[00:00:35] Speaker 01: Good morning. [00:00:36] Speaker 01: May it please the Court, my name is David Broderick. [00:00:38] Speaker 01: I'm here on behalf of Petitioner H&M International Transportation Inc. [00:00:43] Speaker 01: Today, H&M seeks reversal of the ALJ decision, which was affirmed by the NLRB, that stated that H&M discharged four employees in retaliation for protected concerted activity. [00:00:55] Speaker 01: I will address three topics in my oral argument today. [00:00:58] Speaker 01: First, the ALJ, we applied the [00:01:01] Speaker 01: federal rule of evidence 901 standard for authentication and admission of an audio recording, which prejudiced the company. [00:01:10] Speaker 01: Second, this entire matter was improperly instituted because General Counsel Leif Salomon of the NLRB lacked the authority to issue the complaint. [00:01:19] Speaker 01: Finally, even if the subsequently appointed general counsel ratified the complaint, the ratification process was procedurally defective. [00:01:28] Speaker 01: As a result, the ALJ's decision was not supported by substantial evidence and should be vacated. [00:01:34] Speaker 02: With respect to the evidentiary issue, can I get you to start with your second argument? [00:01:40] Speaker 01: Yes, sir. [00:01:40] Speaker 02: If you don't mind, and respond to the board's argument that we don't have jurisdiction to consider that issue because it wasn't included in your exceptions. [00:01:51] Speaker 01: There are two issues with that argument by the board. [00:01:54] Speaker 01: The first issue is that the board's rules and regulations [00:01:59] Speaker 01: include the answer as part of the record. [00:02:02] Speaker 02: Right, but the board points out that its rules require that objections be included in your exceptions. [00:02:11] Speaker 01: That is true that there is a rule that states that. [00:02:15] Speaker 02: And they cite our case, our decision in Parkwood Development, which they cite and you didn't respond to, which says that [00:02:29] Speaker 02: that the board rules require that it be raised in the exceptions for jurisdictional purposes. [00:02:33] Speaker 01: There is also Supreme Court precedent as well as DC Circuit precedent and Wolkey and Romero and Ambersand that say that you can bring objections to the board in one of two ways. [00:02:45] Speaker 01: The first is, as Your Honor just mentioned, in an exceptions brief. [00:02:49] Speaker 01: And the second way to do so is through a motion for reconsideration. [00:02:52] Speaker 02: But the cases you cite for motion for reconsideration, I believe, are cases where the issue arose in the board's decision itself. [00:03:00] Speaker 02: So your only way to raise it was in a motion for reconsideration. [00:03:05] Speaker 02: But in a case like this, where the issue is antecedent to the board's decision, it has to be raised in an exception. [00:03:14] Speaker 01: I don't believe that those were at issue in the board's decision. [00:03:17] Speaker 01: I believe that they were not raised at all, actually, in those cases. [00:03:22] Speaker 01: And the court in both of those cases said, [00:03:25] Speaker 01: You should have filed it in the exceptions, but in the alternative, you also didn't file it as a motion for reconsideration. [00:03:31] Speaker 01: So in there, they were stating the proper standard, which we followed here. [00:03:37] Speaker 03: They do have a regulation which says you have to raise it in the exceptions. [00:03:43] Speaker 03: I agree that... So in order for you to prevail, don't we have to strike down that regulation as applied to this case? [00:03:51] Speaker 01: I think you'd have to read it in concert with the requirement that the answer in which we stated our argument is part of the record and also the idea of the intervailing case law in Wolke and Romero and in Ambersand in which the courts have stated that you can also file a motion for reconsideration. [00:04:10] Speaker 03: You've stated this in your answer [00:04:12] Speaker 03: before you raised this in your answer before the ALJ yes sir not the board correct and you raised it on rehearing with the board correct your honor you know that's a little bit like [00:04:24] Speaker 03: trying to go to the Supreme Court saying, well, I raised something in district court, and I raised it seeking in bank, but I didn't raise it before the Court of Appeals. [00:04:36] Speaker 03: It just doesn't make any sense. [00:04:37] Speaker 03: The board is the decision maker, and you just presented this to some functionary below them, and then you presented it to them after they made their decision. [00:04:47] Speaker 01: The the board also require provides for extraordinary circumstances. [00:04:55] Speaker 01: And in this case, there was again, not only did we cited in our answer, but on motion for reconsideration at that point. [00:05:04] Speaker 01: This circuit and the Ninth Circuit had ruled on General Counsel Solomon's authority at that time. [00:05:12] Speaker 01: So we were raising new law to the board. [00:05:14] Speaker 03: We have cases suggesting that intervening precedents don't amount to extraordinary circumstances. [00:05:21] Speaker 03: And in any event, this argument was clear enough to you that you could and did raise it before the ALJ. [00:05:28] Speaker 01: We did raise it there and we believe that it was part of the record. [00:05:33] Speaker 01: So we didn't believe that it was unnecessary to raise again before the board. [00:05:37] Speaker 01: And we believe that we appropriately filed the motion for reconsideration to the board and allowed them to consider it. [00:05:45] Speaker 01: The other, there's case law, Supreme Court case law that also states that the purposes of exceptions and objections is to put the board on notice of potential arguments, and we believe that in filing our answer, we appropriately put the board on notice of one potential argument. [00:06:05] Speaker 01: For the board to argue that they were not on notice, [00:06:09] Speaker 01: is really a misrepresentation because in the interim General Counsel Griffin did ratify before the board decision. [00:06:16] Speaker 01: So they were certainly unnoticeable. [00:06:18] Speaker 03: I assume litigants all the time make arguments to an ALJ and then narrow their case as they go up the chain and make some but not all of those arguments to the board. [00:06:33] Speaker 03: Yes. [00:06:33] Speaker 03: So the fact that you press this before the ALJ and then didn't press it before the board, if anything, suggests exactly the opposite, which is that you were giving it up. [00:06:43] Speaker 01: We weren't giving it up. [00:06:44] Speaker 01: In fact, we were preserving the argument for a later argument when we did so. [00:06:49] Speaker 01: And we believe that the precedent allowed us to do so. [00:06:53] Speaker 01: If I could return to the evidentiary issue, with respect to the evidentiary issue, Rule 901 and its interpreting case law requires a detailed review of an audio recording and its integrity prior to admission. [00:07:08] Speaker 01: That did not happen here. [00:07:10] Speaker 01: It said Judge Landau's admission and significant reliance on the audio recording without exploring the necessary factors for authentication is reversible error. [00:07:20] Speaker 01: The relevant case law in this circuit requires an absence of bad faith and alteration and strict proof about the circumstances in which a recording was made or the chain of custody. [00:07:31] Speaker 01: However, the board in this case urged more of a lenient standard in which a participant in the recording could testify as to the voices on the recording and the circumstances by which the recording took place. [00:07:45] Speaker 03: You're basing your argument on Rule 901, but all that rule says is that authentication requires sufficient evidence to support a finding that the item is what the proponent claims it is. [00:08:01] Speaker 03: Yes, sir. [00:08:01] Speaker 03: It's pretty open-ended, seems to give the trier of fact a lot of discretion. [00:08:07] Speaker 03: But then the rule goes on to talk about authenticating voices, and it says one sufficient way to do that is you have an opinion identifying a person's voice based on hearing the voice at any time under circumstances that connected it to the alleged speaker. [00:08:29] Speaker 03: And here you have the two main protagonists, I think Nunnery and Nealon on both sides of this dispute, [00:08:37] Speaker 03: give testimony that, yeah, that's what was said. [00:08:40] Speaker 01: And the case is both on the board side and the circuit side, Your Honor. [00:08:46] Speaker 01: All have the following elements, which I believe are important here. [00:08:51] Speaker 01: The person who actually recorded the tape was present to testify. [00:08:57] Speaker 01: That was not present here. [00:08:59] Speaker 01: The second element is the idea that the other side, meaning our side, the company side, made no arguments with respect to the integrity of the tape. [00:09:11] Speaker 01: And we did. [00:09:11] Speaker 01: This was a 60-minute [00:09:14] Speaker 01: audio recording, which was admitted to by the board, and it was altered down to 26 minutes. [00:09:19] Speaker 03: You argued that portions of the tape were unintelligible, and you argued that portions of the tape weren't transmitted. [00:09:31] Speaker 03: But there was no dispute that that long block quote that's in the briefs was an accurate transcription of what was said. [00:09:41] Speaker 01: There were 98 instances where the audio recording was inaudible and there was also testimony by Mr. Nealon who was the proponent of the audio recording that the recording he provided to the board was 60 minutes long and the recording that was played at [00:09:58] Speaker 01: at hearing was 26 minutes long. [00:10:00] Speaker 03: So what our argument was was that there was testimony that all of that other stuff involved a separate disciplinary matter with, I forget if it's Nealon or Nunnery, but the union official of those two. [00:10:13] Speaker 01: But I think that raises the specter as to the authenticity of the tape. [00:10:19] Speaker 01: And the problem was that we didn't have the recorder, the person who recorded the tape, to come in and testify as to why that audio recording was cut down, what else was potentially cut out of that recording. [00:10:35] Speaker 01: For example, [00:10:36] Speaker 01: In the portions that were inaudible, we have no idea why they were inaudible, whether he shut the tape off, whether he moved away for a particular reason. [00:10:45] Speaker 01: And part of the testimony by Mr. Nunnery from the company was that in one section of the audio recording in which it was inaudible, [00:10:56] Speaker 01: Mr. Neelan telegraphed the idea that these employees were gonna engage in a slowdown, an intentional slowdown on the next day. [00:11:03] Speaker 01: So really both the alteration of the recording and also the inaudible nature of the recording raised the specter that the judge should have required more into the integrity of the audio recording. [00:11:22] Speaker 01: As I just indicated, not only was the integrity of the audio recording important, but it ultimately led to credibility findings with respect to [00:11:39] Speaker 01: The company's witnesses and those credibility findings were formed the basis for the determination that that the discriminate ease did not engage in intentional slowdown on on the next day. [00:11:53] Speaker 01: If you were to take the tape out or the audio recording out of. [00:11:58] Speaker 01: out of that hearing, the credibility determinations largely go away in an important way. [00:12:05] Speaker 01: And if those credibility determinations come out, what we're left with is findings by the judge that the discriminatees were in fact working slower on the day of the alleged slowdown. [00:12:17] Speaker 01: And additionally, there are [00:12:20] Speaker 01: There are portions of the judge's decision in which she indicates that Mr. Nealon on behalf of the union was not credible and that was independent and outside of the audio recording. [00:12:33] Speaker 01: I see I have three minutes left. [00:12:34] Speaker 01: I'd like to reserve the remaining time for rebuttal. [00:12:46] Speaker 00: Morning, and may it please the court. [00:12:48] Speaker 00: My name is Rebecca Johnston. [00:12:49] Speaker 00: I'm here on behalf of the National Labor Relations Board. [00:12:53] Speaker 00: This case is about the unlawful terminations of four long-term employees for engaging in protected and concerted activity. [00:13:01] Speaker 00: H&M has greatly narrowed the issues on appeal to just two. [00:13:04] Speaker 00: Neither of these preclude the court from enforcing the board's order in full. [00:13:10] Speaker 00: H&M makes the claim that this complaint is invalid because it was issued [00:13:16] Speaker 00: during a time when Leif Salomon was serving in violation of the FEBRA. [00:13:21] Speaker 00: The board's position is that this claim is jurisdictionally barred. [00:13:25] Speaker 00: This court does not have jurisdiction to hear the claim. [00:13:28] Speaker 00: Under Section 10E of the National Labor Relations Act, no objection not urged before the board shall be urged before the court absent extraordinary circumstances. [00:13:40] Speaker 00: H&M has presented no extraordinary circumstances here that would warrant this court to consider this claim. [00:13:46] Speaker 00: In argument, H&M poses the board's procedures as an either-or proposition, that they can either file exceptions or file a motion for reconsideration. [00:13:58] Speaker 00: That's a misreading of the board's regulations. [00:14:01] Speaker 00: Under Rule 102.46 B2 and G, a party needs to raise in its exceptions before the board an issue, or it is thereafter waived. [00:14:12] Speaker 00: The board's procedure for post-decisional motions, which is 102.48, is for extraordinary circumstances and reserved for instances where, for example, the board's Sue Espante issues ruled on an issue that the parties didn't have a chance to brief. [00:14:33] Speaker 00: As Judge Casas pointed out, typically intervening case law is not considered an extraordinary circumstance. [00:14:40] Speaker 00: And here, H&M can't argue that it is. [00:14:43] Speaker 00: It was aware of this claim. [00:14:45] Speaker 00: It put it in its answer. [00:14:46] Speaker 00: And thereafter, seemed to have abandoned it. [00:14:53] Speaker 00: Even if this court believes that it does have jurisdiction to consider the claim, [00:14:58] Speaker 00: A properly appointed general counsel, Richard Griffin, ratified the complaint on February 5th, 2016. [00:15:06] Speaker 03: As this court points out... Why wasn't the ratification untimely? [00:15:11] Speaker 00: H&M's argument that the ratification was untimely is based on a misunderstanding of the board's... Sorry, the court's... [00:15:23] Speaker 00: Statute of limitations, excuse me, in the NLRA. [00:15:27] Speaker 00: The statute of limitations is from the time of the unfair labor practice to the time for filing a charge. [00:15:33] Speaker 00: There is no statute of limitations for filing a complaint. [00:15:38] Speaker 00: So Richard Griffin did have authority to issue the complaint at that time. [00:15:43] Speaker 00: So their argument just misunderstands the board's statute of limitations. [00:15:48] Speaker 00: As this court pointed out in Southwest General... Sorry, just the mechanics of this. [00:15:54] Speaker 03: It's the employee who files the charge? [00:16:00] Speaker 00: It's the charging party. [00:16:01] Speaker 00: It can be a union, an employee, or an employer. [00:16:04] Speaker 03: But what's the difference between the charge and the complaint? [00:16:09] Speaker 00: One of those three individuals files the charge. [00:16:14] Speaker 00: The National Labor Relations Board investigates the charge. [00:16:19] Speaker 00: If it finds that it has a merit, then the National Labor Relations Board issues a complaint. [00:16:25] Speaker 00: It's a general counsel or he can delegate his authority to the regional director. [00:16:33] Speaker 02: Do you want to say something about the audio tape? [00:16:37] Speaker 00: Sure. [00:16:38] Speaker 00: There are three reasons that this court can uphold a decision notwithstanding the judge's admission of the audio recording. [00:16:45] Speaker 00: A close reading of the opinion shows that the administrative law judge did not rely on the recording in reaching her decision that the H&M's affirmative defense, its proffered reason for firing these employees, was pretextual. [00:17:03] Speaker 00: She did so, she looked at the version of events that H&M claimed that the employees were traveling three to five miles per hour, idling, taking 30 minutes to move a car off a train, and she found that that was wholly without merit. [00:17:21] Speaker 00: She did so by discrediting the company witnesses. [00:17:25] Speaker 00: She credited current employees testimony who testified that the reason things were going slower that day [00:17:32] Speaker 00: was because of crew configuration. [00:17:36] Speaker 00: She found there was disparate treatment. [00:17:38] Speaker 00: The strain had been released late numerous times, and no one had ever been disciplined or discharged. [00:17:44] Speaker 00: And the company also failed to follow its progressive discipline. [00:17:48] Speaker 00: So if you look at the opinion, when she discredits their affirmative defense, she does not use the audio recording. [00:17:57] Speaker 00: Even if this court were to find that the audio recording were important to the decision, the board's footnote, number one, states that it was not prejudicial. [00:18:06] Speaker 00: Admission was not prejudicial because the judge also relied on testimony from witnesses who had not heard the tape, from Nunnery, who admitted to making the words that he spoke on the tape. [00:18:22] Speaker 00: And so the admission of the audio recording was not prejudicial. [00:18:31] Speaker 00: We ask for enforcement. [00:18:32] Speaker 02: We have no other questions. [00:18:34] Speaker 02: Thank you. [00:18:36] Speaker 02: Thank you. [00:18:38] Speaker 02: Mr. Broderick, you've successfully preserved three minutes. [00:18:42] Speaker 01: Thank you, Your Honors. [00:18:44] Speaker 01: And I'll be brief. [00:18:45] Speaker 01: I just want to touch upon two issues that the Board Council raised. [00:18:50] Speaker 01: The entirety of the [00:18:54] Speaker 01: While the judge does state that she relied upon other testimony, the entirety of H&M's defense in this case about the unlawful slowdown stemmed from the audio recording and the credibility determinations made by the judge on the audio recording. [00:19:13] Speaker 01: That's the first point on the second point with respect to the ratification. [00:19:16] Speaker 01: We do acknowledge that and we submit that there is no issue with respect to the 6 month statute of limitations. [00:19:23] Speaker 01: However, the the boards. [00:19:29] Speaker 01: The board's ability to ratify is not without limit. [00:19:33] Speaker 01: It must follow its own rules and regulations, even in the face of a valid ratification. [00:19:38] Speaker 01: And if your honors would submit, there are other procedural safeguards in the rules and regulations that were not followed by General Counsel Griffin here. [00:19:47] Speaker 01: Namely, a complaint that's issued must be issued 14 days before a hearing. [00:19:55] Speaker 01: That didn't take place here. [00:19:57] Speaker 01: The hearing had been closed, so while there is no statute of limitations, and we do acknowledge that, the hearing by ALJ Landau had been closed for a year and a half by the time General Counsel Griffin allegedly ratified the decision of General Counsel Solomon. [00:20:15] Speaker 01: the ratification does not revert back to the original date. [00:20:20] Speaker 01: It's a new ratification. [00:20:22] Speaker 01: So if the court buys the argument, what was the appropriate procedural context here is that H&M should have been provided a full complaint and an opportunity for a hearing on the new complaint. [00:20:41] Speaker 01: So the only thing that survives here is [00:20:45] Speaker 01: an ALJ decision, which is based on an unauthorized complaint from Mr. Solomon. [00:20:52] Speaker 01: G.C. [00:20:53] Speaker 01: Griffin never went back to the judge and said, wait, hold on, your decision was based on an unauthorized complaint, so reopen the record, and I'm gonna send you the ratified complaint. [00:21:07] Speaker 01: He never did that. [00:21:08] Speaker 01: So not only did [00:21:11] Speaker 01: Mr. Griffin never allow H&M the opportunity to respond. [00:21:16] Speaker 01: He also never followed the appropriate safeguards for ratification. [00:21:22] Speaker 01: Any further questions from your honors? [00:21:24] Speaker 01: Thank you. [00:21:25] Speaker 02: Thanks for your time. [00:21:26] Speaker 02: Thank you very much.