, it's the second page of the anonymous discussion, the paragraph starts here, I thought.

[00:38:29] Speaker 05:
Yes, that's the one I want, the one that says you're right.

[00:38:32] Speaker 02:
Go about three quarters of the way down.

[00:38:35] Speaker 02:
Similarly, Graves' text message that Cunningham Stores looked at as a stronghold, a base, per se, also evidences anti-union animus.

[00:38:45] Speaker 02:
And that was never disavowed by Graves during his testimony.

[00:38:49] Speaker 06:
Say it again.

[00:38:50] Speaker 06:
You read it too fast.

[00:38:52] Speaker 02:
I'm sorry.

[00:38:53] Speaker 02:
I just feel like I'm really laughing on this microphone.

[00:38:56] Speaker 02:
Sorry.

[00:38:57] Speaker 02:
Similarly, Graves' text message

[00:38:59] Speaker 02:
that Cunningham's store is looked at as a stronghold, a base per se, also evidences anti-union animus.

[00:39:07] Speaker 05:
All right, let's go with the first one.

[00:39:09] Speaker 05:
Why don't we have to reject the first, the argument about the hit list in light of his contrary testimony?

[00:39:17] Speaker 01:
I believe, let me make sure before I say this.

[00:39:24] Speaker 01:
I don't know, I thought that, I'm not going to say that because I'm not positive it's actually in the ALJ.

[00:39:29] Speaker 05:
So he says all this stuff about the hit list, then when the guy's asked under oath, on direct, presumably favorably, and will use someone, you were referring to a hit list of union supporters, weren't you?

[00:39:47] Speaker 05:
No, you weren't?

[00:39:48] Speaker 05:
No, I was not.

[00:39:50] Speaker 05:
Then you were referring to a hit list of answer in general.

[00:39:54] Speaker 05:
In general question, in general.

[00:39:56] Speaker 05:
What is the general hit list?

[00:39:59] Speaker 05:
And the next page.

[00:40:02] Speaker 05:
What did you mean when you texted?

[00:40:05] Speaker 05:
Me, as an employee, I felt in general there was a hit list.

[00:40:08] Speaker 05:
By the way, was he, he was a supervisor, right?

[00:40:11] Speaker 02:
He was.

[00:40:11] Speaker 05:
He's not a member of the union.

[00:40:12] Speaker 02:
He's not a member of the union, no.

[00:40:14] Speaker 05:
Me, as an employee, I felt in general there was a hit list.

[00:40:16] Speaker 05:
I, myself, felt that I would be in danger.

[00:40:20] Speaker 05:
I, myself, had people that I thought might be in danger.

[00:40:23] Speaker 05:
A hit list.

[00:40:23] Speaker 05:
It wasn't union or not union.

[00:40:27] Speaker 05:
Okay, so, and it goes on several times.

[00:40:30] Speaker 05:
Now, how can an ALJ who says there's a hit list not at least address this testimony?

[00:40:37] Speaker 02:
Sure, and it may be that that was an oversight on the part of the administrative logic, but what I would remind the court- No, what is the answer to it then?

[00:40:44] Speaker 05:
If it's an oversight, this is not- The question- Sorry, I apologize.

[00:40:48] Speaker 05:
The rule about substantial evidence requires consideration of both plus and minus.

[00:40:54] Speaker 05:
It seems like the evidence here on that point

[00:40:57] Speaker 05:
on which the algae is relying is quite minus.

[00:41:01] Speaker 02:
And you have further doubts.

[00:41:03] Speaker 02:
So that's all I can say about the Graves text.

[00:41:04] Speaker 02:
You're absolutely right.

[00:41:05] Speaker 02:
He doesn't address the disavowal at the hearing.

[00:41:09] Speaker 02:
He does speak about other parts of Graves'.

[00:41:11] Speaker 02:
But then I think what's most important is

[00:41:15] Speaker 02:
I think perhaps we're forgetting that he identifies the most compelling evidence of animus.

[00:41:22] Speaker 02:
I would readily acknowledge that if there was only Graves' texts and you didn't have an administrative law judge addressing various parts of those texts,

[00:41:37] Speaker 02:
It would be a harder argument for me to make.

[00:41:39] Speaker 02:
But there are more... The graves was the last... And the more are only two more things.

[00:41:46] Speaker 05:
The length of the investigation and the comparators.

[00:41:51] Speaker 02:
Two different kinds of comparators, sorry.

[00:41:53] Speaker 02:
In my notes, I have them as two different.

[00:41:54] Speaker 02:
There's the disparate disciplinary treatment, people who... And then there's the more egregious violations getting the lesser punishment.

[00:42:03] Speaker 02:
So to answer Judge Silberman's question, identified by the Administrative Law Judge, the most compelling evidence, and that's a direct quote from the decision, is the disparate disciplinary treatment.

[00:42:15] Speaker 02:
And we've already talked a little bit about the Arlene Francis example.

[00:42:19] Speaker 02:
And, but there were others, it's not just, there was this one.

[00:42:22] Speaker 06:
Arlene Francis was a manager, right, not an employee.

[00:42:27] Speaker 02:
Absolutely, they're all bound by the same code of conduct.

[00:42:29] Speaker 06:
That's true, that's true.

[00:42:31] Speaker 06:
If you were running a company, do you think you'd give a senior manager a little more leeway than you'd give an employee?

[00:42:38] Speaker 02:
I don't run a company, but I tell you what, if my manager came to me and said, yeah, I authorize, or no, I don't know anything about these non-employees not getting any overtime for the tune of $300, I might have an issue with that, yes, but I don't run a company.

[00:42:51] Speaker 06:
Of course, of course, if you were a manager.

[00:42:54] Speaker 06:
Now, but it's not up to the NLRB to determine proper management practices.

[00:43:00] Speaker 02:
Absolutely not.

[00:43:01] Speaker 06:
Therefore, the cases which the ALJ described that he thought were more serious than lying

[00:43:08] Speaker 06:
in investigation are utterly irrelevant, are they not?

[00:43:13] Speaker 06:
No, I don't think so, and I'm not sure most of... Isn't it improper for the ALJ or the board to look at other matters and say, gee, I think these other matters are more serious?

[00:43:25] Speaker 06:
I think if I was running the company, I would regard those other matters as... Now, every court that's looked at that kind of analysis said the board can't do that.

[00:43:33] Speaker 02:
Sure, and I don't know, so then we could flip to what Verizon says.

[00:43:39] Speaker 02:
Here are the right comparators.

[00:43:40] Speaker 02:
These are the people we did fire.

[00:43:42] Speaker 02:
And that came in on the second part of the right line test.

[00:43:46] Speaker 02:
And if you look at those, those aren't even comparators either.

[00:43:48] Speaker 02:
Let's remember this, Bianca Cunningham has no underlying misconduct.

[00:43:53] Speaker 02:
She did nothing other than engage, she was required to do in an investigation.

[00:43:59] Speaker 02:
All of the other examples in the record, everything, everything both from the general counsel side of the House and the employers, is all of the people who lied in investigative interviews had underlying misconduct.

[00:44:12] Speaker 02:
And even sometimes those people, so you had underlying misconduct.

[00:44:15] Speaker 06:
Well, why don't you think that Cunningham had underlying misconduct?

[00:44:18] Speaker 06:
Because by lying, she was jeopardizing the other employee very seriously.

[00:44:23] Speaker 02:
But the employer doesn't say that.

[00:44:26] Speaker 02:
The employer doesn't – there's no identification of misconduct.

[00:44:28] Speaker 02:
You have to go with what the employer says.

[00:44:30] Speaker 02:
And they said, we fired you because you said – they identified three things that they really cared about.

[00:44:35] Speaker 06:
You don't think it's fair to say that they had a policy generally against lying during an investigative interview?

[00:44:41] Speaker 02:
I actually don't think the board or I have a problem with that.

[00:44:44] Speaker 02:
What we have a problem with is that if you have, it was the next step of that where they say, we have this policy and if you violate it, you get fired, flat out.

[00:44:53] Speaker 02:
And that is where the board takes issue with them saying, you didn't prove that, which you have to do.

[00:44:57] Speaker 02:
You don't, you can't just show us.

[00:44:58] Speaker 06:
Who has to prove that?

[00:45:00] Speaker 02:
Once the general counsel satisfied his prima facie case, they have to show, I would have.

[00:45:04] Speaker 06:
Well, isn't the general counsel using the same evidence as the prima facie case?

[00:45:08] Speaker 06:
No, the general counsel... The general counsel used disparate treatment as his prime official case, isn't it?

[00:45:13] Speaker 02:
Right, but not to... Different ones.

[00:45:17] Speaker 02:
It was different.

[00:45:18] Speaker 02:
I know there were so many examples of sort of misconduct going on.

[00:45:20] Speaker 02:
There was a set that was looked at to show people do worse things.

[00:45:24] Speaker 02:
The Arlene Francises, the five employees who lied about, or more than that, who lied about gift card use, the guy who took the tablet and then lied about it and only said when presented with an email, oh yeah, turns out I did take that tablet.

[00:45:35] Speaker 02:
Those were the general counsel's exhibits.

[00:45:37] Speaker 02:
for showing you tolerate a heck of a lot more than this one woman who couldn't remember telephone conversations and whether she had more text messages or phone calls.

[00:45:47] Speaker 02:
And then when... A little more than that, wasn't it?

[00:45:50] Speaker 02:
What's that?

[00:45:51] Speaker 02:
A little more than that.

[00:45:52] Speaker 02:
Sure.

[00:45:53] Speaker 02:
And then we had the... So that was the prima facie case.

[00:45:57] Speaker 02:
And then there was the shifting to

[00:45:59] Speaker 02:
the employer to say, we would have fired her anyway.

[00:46:03] Speaker 02:
And in an effort to do that, they say, we have a policy.

[00:46:06] Speaker 02:
If you lie in an investigation, you get fired.

[00:46:09] Speaker 02:
And those examples, and we have them in a chart from page 38 in our brief, those examples

[00:46:14] Speaker 02:
they argued, showed we don't tolerate lying.

[00:46:17] Speaker 02:
And then what the ALJ does and what the board does is says, no, that comparator evidence doesn't do anything for you because those aren't good examples of comparisons.

[00:46:26] Speaker 02:
Those people have underlying misconduct and then they lied about it in an investigation.

[00:46:31] Speaker 02:
So those aren't good comparisons.

[00:46:32] Speaker 02:
They don't even stop there.

[00:46:34] Speaker 02:
Then the board says, even if we take for your word that these are comparators and that our charging party is on the same footing as them,

[00:46:44] Speaker 02:
all you've done is show that you could have fired her, because you have the general counsel's evidence showing one thing, you have the employer's evidence showing another, and so the best the ALJ says is this is a mixed record, I prefer sort of an inconsistent record to show that this is in fact not the policy of this employer, and so then,

[00:47:02] Speaker 02:
They go back to you didn't show, you didn't rebut the prima facie case because you didn't show you would have fired her.

[00:47:09] Speaker 02:
You showed that you could have fired her and that's insufficient.

[00:47:12] Speaker 02:
So certainly there were two sort of different sets of evidence that were being used for different things and then they came in on the pretext finding and things like that.

[00:47:19] Speaker 02:
So it's a bit confusing but it certainly wasn't a matter of the general counsel didn't put anything on and the employer did.

[00:47:25] Speaker 05:
What is it that gets us to this second stage?

[00:47:29] Speaker 02:
activity, knowledge, and animus.

[00:47:32] Speaker 05:
Where's the animus again?

[00:47:34] Speaker 05:
If this isn't evidence of animus, but rather of not showing you could, where's the animus evidence?

[00:47:41] Speaker 02:
So the animus is the, I'm gonna call them the Arlene Francis examples.

[00:47:44] Speaker 02:
So the ones on 38 are strictly- Of which there's only four, right?

[00:47:48] Speaker 02:
At least, I think we put four in the brief.

[00:47:50] Speaker 02:
No, they're page 34 of our brief, so there's one, two,

[00:47:54] Speaker 06:
I thought there were only two.

[00:47:56] Speaker 01:
No, one, two.

[00:47:56] Speaker 01:
No, there are more than that from the ALJ.

[00:47:58] Speaker 01:
In the brief, let me see where the ALJ does it.

[00:48:00] Speaker 01:
No, there are more than four.

[00:48:03] Speaker 01:
Five.

[00:48:06] Speaker 02:
So there's, so Arlene Francis one is the one that obviously gets the most amount of words.

[00:48:11] Speaker 02:
And then the other, and then if you go down to the bottom on mine, I'm sorry, it's ALJ 23.

[00:48:15] Speaker 02:
Hopefully it has that number still in your joint appendix.

[00:48:19] Speaker 02:
The last pair.

[00:48:19] Speaker 06:
In the Arlene Francis case, he wasn't the manager.

[00:48:24] Speaker 06:
who made the decision believe she was telling the truth?

[00:48:27] Speaker 02:
That's what Verizon said, yes.

[00:48:30] Speaker 02:
Isn't that true?

[00:48:32] Speaker 02:
I don't know if that's true.

[00:48:33] Speaker 06:
That's what a Verizon witness said.

[00:48:36] Speaker 06:
Well, you have no contrary testimony.

[00:48:39] Speaker 02:
Well, the ALJ says, the ALJ doesn't credit that.

[00:48:41] Speaker 02:
The ALJ says, unbelievably, when asked to explain the difference in this case.

[00:48:45] Speaker 06:
Well, he has no evidence of any other kind.

[00:48:48] Speaker 02:
Certainly not.

[00:48:49] Speaker 06:
The only evidence is that the manager, the manager's manager, believed it.

[00:48:55] Speaker 06:
Right.

[00:48:56] Speaker 06:
That's the only evidence.

[00:48:58] Speaker 06:
OK, so if you don't believe

[00:49:01] Speaker 06:
If the ALJ doesn't credit that testimony, what does he have?

[00:49:05] Speaker 06:
Nothing.

[00:49:07] Speaker 02:
Well, he has the performance file that came in that shows she received the email 10 days later.

[00:49:12] Speaker 02:
She says, I've never heard of this thing before.

[00:49:14] Speaker 02:
I don't know anything about this.

[00:49:16] Speaker 02:
Then they produced the document showing, well, it turns out actually you did know about it because you replied to your subordinate.

[00:49:21] Speaker 02:
And then she says, oh, yeah, it turns out I do remember this.

[00:49:24] Speaker 02:
And in the meantime, she goes around the plant and tells everybody that it was her subordinate's fault, not hers.

[00:49:28] Speaker 02:
So I think that the, so there's that.

[00:49:31] Speaker 02:
And then you do have the ALJ saying he doesn't believe what this witness is saying, the self-serving testimony to say, well, we believed her.

[00:49:39] Speaker 02:
So she believed him.

[00:49:40] Speaker 02:
I believed him.

[00:49:41] Speaker 02:
The Verizon witness says that.

[00:49:43] Speaker 02:
Oh, you believe it, Judge Silverman.

[00:49:44] Speaker 02:
No, no, no, no.

[00:49:45] Speaker 02:
The witness said, I believe it.

[00:49:46] Speaker 02:
The witness did, yes.

[00:49:47] Speaker 02:
And you have the ALJ saying, basically saying, I don't credit that testimony.

[00:49:50] Speaker 02:
I don't find that persuasive, given all of the factors, or all of the, not factors, the considerations surrounding that testimony.

[00:49:57] Speaker 02:
And he characterizes this as unbelievable.

[00:49:59] Speaker 02:
In any event, that leaves nothing.

[00:50:02] Speaker 06:
Well, there's, again, there are other... No, I mean, once he said, I don't believe it, then you have facts

[00:50:11] Speaker 06:
But you don't know any way to evaluate them.

[00:50:14] Speaker 06:
That's fair.

[00:50:14] Speaker 06:
Right.

[00:50:15] Speaker 02:
Right.

[00:50:15] Speaker 06:
There's no witness to the contrary.

[00:50:18] Speaker 02:
There is no witness to the contrary.

[00:50:19] Speaker 02:
No, they didn't know.

[00:50:20] Speaker 02:
No.

[00:50:21] Speaker 02:
But you do have the other examples where there's no question that the five employees in the gift card scam lied.

[00:50:27] Speaker 02:
And yes, during the scam itself, they were acting in the direction of supervisors.

[00:50:31] Speaker 02:
I don't know exactly how that happened.

[00:50:32] Speaker 02:
And the supervisor was fired.

[00:50:34] Speaker 02:
I take their word for that.

[00:50:35] Speaker 02:
I didn't know that.

[00:50:36] Speaker 02:
But I would not dispute that.

[00:50:39] Speaker 02:
But they lied in the interview.

[00:50:43] Speaker 02:
So certainly you could forgive, I suppose, if you're the employer, that they were acting at the direction of their supervisors.

[00:50:49] Speaker 02:
But if you're going to take the position that we fire you no matter what, if you lie during an investigation, there were examples of these gift card scammers that actually didn't.

[00:50:57] Speaker 02:
They lied during the investigation.

[00:50:59] Speaker 02:
And again, there's the demo.

[00:51:00] Speaker 02:
So these are all the examples.

[00:51:01] Speaker 02:
This is the general counsel's examples.

[00:51:03] Speaker 02:
There's also the store tablet.

[00:51:05] Speaker 02:
The man took the tablet to take it on vacation when he was asked about it.

[00:51:09] Speaker 02:
And they gave him the make and model number on the thing.

[00:51:11] Speaker 02:
And he said, I've never heard of that.

[00:51:12] Speaker 02:
And then they show him the email that he had recounted to a friend of his that he had lost it.

[00:51:16] Speaker 02:
And then in that interview, immediately, he says, oh, yeah, it turns out I did take that.

[00:51:20] Speaker 02:
And then when I sold my car, I forgot to get it out.

[00:51:22] Speaker 02:
But that was never recovered as far as I know for Verizon.

[00:51:25] Speaker 02:
So that was the.

[00:51:27] Speaker 02:
So those are sort of the factors of the animus finding of the disparate disciplinary treatment, the more egregious violations that didn't result.

[00:51:34] Speaker 06:
What about the length of time?

[00:51:35] Speaker 06:
Isn't that a little ridiculous?

[00:51:39] Speaker 02:
I think the length of the investigation was ridiculous.

[00:51:41] Speaker 06:
For a company to spend, look, it's obvious the woman was involved in protected activity.

[00:51:48] Speaker 06:
Is it somehow evidence of bad faith for a company's lawyers to consider it carefully before the decision is made?

[00:51:58] Speaker 02:
Certainly, I'm not going to stand here and say it's unreasonable.

[00:52:02] Speaker 06:
No, one day you made me out as a private lawyer, and you know when you heard your eyes roll.

[00:52:07] Speaker 02:
But I would say, as we cited the brief, there's the Inova case, where it can be a consideration for the court to look at, was this an unusual investigation?

[00:52:15] Speaker 02:
Is it unusual for a person who left two hours early to ultimately have the investigation run three months?

[00:52:23] Speaker 02:
It was three months from May 21 until September

[00:52:25] Speaker 02:
Maybe even longer, maybe doing the math wrong.

[00:52:28] Speaker 02:
And it was the highest level, it was very high level officials.

[00:52:31] Speaker 02:
Some of this time is dealing with the Union, based on... Certainly there are the Alan Ritchie meetings and things like that, but when they announced the Alan Ritchie meetings, I believe the record shows that this happened within two weeks, because there were two of them scheduled and then one didn't end up in a termination.

[00:52:45] Speaker 02:
So unless there are any other questions on animus, I can talk about.

[00:52:50] Speaker 05:
How long was it before she found the text messages?

[00:52:56] Speaker 02:
I believe she found them on.

[00:52:59] Speaker 02:
Right around July 22nd.

[00:53:02] Speaker 05:
How long into that?

[00:53:04] Speaker 02:
That was May 21st to July 22nd.

[00:53:06] Speaker 02:
So was that three months?

[00:53:08] Speaker 02:
Two months, sorry, two months.

[00:53:09] Speaker 05:
So it wasn't until two months into it that, I'm going to use the word change, changed her story.

[00:53:16] Speaker 05:
Again, not on the question of whether she actually did or not, but since the board seems to assume it.

[00:53:23] Speaker 05:
So it took two months before she changed her story.

[00:53:26] Speaker 02:
Yes.

[00:53:28] Speaker 05:
Then does it seem unreasonable that it would take another month after that?

[00:53:33] Speaker 05:
Now we're only talking about one month decision.

[00:53:35] Speaker 02:
No, no, no, because she was she wasn't terminated until September 14th.

[00:53:41] Speaker 02:
So they find out, so to be fair to the employer on the timeline, she finds out on July 22nd.

[00:53:47] Speaker 02:
She realizes that on July 22nd.

[00:53:50] Speaker 02:
But to be fair to the employer, the employer isn't told of her new texts or the texts that she just located until August 6th.

[00:53:58] Speaker 05:
And then she's fired when?

[00:53:59] Speaker 02:
Fired September 14th.

[00:54:02] Speaker 05:
Okay, so that's one month from when she tells a story that would lead to her being fired.

[00:54:07] Speaker 02:
Right, but let's remember it's not a completely independent investigation.

[00:54:11] Speaker 02:
All of what she had said had already happened.

[00:54:14] Speaker 02:
The interviews, there were several interviews.

[00:54:16] Speaker 02:
They weren't started from scratch, I guess.

[00:54:17] Speaker 05:
Isn't that right?

[00:54:17] Speaker 05:
You just said that the employer didn't have the texts until August?

[00:54:22] Speaker 02:
True.

[00:54:22] Speaker 02:
And all I mean is that you're not starting the investigation anew because you're working off interviews that had occurred.

[00:54:28] Speaker 05:
But all of a sudden, on August 6, the employer now has textual evidence that the story, I want you, we're assuming for this purpose.

[00:54:39] Speaker 05:
I know, I understand.

[00:54:39] Speaker 05:
That she lied.

[00:54:40] Speaker 05:
They didn't have that evidence before.

[00:54:43] Speaker 05:
So that's when the real investigation of her firing begins as compared to the investigation of whether, what's, how do you pronounce the other word?

[00:54:52] Speaker 02:
I said estuary, I have no idea if that's what it's called.

[00:54:54] Speaker 05:
Estuary should be fired.

[00:54:57] Speaker 05:
So now we're only talking about on Monday.

[00:55:00] Speaker 02:
But I think the board is looking at sort of the overall... I know they are, but why are they looking at it?

[00:55:06] Speaker 05:
She hasn't given cause for her own firing until we find out that her story is different than what she told them before.

[00:55:13] Speaker 02:
Right, and I guess what the board, I don't know how to say this very clearly, but you know, other than the text messages, there isn't any, the board didn't, I'm sorry, the employer, didn't have to start the investigation anew.

[00:55:25] Speaker 05:
I don't understand what that means.

[00:55:26] Speaker 05:
She hadn't done anything wrong as far as the board knew before.

[00:55:28] Speaker 02:
But they still had all of her interview, knowing at that point, so you have two different stories.

[00:55:33] Speaker 05:
But her interview is a different story, right?

[00:55:36] Speaker 02:
She still, it's really a different story to the, what she said is still the same.

[00:55:40] Speaker 02:
Now you just have text messages that differ from her account.

[00:55:44] Speaker 02:
But she never changed her oral rendition of what happened.

[00:55:49] Speaker 02:
So the employer is starting from a point of... I'm confused.

[00:55:54] Speaker 03:
I think that the way that ALJ puts it is that there was a prolonged investigation and he compares when employees leave a non-unionized store... Right.

[00:56:03] Speaker 02:
It's a full five days.

[00:56:04] Speaker 03:
It's the unionized store which encompasses Eshtori and Cunningham, that there's a kind of attention to all of these people are implicated in the union, right?

[00:56:14] Speaker 03:
Right.

[00:56:15] Speaker 03:
Because Eshtori is a member, Cunningham is a leader.

[00:56:18] Speaker 03:
So the way the ALJ puts it, at least, is that employees assigned to stores other than the unionized Brooklyn locations simply receive written warnings, and then it was a federal case where it was a unionized store.

[00:56:32] Speaker 03:
So I guess the way the ALJ seems to be seeing it is Exitory, Cunningham, whatever they're going to... It's a very long... They're going to push on those stores and the employees involved... Push on those stores or treat them very carefully.

[00:56:49] Speaker 02:
The ALJ classifies it as sort of extra scrutiny having to do with the union.

[00:56:54] Speaker 02:
Certainly that's another way to look at it, but the administrative law just specifically finds that it was the union aspect of it, not.

[00:57:01] Speaker 02:
Well, of course.

[00:57:01] Speaker 05:
No, but they can't have found that.

[00:57:03] Speaker 05:
This itself is the evidence of the union.

[00:57:07] Speaker 05:
You can't start with the assumption that it's the union and then say this is cause of the union.

[00:57:11] Speaker 03:
Right, no, but it means that the store, the differentiation that the ALJ is making is it's a store that's unionized versus a store that's not.

[00:57:20] Speaker 03:
And employees at stores that are not unionized leave three hours early without approval, get a written warning.

[00:57:28] Speaker 03:
quick decision, leave work without authorization, decision made within a few weeks, receive a written warning for leaving early multiple times, 42 times late and early, leaving early three times, called out sick four times, not fired.

[00:57:49] Speaker 03:
So it's the union stories versus the non-union stories.

[00:57:52] Speaker 06:
She wasn't fired for leaving early, was she?

[00:57:55] Speaker 02:
No, they say that they fired her because she lied during the investigation.

[00:57:59] Speaker 02:
Right.

[00:58:01] Speaker 05:
Where can you tell me which paragraph again?

[00:58:03] Speaker 05:
I'm just sorry, it's hard to find.

[00:58:05] Speaker 05:
Which paragraph is the paragraph about how long it took?

[00:58:11] Speaker 01:
It's one of the factors under animus.

[00:58:14] Speaker 01:
Let me find it for you.

[00:58:17] Speaker 01:
It's going to say the length.

[00:58:18] Speaker 01:
It's going to use the phrase length and breadth of the investigation.

[00:58:21] Speaker 01:
That's the one.

[00:58:22] Speaker 01:
Length and breadth.

[00:58:22] Speaker 01:
That's it.

[00:58:22] Speaker 05:
It starts with finally.

[00:58:23] Speaker 05:
But where is that?

[00:58:25] Speaker 02:
I'm on page 24 of the actual ALJ.

[00:58:28] Speaker 02:
Let me look at mine.

[00:58:29] Speaker 02:
It's accompanying about 4999.

[00:58:31] Speaker 02:
I never use the appendix for mine.

[00:58:34] Speaker 05:
The finding of animus begins on page J38.

[00:58:39] Speaker 05:
I'm just trying to find it.

[00:58:40] Speaker 05:
I saw it too, but where is it?

[00:58:42] Speaker 02:
Sure, so go to page 41, joint appendix, right around line 20.

[00:58:45] Speaker 02:
Find the legal length and breadth of the investigation.

[00:58:51] Speaker 02:
And then the next paragraph gives examples of how non-union shops employees leaving early have been treated.

[00:59:02] Speaker 05:
And where did they...

[00:59:06] Speaker 05:
So this might be an argument for they took too long with Esh-Tourie?

[00:59:11] Speaker 05:
Is that the argument?

[00:59:14] Speaker 02:
Well, I think it's generally the events into May 21, so that's going to involve the conversations.

[00:59:19] Speaker 02:
It's going to involve the whole thing that Esh-Tourie's departure started, but sort of pulled in Cunningham as the investigation unfolded.

[00:59:28] Speaker 05:
Well, could they have made a decision within five days, given the union contract and the requirement of retribution?

[00:59:34] Speaker 02:
I don't know.

[00:59:35] Speaker 05:
I don't know.

[00:59:37] Speaker 02:
I – having to hold an Alan Ritchie meeting, I probably – we probably couldn't do it in five days now, but I don't know.

[00:59:43] Speaker 06:
They had that case, the Ritchie case, which led them to understand, as I gather, that they had to really negotiate this with the union.

[00:59:54] Speaker 02:
I don't know if they – they still didn't know what it was.

[00:59:56] Speaker 06:
Right.

[00:59:57] Speaker 06:
But notify, discuss with the union.

[00:59:59] Speaker 06:
Right.

[01:00:00] Speaker 06:
Which is part of what they did.

[01:00:02] Speaker 00:
At the end, yes, at the end.

[01:00:04] Speaker 05:
Right.

[01:00:04] Speaker 05:
All right.

[01:00:05] Speaker 05:
Are there further questions?

[01:00:07] Speaker 05:
I guess not.

[01:00:08] Speaker 05:
All right, any time left for?

[01:00:11] Speaker 05:
No time left, I'll give you a minute.

[01:00:15] Speaker 04:
Case your honor referred to was the MECO case on whether a manager's comments could be attributed to the decision.

[01:00:24] Speaker 06:
I didn't hear what you said.

[01:00:25] Speaker 04:
The MECO case.

[01:00:26] Speaker 04:
Yes.

[01:00:27] Speaker 04:
That's the one I did not know the answer to your question to before.

[01:00:30] Speaker 06:
When a straight comment of a minor supervisor not having anything to do with the decision,

[01:00:38] Speaker 06:
to take action is not regarded as significant anonymously.

[01:00:44] Speaker 04:
Yes, Your Honor.

[01:00:46] Speaker 04:
Counsel just made reference, as the Court occasionally does, to the prima facie case presented by the General Counsel.

[01:00:51] Speaker 04:
I think we should be clear about what that means.

[01:00:54] Speaker 04:
In a right-line case, the General Counsel has the obligation to prove

[01:00:59] Speaker 04:
is the burden of proof to prove that anti-union animus was a motivating factor to the discharge.

[01:01:07] Speaker 04:
It's not some showing.

[01:01:09] Speaker 04:
It has to be proof on the record as a whole.

[01:01:12] Speaker 04:
Then the employer can have a response.

[01:01:15] Speaker 04:
You will not find a case in which just

[01:01:21] Speaker 04:
disparate treatment without any showing, other showing of anti-union animus.

[01:01:25] Speaker 04:
Disparate treatment that's several cases out of, you know, it's like a tie score, you know, how many times got fired, how many times didn't get fired.

[01:01:33] Speaker 04:
You'll find when you go through the cases of this court, to find that the, that the trial counsel has, that the board has met its burden, that you have clear evidence of anti-union animus.

[01:01:44] Speaker 04:
Two of the three cases, the most recent years have the employers, a representative place saying, we're going to get you to the person ultimately fired.

[01:01:52] Speaker 04:
Not only was the evidence not here, but the point about evidence and record as a whole is the ALJ never even mentions that Brett Ulrich, the company's chief negotiator, got on the stand under oath and testified that he enjoyed working with Ms.

[01:02:09] Speaker 04:
Cunningham, that they had productive relationships, and that Ms.

[01:02:13] Speaker 04:
Cunningham herself could testify to no animus.

[01:02:17] Speaker 04:
In fact, the only fact related to this that the ALJ found was the company had noticed because Ms.

[01:02:26] Speaker 04:
Cunningham's manager complimented her on how well she handled both her union activities and her responsibilities at the store.

[01:02:36] Speaker 04:
Yeah, the ALJ started off with the assumption that if you fired a union representative, then the question is, let's find the anti-union animus.

[01:02:46] Speaker 04:
And that's what he set out to do.

[01:02:48] Speaker 04:
That's why explicitly he took Exhibit 49.

[01:02:52] Speaker 04:
And at the very least,

[01:02:56] Speaker 04:
there ought to be an explanation in the board's decision for how, given the enormous weight that there was no anti-union animus, it came to the conclusion there was anti-union animus.

[01:03:06] Speaker 04:
This court's entitled to more than a couple of footnotes.

[01:03:09] Speaker 03:
I don't think that those statements that I enjoy, working with a person who's very professional, necessarily contradict any finding of anti-union animus.

[01:03:18] Speaker 03:
You can think that the person is in a role that you abhor.

[01:03:21] Speaker 03:
You'd rather not have to do that work at all.

[01:03:24] Speaker 03:
and think that the person who is nonetheless engaging with you in that work is doing it in a professional and fair manner.

[01:03:34] Speaker 03:
So I think that it's sort of like the misunderstandings people have about sex discrimination.

[01:03:39] Speaker 03:
Someone can be very nice to you and nonetheless behave in a discriminatory manner.

[01:03:45] Speaker 03:
And so I don't see that as a fatal flaw in ALJ's opinion.

[01:03:50] Speaker 03:
That's all I'm saying.

[01:03:53] Speaker 04:
It's a fatal flaw not to address the evidence that would establish there was no anti-unionist.

[01:03:59] Speaker 03:
Not if you don't think that it's either here or there with respect to animus.

[01:04:04] Speaker 04:
Well, there was testimony by every single company witness that the fact that Ms.

[01:04:10] Speaker 04:
Cunningham gave aid to Ms.

[01:04:13] Speaker 04:
Ishiro Itori that night had no effect on their decision to fire her.

[01:04:17] Speaker 04:
That certainly has to be addressed.

[01:04:20] Speaker 04:
They were all, according to ALJ, implicitly perjuring themselves.

[01:04:24] Speaker 04:
And in the context of the record as the whole, the fact that, in fact, Mr. Ollick also testified that Ms.

[01:04:33] Speaker 04:
Cunningham had repeatedly, during the course of negotiations, brought complaints from other employees to the table to be addressed.

[01:04:41] Speaker 04:
And he found that to be useful.

[01:04:43] Speaker 04:
That is inconsistent with the idea that he participated in a discharge months later because she, because Ms.

[01:04:50] Speaker 04:
Cunningham gained aid to Ms.

[01:04:51] Speaker 04:
S. Sartori that night.

[01:04:52] Speaker 03:
I think it's the baseline, the burden of proof is on the general counsel, because we assume, and people testify in every discrimination case, whether the plaintiff wins or not, that they didn't mean any harm.

[01:05:06] Speaker 03:
I don't see that as a flaw.

[01:05:09] Speaker 03:
The burden is put on the general counsel precisely because the employer is presumed to be acting without animus until proved otherwise.

[01:05:20] Speaker 04:
It's the baseline that's also inconsistent with the finding.

[01:05:28] Speaker 04:
Your own words in the Osborne case.

[01:05:35] Speaker 04:
Where's the evidence of Inns directed to the employee?

[01:05:40] Speaker 04:
Where's the timing?

[01:05:41] Speaker 04:
The company knew what Ms.

[01:05:43] Speaker 04:
Cunningham had done in terms of aiding Ms.

[01:05:46] Speaker 04:
Ishwaraturi for several weeks.

[01:05:49] Speaker 04:
It turned to discipline Ms.

[01:05:51] Speaker 04:
Cunningham, investigate Ms.

[01:05:52] Speaker 04:
Cunningham first, only after it had reason to believe she lied.

[01:05:58] Speaker 04:
The only thing of the three things you identify was the company's knowledge of Ms.

[01:06:04] Speaker 04:
Cunningham's protected activity.

[01:06:06] Speaker 04:
And every witness who testified said, that was pretty good.

[01:06:11] Speaker 04:
Thank you very much.

[01:06:12] Speaker 05:
I have one more question.

[01:06:16] Speaker 05:
Did the company say that the reason it fired her was because it always fires people who lie in an investigation?

[01:06:24] Speaker 04:
No.

[01:06:24] Speaker 04:
I said that the company consistently fires people that they believe are lying during an investigation.

[01:06:31] Speaker 05:
Was this testimony?

[01:06:32] Speaker 04:
No.

[01:06:34] Speaker 04:
A couple of witnesses were asked whether they were aware of employees who had lied and not been fired, and they said no.

[01:06:43] Speaker 04:
That's a different proposition.

[01:06:44] Speaker 05:
So the NLRB's proposition is the company says it always fires and then it comes up with some examples of ones that didn't and that means the company's lying.

[01:06:55] Speaker 04:
The statement is not based on the record, Your Honor.

[01:06:59] Speaker 04:
Even I said that the company, when it identifies lying, consistently fires people.

[01:07:02] Speaker 04:
I think that's true.

[01:07:03] Speaker 04:
There were exceptions, and I said there were exceptions at the time.

[01:07:06] Speaker 04:
The one with the gift cards was the most obvious example.

[01:07:09] Speaker 06:
So the answer to the question is the company never testified that they always fire anybody who lies.

[01:07:14] Speaker 04:
I recall no such testimony.

[01:07:16] Speaker 04:
Yes.

[01:07:17] Speaker 04:
I recall testimony from the company, Fires People Who Lie.

[01:07:19] Speaker 05:
You talked about there's a policy.

[01:07:20] Speaker 05:
I understand that it fires people who lie, but that's different than saying it always fires.

[01:07:25] Speaker 05:
It fires everyone who lies.

[01:07:27] Speaker 04:
That statement was not made.

[01:07:29] Speaker 05:
Okay.

[01:07:29] Speaker 05:
Thank you.

[01:07:29] Speaker 05:
We'll take the matter under submission.

[01:07:31] Speaker 04:
Thank you.