[00:00:06] Speaker 00:
At L, Econauts Holdings, Inc.

[00:00:08] Speaker 00:
Petitioner versus National Labor Relations Board.

[00:00:11] Speaker 00:
Mr. Sparks for petitioner.

[00:00:12] Speaker 00:
Mr. Casterly for the respondent.

[00:00:45] Speaker 05:
Good morning, Judge.

[00:00:46] Speaker 05:
Ken Sparks for Petitioner Equinox Holdings.

[00:00:50] Speaker 05:
Good morning.

[00:00:52] Speaker 05:
Judge, as this case grows out of a close NLRB election that was decided by the votes of four voters.

[00:00:58] Speaker 05:
The vote was 41 to 33.

[00:01:00] Speaker 05:
If four voters change their mind, the outcome of this election is different.

[00:01:05] Speaker 05:
There are two principal arguments to discuss on the appeal.

[00:01:08] Speaker 05:
The first issue is whether or not the NLRB abused its discretion by allowing a party to place a person known to the voters in this community to have brought a gun to work only four days prior to this election.

[00:01:24] Speaker 05:
The second issue and the alternative issue is a subpoena issue.

[00:01:28] Speaker 05:
Whether that same individual, there are additional threats attributed to that same individual.

[00:01:33] Speaker 05:
They were attributed by a witness and an employee who was reluctant to come in and testify.

[00:01:38] Speaker 05:
He had told the manager about his concerns.

[00:01:40] Speaker 05:
He had told the manager about the threats.

[00:01:42] Speaker 05:
Those threats were relayed to the hearing examiner.

[00:01:44] Speaker 05:
The hearing examiner refused to recess the hearing to enforce a subpoena when the employee would not come in voluntarily to relay those statements.

[00:01:52] Speaker 01:
Well, what bothers me, Counsel, in the second issue,

[00:01:55] Speaker 01:
is there never was a proffer by the employer suggesting that the witness would testify that the observer had brandished the gun and connected it in some way with the campaign or the election.

[00:02:17] Speaker 05:
Judge, there are two responses, I think, to that issue.

[00:02:20] Speaker 05:
The first issue is the other evidence that occurs, obviously, in the case.

[00:02:24] Speaker 05:
The brandishing of the gun occurs only days before the election.

[00:02:28] Speaker 01:
The brandishing of the gun or not brandishing of the gun is not the key to me and to the board, which is there's no connection between that act and the union campaign and the election.

[00:02:43] Speaker 01:
In other words, no witness was proposed

[00:02:48] Speaker 01:
proffered for the proposition that the observer had brandished the gun and said something about the gun and the election, right?

[00:03:01] Speaker 05:
There certainly isn't a formal offer of proof on that issue, but the employer in this situation is handicapped in several ways.

[00:03:08] Speaker 05:
In an NLRB proceeding, an employer is not permitted discovery, you don't have depositions, you don't have the ability even to require a current employee to answer questions of your counsel to prepare for the hearing.

[00:03:20] Speaker 05:
In this case, the employee had voluntarily made certain statements to a supervisor.

[00:03:25] Speaker 05:
The supervisor testified to those statements.

[00:03:28] Speaker 05:
There was a statement made to the supervisor that was tendered to the court in the supervisor's testimony that the employee was prepared to testify that the gun was in case anyone got crazy.

[00:03:39] Speaker 05:
The only issue that we know of in controversy at the facility at that time was the union election.

[00:03:45] Speaker 05:
It was a closely contested election.

[00:03:47] Speaker 05:
Given the connection between the employee and the union days after the alleged threat is made, he becomes a union agent at that point for a call center later as an observer at the election.

[00:03:59] Speaker 05:
Given that connection between the person who made the threat and the, Mr. Quarles, and the union, given the statement, and it refers to something that he believes may be driving him crazy, there's enough there to bring a witness in to find out if there's more.

[00:04:15] Speaker 05:
Again, was there a formal offer of proof?

[00:04:17] Speaker 05:
No.

[00:04:18] Speaker 05:
But there's many things in the record that point to a concern about whether or not that statement is related to this election.

[00:04:25] Speaker 05:
And we believe there's enough evidence there to warrant enforcing the subpoena.

[00:04:30] Speaker 06:
But what is in the record about what that witness would have testified about?

[00:04:36] Speaker 05:
What's in the record is the testimony of a supervisor to whom that witness had confided previously at work.

[00:04:45] Speaker 05:
That supervisor's testimony goes through the statements made to him.

[00:04:49] Speaker 06:
Just summarize what that supervisor said that this person had told him or her.

[00:04:56] Speaker 05:
That supervisor told him or her that he was aware that Quarles had a gun at work, that he frequently brought that gun to work, that he had brandished it in a break room at one of the three clubs involved here, the Union Street facility, and that a statement was made that he had the gun in place, quote, any fuckers got crazy, close quote.

[00:05:17] Speaker 05:
That was the summary of the testimony of what had been said to the supervisor.

[00:05:20] Speaker 05:
There were also statements made to the court when there was an attempt to subpoena and bring the employee in.

[00:05:25] Speaker 05:
that the employee had expressed fear in the courthouse of the union because of the prior threats and at least in the... Because of what?

[00:05:32] Speaker 06:
That he expressed fear of the union... That's not what I read.

[00:05:36] Speaker 06:
I read him to say that he was scared.

[00:05:38] Speaker 06:
Lots of witnesses are scared to testify or to get involved.

[00:05:43] Speaker 06:
And I didn't read even that representation to be that he was scared of the Union or scared because of some sort of threat.

[00:05:53] Speaker 05:
He's certainly fearful to come in before the proceeding.

[00:05:56] Speaker 05:
The only party to the proceeding besides the NLRB is the Union and Equinox.

[00:06:01] Speaker 05:
He's fearful to come in.

[00:06:03] Speaker 05:
Is there enough there, the question, though, to force us?

[00:06:06] Speaker 01:
Well, I objected to the threats statement because I didn't see anything about a threat to him.

[00:06:13] Speaker 05:
I'm not suggesting that there was an affirmative threat made to the employee should he testify.

[00:06:17] Speaker 05:
If I misspoke in that regard I apologize.

[00:06:20] Speaker 06:
I mean, I've dealt with a lot of witnesses who were scared to come to court because they just didn't want to get in the middle of it.

[00:06:28] Speaker 06:
And they didn't know who was going to be mad at them, but they knew that somebody would likely be mad at them because they're going to testify kind of for one side or the other.

[00:06:38] Speaker 01:
Even if you assume, and Judge Edwards and I are rather familiar with this process,

[00:06:44] Speaker 01:
both having practice in this area at one time.

[00:06:49] Speaker 01:
Even if you assume that the employee was afraid of disputing or fighting with the union, there's still a gap of any proper proof that the observer, whose name I've forgotten, had, when brandishing his fake gun, had said anything that connected his

[00:07:14] Speaker 01:
comment about crazies to people who oppose the union.

[00:07:18] Speaker 05:
Again, our position is that there was enough that was in the record to suggest that it could have been questioned at the stand.

[00:07:24] Speaker 05:
The witness could have been questioned on the stand.

[00:07:26] Speaker 01:
Well, but the question is whether the hearing officer so abused his discretion that he denied an enforcement of subpoena process, which is complicated, when he doesn't have a specific proffer.

[00:07:40] Speaker 05:
Again, there is sufficient information, we believe, through the supervisor's testimony, through the employee's refusal to appear.

[00:07:47] Speaker 01:
We think that is enough to... There's nothing inconsistent about Board law on this question, is there?

[00:07:53] Speaker 05:
There's certainly nothing inconsistent in terms of similar factual situations.

[00:07:58] Speaker 05:
The Board has certainly held there's discretion within a hearing officer as to when to recess a hearing.

[00:08:02] Speaker 05:
The question is whether or not there's sufficient evidence here to justify the decision not to call.

[00:08:07] Speaker 05:
We believe there's not.

[00:08:10] Speaker 01:
What about your first issue?

[00:08:11] Speaker 05:
The first issue concerns whether or not that same individual should be permitted to serve as an observer for a party.

[00:08:18] Speaker 05:
There's no question at the time of service as an observer that an individual represents the party.

[00:08:23] Speaker 01:
There is no question here in the West... Aren't you really swimming upriver now in light of board precedent?

[00:08:29] Speaker 05:
Yes, Judge, I think we're slimming that up somewhat, but the question really becomes the real question here is whether or not when you look at all the facts and what the employees knew, because there isn't any real

[00:08:47] Speaker 05:
dispute about dissemination of the fact that a gun was found in the workplace, the fact that the individual, Mr. Quarles, was walked through the workplace in handcuffs.

[00:08:55] Speaker 05:
No dispute about that.

[00:08:56] Speaker 05:
No dispute.

[00:08:57] Speaker 05:
It was known by a dispositive number of voters.

[00:08:58] Speaker 06:
But the problem for you is that that happened at a different location than the location where he was an observer.

[00:09:04] Speaker 06:
He was an observer at Pine Street.

[00:09:06] Speaker 06:
And this happened at Market Street, right?

[00:09:09] Speaker 05:
You are correct regarding Market and Pine.

[00:09:11] Speaker 05:
However, there was a finding both by the hearing officer and the board acknowledged it as well, that at least four or five employees at Pine Street were aware of that incident as well.

[00:09:20] Speaker 06:
And what's the substantial evidence in support of that when

[00:09:25] Speaker 06:
There was only one Pine Street employee who testified that she was aware of it.

[00:09:32] Speaker 06:
And I think that she said that she Pine Street employee who was aware of it.

[00:09:37] Speaker 06:
So what's the evidence that there were four or five people at Pine Street who were aware of it?

[00:09:42] Speaker 05:
There's also the evidence that other observers who were present in the polling area when there's objection made to Mr. Quarles' presence is there.

[00:09:49] Speaker 05:
You know, again, there is an issue as to dissemination.

[00:09:52] Speaker 05:
The board and the courts have always presumed in a close election that there will be some dissemination in the absence of testimony that there is none.

[00:10:00] Speaker 01:
Again, the question... Well, he was in the boards of law on this.

[00:10:04] Speaker 01:
He's an agent of the union only for purposes of the observer status.

[00:10:10] Speaker 01:
With respect to his other activities, he is a third party.

[00:10:15] Speaker 01:
He's under the third party rules, which are pretty difficult to overturn an election based on that.

[00:10:22] Speaker 05:
Certainly the Westwood standards are an uphill battle for employers or other parties seeking to overturn an election.

[00:10:29] Speaker 05:
However, there is still the question of agency here.

[00:10:32] Speaker 05:
While they're agents for purposes of what occurs during their time as an observer, an observer does not walk into that location without bringing his or her past and her past reputation with them.

[00:10:44] Speaker 05:
By walking in, by being placed in that polling area, by being placed in front of the list of voters that include their home addresses, their telephone numbers, and other information, the union has effectively imbibed that person with additional imprimonitor in front of employees.

[00:11:01] Speaker 01:
The employees see that person, they know that they're checking on them.

[00:11:07] Speaker 05:
They certainly have not found a case that perhaps meet their standard, but they have not said that the issues of prior misconduct or prior status prior to the observer isn't irrelevant.

[00:11:19] Speaker 05:
The board's brief suggests that this isn't a relevant issue.

[00:11:22] Speaker 05:
Whatever may have happened, whatever their status may have been prior to their appointment as an observer, that you don't even look backwards.

[00:11:29] Speaker 05:
That's not a correct statement of the law if you look at the underlying cases.

[00:11:33] Speaker 01:
The board is certainly concerned.

[00:11:34] Speaker 01:
Are they asking the board questions about that?

[00:11:40] Speaker 05:
Again, as to the second issue, we think the most important fact there is that enough employees knew about the prior gun incident, the welding of the gun, the walking through the facility, that at least there were findings on the record by the board that as many as four or five people may have known in the Pine Street facility about the prior incidents.

[00:11:59] Speaker 05:
and that they've at least inferred that there's some degree of dissemination and we believe that adequate in those circumstances to require the board to address either under the party standards or alternatively under the Westwood standards what the meaning is of the prior threats and the prior welding of a gun when an observer is in the voting area.

[00:12:22] Speaker 05:
Again, we think either of those issues are sufficient to overturn the decision below and refuse enforcement.

[00:12:29] Speaker 05:
As to the first issue, the observer's presence within the polling area, that would require a rerun on its face if you grant that issue.

[00:12:37] Speaker 05:
As to the subpoena issue, that would require a remand to the NLRB for further determination as to whether further hearings were necessary.

[00:12:58] Speaker 06:
Good morning, Mr. Kesterly.

[00:12:59] Speaker 04:
Good morning, Your Honor.

[00:13:01] Speaker 04:
And may it please the court?

[00:13:03] Speaker 04:
The credited facts in this case tell a far different story than what the employer has argued.

[00:13:08] Speaker 01:
May I ask a question that may go right to the court?

[00:13:12] Speaker 04:
Yes, Your Honor.

[00:13:13] Speaker 01:
Suppose the observer had been overheard at the time he was in possession or branching the gun.

[00:13:26] Speaker 01:
stating that this is to be used to make sure the election comes out the right way.

[00:13:35] Speaker 01:
Is your entire case different?

[00:13:39] Speaker 04:
Different?

[00:13:40] Speaker 04:
Definitely, yes, your honor.

[00:13:41] Speaker 01:
No, no, different result.

[00:13:43] Speaker 04:
Different result?

[00:13:45] Speaker 04:
I would have to see what the board would say in that situation.

[00:13:47] Speaker 01:
It would depend under... Under your understanding on board law.

[00:13:51] Speaker 01:
I'm not asking you to rule on the case, but wouldn't that

[00:13:55] Speaker 01:
be enough to make it improper.

[00:14:02] Speaker 01:
Let me make it more precise.

[00:14:07] Speaker 01:
The proffer is that the supervisor would testify that when the observer brandished the gun, he said his gun is here to affect the election and to intimidate people who would be opposed to the union.

[00:14:26] Speaker 01:
it would be an abusive discretion not to subpoena, not to enforce the subpoena, to call him.

[00:14:33] Speaker 04:
Well, under the hearing officer's reasoning, Your Honor, the hearing officer would have enforced that subpoena, or the RD would have after, since the primary reason for not doing so was that that connection wasn't there.

[00:14:46] Speaker 06:
But how do we know that he would have, though, because he thought that he didn't have the authority to enforce the subpoena, right?

[00:14:53] Speaker 04:
Well, Your Honor, he said that at the hearing, but that wasn't part of the reasoning after.

[00:14:58] Speaker 04:
So, you know, the hearing officer said that at the hearing that he didn't think he had the authority, but then when he went back to write his decision, that wasn't what he relied on.

[00:15:07] Speaker 04:
And that's not what the RD relied on either in adopting the hearing officer's finding on that point.

[00:15:12] Speaker 06:
Okay, I'm sorry I interrupted Judge Silberman, but I wanted to challenge you on that point.

[00:15:16] Speaker 06:
Go ahead.

[00:15:18] Speaker 01:
I'm asking you what the board's position now is and the appellate process.

[00:15:25] Speaker 01:
If that was the proffer, do you not agree that it would be an abuse of discretion not to seek to enforce the subpoena?

[00:15:38] Speaker 04:
Yes, Your Honor.

[00:15:39] Speaker 04:
I mean, certainly there's no, there's nothing under the hearing officer's reasoning that would speak to that situation otherwise.

[00:15:46] Speaker 01:
Secondly, if there was evidence that the Observer did, in fact, brandish the gun in connection with the election to be, to threaten those who were against the Union, is there any question in your mind that the

[00:16:06] Speaker 01:
a regional director's decision should be overturned if that evidence was there.

[00:16:13] Speaker 04:
If that had been the case, it would require a remand because that does undermine the analysis that the regional director applied.

[00:16:21] Speaker 01:
Well, in this case, it would deny enforcement.

[00:16:26] Speaker 04:
Yes, Your Honor.

[00:16:28] Speaker 01:
Well, and a remand to determine... Well, I don't think in this case we would remand if that evidence was there.

[00:16:35] Speaker 04:
Well, there would need to be a rerun election and the board would have that.

[00:16:38] Speaker 01:
Yes, of course.

[00:16:39] Speaker 01:
Yeah, no, no, no, no, you wouldn't know what or to enforce the subpoena.

[00:16:45] Speaker 01:
You're here.

[00:16:45] Speaker 01:
You're here to enforce your 85 determination.

[00:16:49] Speaker 01:
We would refuse to enforce under those circumstances.

[00:16:51] Speaker 01:
You'd be stuck.

[00:16:54] Speaker 01:
But the remedy for necessarily be remanded all.

[00:16:59] Speaker 01:
No, no, no election.

[00:17:02] Speaker 04:
Well, the bargaining order, okay, the bargaining order wouldn't be enforced, but the hearing officer would need to have another opportunity then to reopen the hearing.

[00:17:10] Speaker 01:
The board's orders are not self enforcing.

[00:17:12] Speaker 01:
You have to come to court.

[00:17:13] Speaker 01:
You would have in those circumstances, we would simply deny enforcement.

[00:17:19] Speaker 01:
That would be the end of the matter.

[00:17:20] Speaker 01:
Now you could file a new the union could file a new petition and a new election.

[00:17:25] Speaker 01:
But in this case... Only after a year, that would have passed.

[00:17:30] Speaker 04:
I'm sorry, Your Honor.

[00:17:31] Speaker 04:
I understood your question as going to if there were some evidence that the employee would testify that there had been a threat like that.

[00:17:40] Speaker 01:
There are two questions.

[00:17:41] Speaker 01:
One was the enforcement of the subpoena.

[00:17:43] Speaker 01:
The second was suppose the evidence is actually in there.

[00:17:45] Speaker 04:
In there, okay.

[00:17:47] Speaker 01:
And if the evidence is in there that an employee was brandishing a gun for the purpose of scaring people who would vote against the union.

[00:17:55] Speaker 01:
It seems to me clear that we would refuse to enforce the order.

[00:18:00] Speaker 04:
Yes, Your Honor.

[00:18:01] Speaker 01:
I mean, I guess there's no real... I don't think that... I can't imagine the board coming out with a conclusion that it would come out with in this case.

[00:18:10] Speaker 01:
So I don't think you're giving away anything.

[00:18:12] Speaker 04:
No, Your Honor.

[00:18:12] Speaker 04:
And also, I mean, the reason I'm hesitating there is that

[00:18:18] Speaker 04:
Under the Westwood standard, if the employee had said that, and there were evidence that that employee never told any other employee, so there was absolutely clearly no dissemination, then I can imagine a situation where the board might say, okay, this is not determinative.

[00:18:35] Speaker 04:
That's possible.

[00:18:38] Speaker 02:
Am I reading the record correctly?

[00:18:40] Speaker 02:
The request for the subpoena was to get what would have been hearsay on hearsay?

[00:18:48] Speaker 02:
Um, I, as I was reading it, someone said that someone said, yes.

[00:18:58] Speaker 02:
Is that what the board, did the board rely on that important?

[00:19:01] Speaker 02:
I mean, not that alone, it seems to me a suspect.

[00:19:04] Speaker 02:
You want a subpoena to get something that someone said that someone said credit in any way.

[00:19:11] Speaker 04:
That's true, your honor.

[00:19:12] Speaker 04:
Although, um,

[00:19:14] Speaker 04:
The, to be fair, the subpoena was also going to whether Mr. Quarles brandished the gun, and that's not, you know... I thought that was conceded.

[00:19:24] Speaker 04:
No, Your Honor, it was not conceded that Mr. Quarles brandished the gun to this other employee.

[00:19:28] Speaker 01:
Actually, I have to consult with my colleague on this.

[00:19:32] Speaker 01:
I don't think that is hearsay.

[00:19:35] Speaker 01:
Well, I don't know.

[00:19:36] Speaker 01:
I couldn't tell from the record whether... If there was testimony that the observer, when he brandished the gun,

[00:19:44] Speaker 01:
stated this is for the purpose of intimidating people who would vote against the union.

[00:19:54] Speaker 01:
That statement comes in not for the truth of the matter asserted, but for its impact on fear.

[00:20:01] Speaker 01:
That's right, Your Honor.

[00:20:02] Speaker 01:
So it really isn't hearsay.

[00:20:03] Speaker 02:
But I thought it was someone who was going to say that I heard someone else say that.

[00:20:09] Speaker 02:
That's hearsay.

[00:20:10] Speaker 02:
Not that that person heard him or herself.

[00:20:13] Speaker 02:
But I can testify that someone else said that.

[00:20:16] Speaker 02:
Is that right?

[00:20:17] Speaker 04:
No, Your Honor.

[00:20:18] Speaker 04:
The subpoena was to the employee who was allegedly threatened or who saw the... Fine.

[00:20:24] Speaker 02:
I just was not clear for me on the record.

[00:20:26] Speaker 04:
Okay.

[00:20:26] Speaker 04:
But to be clear, that connection that we've been discussing between the union and this incident, there's simply no evidence that that occurred.

[00:20:36] Speaker 04:
And no evidence that it occurred during the critical period, if it did.

[00:20:41] Speaker 04:
The employer has said that was four days before the election, but there's simply nothing in the record and nothing in the manager's hearsay that even would place it at that time.

[00:20:51] Speaker 04:
There's no evidence of dissemination.

[00:20:53] Speaker 04:
There's no evidence of Mr. Quarles' union agent status, certainly at that time until he was observer.

[00:21:03] Speaker 04:
So given those circumstances, it seems difficult for the board to have to postpone a hearing for potentially months while getting a subpoena enforced in order to have this employee testify.

[00:21:16] Speaker 01:
You're not taking the position that the brandishing of the gun was protected by the Second Amendment, are you?

[00:21:21] Speaker 04:
No, Your Honor.

[00:21:23] Speaker 06:
I'm a little confused as to your position with respect to the factual finding that four or five people at Pine Street were aware of the alleged, you know, gun brandishing or gun possession.

[00:21:37] Speaker 04:
Yes, Your Honor.

[00:21:38] Speaker 06:
Because you say in the footnote that there's really no evidentiary support for that.

[00:21:43] Speaker 06:
Are you saying that that we should reject that factual finding?

[00:21:49] Speaker 06:
that was adopted by the board or what exactly is your position?

[00:21:54] Speaker 04:
No, Your Honor.

[00:21:55] Speaker 04:
There's two different issues here.

[00:21:58] Speaker 04:
One is how many employees at Pine Street knew that Mr. Quarles knew of Mr. Quarles' incident at Market Street.

[00:22:07] Speaker 04:
They didn't necessarily know he was discharged for it or the details of it, but knew something about something that happened with Quarles at Market Street earlier.

[00:22:15] Speaker 04:
And that is four to five employees, as the hearing officer found.

[00:22:18] Speaker 04:
We, of course, accept that.

[00:22:20] Speaker 04:
The other issue is how many of those employees knew that Mr. Quarles was the union's observer.

[00:22:27] Speaker 04:
There's no evidence of the two Pine Street employees who testified.

[00:22:31] Speaker 04:
Only one testified that she knew who Mr. Quarles was.

[00:22:34] Speaker 04:
The other was not asked whether she knew anything about whether he was the observer at the election.

[00:22:43] Speaker 04:
And Mr. Quarles was only observing for half the session.

[00:22:45] Speaker 04:
So it's, unless all four of those employees who knew about the incident had voted during Mr. Quarles' session, they wouldn't have even had reason to know that he was the observer or associate him with the union in any way.

[00:23:00] Speaker 04:
It's also, you know, it's under the board's finding, it's a bit of a moot point because it doesn't matter if those employees would have associated Mr. Quarles with the union because

[00:23:12] Speaker 04:
the board would not bring in the previous misconduct by Mr. Quarles simply because he was sitting there as the union's observer, absent doing something else at the observer's table.

[00:23:25] Speaker 04:
Well, seeing as the court has no further questions, I request that you enforce the board's order in full.

[00:23:32] Speaker 04:
Thank you.

[00:23:32] Speaker 04:
Thank you.

[00:23:34] Speaker 03:
All right, we'll hear from Mr. Pyle.

[00:23:38] Speaker 03:
Yes, thank you.

[00:23:39] Speaker 03:
Good morning, Your Honors, Hunter Pyle for the Union.

[00:23:42] Speaker 03:
I have nothing to add to the presentation that's already been made here this morning, but I wanted to answer any questions that the panel might have, if any.

[00:23:52] Speaker 03:
We, of course, agree that there's been no proffer as to two issues with regard to Mr. Quarles.

[00:23:59] Speaker 03:
One, there's been absolutely no connection between the alleged brandishing incident and the election.

[00:24:05] Speaker 03:
And the second is there's been no proof that Mr. Quarles was acting as an agent for the union in any way at that time.

[00:24:11] Speaker 03:
And there can be no proof because he wasn't.

[00:24:14] Speaker 06:
So.

[00:24:15] Speaker 06:
Do you think it's a good idea to have a person?

[00:24:19] Speaker 06:
as an observer who was just fired for, you know, bringing a gun to work, even if it's an airsoft gun?

[00:24:28] Speaker 03:
No, Your Honor, not a good idea.

[00:24:29] Speaker 03:
Definitely not a good idea.

[00:24:31] Speaker 03:
But what the Union knew at the time that it made its decision to include Mr. Quarles as an observer was what it knew, and it made the decision, I think, that the question is, did that impact this election in such a way that it should be overturned?

[00:24:46] Speaker 03:
And our answer is that it did not.

[00:24:49] Speaker 03:
It could not have under an objective standard.

[00:24:53] Speaker 01:
I don't have any questions.

[00:24:55] Speaker 01:
Thank you very much.

[00:25:05] Speaker 05:
Just a few brief points.

[00:25:07] Speaker 05:
Initially, there were some questions asked about what's known and what's known in the record.

[00:25:13] Speaker 05:
Mr. Quarles also testified at this hearing.

[00:25:15] Speaker 05:
He admitted that he had brought that gun to work.

[00:25:17] Speaker 05:
He admitted that he had shown that gun to at least one employee in the weekend or so before the election.

[00:25:23] Speaker 05:
I believe that citation is found at Joint Appendix 201 and 202.

[00:25:27] Speaker 05:
There is a picture of the gun in the record as well at Joint Appendix 210.

[00:25:30] Speaker 05:
It's a realistic gun.

[00:25:31] Speaker 01:
Was he asked what he said?

[00:25:37] Speaker 05:
I don't recall specifically what he answered in response to that question or whether the question was asked.

[00:25:44] Speaker 05:
Judge, I apologize.

[00:25:46] Speaker 01:
It's a big mess, isn't it?

[00:25:49] Speaker 01:
Was that your, were you handling that case?

[00:25:51] Speaker 05:
I was not handling the case, nor was my firm at the time of the record below.

[00:25:56] Speaker 05:
Judge, there is, however, again, I think the employer is in a very difficult position here.

[00:26:01] Speaker 05:
We asked the questions about was there a proffer or an offer of proof.

[00:26:05] Speaker 05:
Certainly the employer was able to say what they knew.

[00:26:08] Speaker 05:
They knew what had been said to the supervisor.

[00:26:10] Speaker 05:
They have no ability and they have to affirmatively tell the employee under Johnny's poultry, you don't have to answer our questions.

[00:26:17] Speaker 05:
You don't have to cooperate with us prior to the hearing.

[00:26:19] Speaker 05:
You only have to come in if subpoenaed and talk there.

[00:26:22] Speaker 05:
The employer got out as much of the information as it has.

[00:26:25] Speaker 05:
This is a highly disputed election.

[00:26:27] Speaker 05:
A comment that is at least is proffered and in the record through the supervisor is that the guns there in case people get crazy.

[00:26:35] Speaker 05:
Again, the craziness going on at that time is the election.

[00:26:38] Speaker 05:
The individuals closely associated with the union within two days.

[00:26:41] Speaker 01:
What was the date of that comment?

[00:26:44] Speaker 05:
The date of the comment is difficult in the record.

[00:26:48] Speaker 05:
We know the employee reports it four days before the election.

[00:26:51] Speaker 01:
Roughly, what are we talking about?

[00:26:53] Speaker 05:
The 19th of June, I believe, is the date of the election, so it's roughly the 15th of the June.

[00:26:58] Speaker 01:
In what year?

[00:26:59] Speaker 05:
Of 2015.

[00:26:59] Speaker 01:
Well, it could have been politics.

[00:27:04] Speaker 05:
I suppose it could have been politics, but there's no evidence that that was being discussed at the facility at the time.

[00:27:09] Speaker 01:
There's no evidence of anything.

[00:27:11] Speaker 05:
And if we had the employee there and the subpoena had been enforced, we would know the surrounding context of the remarks.

[00:27:17] Speaker 06:
What was the standard that the hearing officer was supposed to employ in deciding whether to subpoena?

[00:27:28] Speaker 05:
The hearing officer should have determined whether or not the potential probative value of the evidence outweighed the delay.

[00:27:34] Speaker 05:
The hearing officer didn't go through that analysis at the hearing, as was pointed out to counsel for the board, originally focused on the lack of authority.

[00:27:43] Speaker 05:
You do see in the award an alternative argument given, but again, it seems to focus on whether or not the employee was an agent of the union at the time and not on the issue of whether or not the statement was tied to the NLRB election.

[00:27:56] Speaker 05:
Only later did those arguments seem to creep into the award.

[00:27:59] Speaker 05:
The hearing officer certainly thought it was a different issue.

[00:28:02] Speaker 05:
Again, I understand how the board backs into the issue, but coming out post-hoc to suggest that we're going to focus on the irrelevance of the testimony we think is an error in this case.

[00:28:13] Speaker 05:
Thank you.

[00:28:14] Speaker 05:
We'll take the matter under submission.