[00:00:02] Speaker 04: Case number 17, national 1150NL, Jack Mar Food Service Distribution Petitioner versus National Labor Relations Board. [00:00:10] Speaker 04: Mr. Lenin for the petitioner, Ms. [00:00:11] Speaker 04: Collins for the respondent, and Ms. [00:00:13] Speaker 04: Sanchez for the interviewee. [00:00:53] Speaker 02: Good morning. [00:00:53] Speaker 02: Good morning. [00:00:57] Speaker 02: May it please the court and Paul Lynn from Errant Fox for petitioner Jack Marr food service distribution. [00:01:02] Speaker 02: At the outset, I'd like to make one thing clear about what's at issue here. [00:01:06] Speaker 02: Jack Marr is not at this time asking the court to overturn the election results outright, but whether we are asking for the hearing [00:01:13] Speaker 02: that we should have received, except for the Labor Board having rushed to judgment and disposing of Jack Maher's election objections. [00:01:22] Speaker 02: There's two other points that are important to be, that should be borne in mind. [00:01:30] Speaker 02: I've been considering the issues here. [00:01:31] Speaker 02: First, this election involved a smaller employee unit. [00:01:35] Speaker 02: And in smaller units, any misconduct and then the resulting discussion and dissemination of what happens has a greater impact because there's a smaller number of employees involved. [00:01:47] Speaker 02: And second here, it's important to bear in mind that the election result here actually [00:01:52] Speaker 02: was very close. [00:01:53] Speaker 02: If there had been a shift of three votes the other way, there would have been a different result because there would have been a tie vote and the union would have lost. [00:02:02] Speaker 02: Now here, Jack Marr made four objections that are at issue. [00:02:05] Speaker 02: Three of them had some relationship to each other because they involved different types of threats and coercion. [00:02:13] Speaker 02: to employees. [00:02:14] Speaker 02: The first one, which is the major one, concerned whether employees were signing union cards to get the election voluntarily. [00:02:23] Speaker 01: You're using the plural there. [00:02:29] Speaker 01: Wasn't there just evidence of one employee who had the threat on signing? [00:02:33] Speaker 02: There was one employee that had a direct threat. [00:02:36] Speaker 02: Then, Your Honor, the second one, he, in his affidavit, had said under the circumstances, he did not feel he gave it voluntarily. [00:02:44] Speaker 02: But you're correct, there was not an indication of a direct threat there. [00:02:47] Speaker 03: Both of those were pre-petition conduct? [00:02:50] Speaker 03: They were, Your Honor. [00:02:51] Speaker 03: Which places a heightened burden on you, right? [00:02:55] Speaker 03: I don't believe it places a heightened burden. [00:02:57] Speaker 03: Well, you have to show that it was more egregious or [00:03:01] Speaker 03: More directly related to union conduct, right? [00:03:06] Speaker 02: No, I believe the standard is the same. [00:03:09] Speaker 02: I have not seen anything in the case law that treated the pre-petition conduct to a higher burden. [00:03:13] Speaker 02: There is the issue about which the board has raised about whether it can be considered at all under the ideal electric rule. [00:03:20] Speaker 02: which I'd like to address that. [00:03:21] Speaker 02: I can do that now if the court would prefer. [00:03:24] Speaker 02: Now the board here incorrectly argues essentially that ideal electric is a bright line rule and that therefore nothing that happened before the union filed the election petition could be considered. [00:03:37] Speaker 02: It is, in fact, not a Brightline rule. [00:03:40] Speaker 02: The board has actually not applied it that way. [00:03:43] Speaker 02: And the thing I would point out, although several circuit courts have considered the ideal electric rule, this circuit, in fact, has not. [00:03:50] Speaker 02: There's only two cases that we located where there was some reference or cite to it, almost in passing, but the court did not address the contours or whether it's a proper rule. [00:04:00] Speaker 02: Now here, the board, as we pointed out in our briefs, has actually not applied this as a bright line rule. [00:04:08] Speaker 02: They have actually looked where there were several cases where there was pre-petition conduct specifically involving the solicitation of union cards and considered that as something that could, in fact, overturn an election in those cases. [00:04:22] Speaker 02: One thing I would like to especially point out is that the chair of the NLRB did a dissent. [00:04:28] Speaker 02: This was a split decision. [00:04:30] Speaker 02: And he, on this issue about the threats, whether pre-petition conduct could be considered, pointed out, in his words, consistently, the board has looked beyond ideal electric and considered misconduct that involves solicitation of union cards. [00:04:47] Speaker 02: Now here, [00:04:50] Speaker 01: Did he cite any cases where they had looked at this sort of pre-petition conduct? [00:04:57] Speaker 01: I know he said that there was a history or a precedence on that. [00:05:01] Speaker 01: Yes. [00:05:01] Speaker 01: Did he exercise cases? [00:05:03] Speaker 02: He did. [00:05:03] Speaker 02: He cited all of them, the Lion's Restaurant case, which is the big one, Gibson's Discount Center. [00:05:09] Speaker 02: Okay, thank you. [00:05:10] Speaker 02: And also Royal Packing, Your Honor. [00:05:12] Speaker 02: And then the board's majority, it actually did not give a, there was actually not a reasoned explanation for their departure not following those cases and instead applying a bright line rule. [00:05:24] Speaker 02: All the board majority said is this case is clearly distinguishable from the situations, you know, in which we departed from ideal electric, but they did not explain why. [00:05:33] Speaker 02: And here, before this Court, the Board just says this doesn't fit the quote-unquote unusual circumstances, but then doesn't define really what those are. [00:05:42] Speaker 02: So this is a rule that, you know, as has been implied, has some arbitrariness to it. [00:05:47] Speaker 02: And the Board's even indicated in the Willis-Shaw frozen food case that we also cited, too, that it believes it can consider any pre-petition conduct [00:05:56] Speaker 02: that affected the results and says that as long as doing so would basically protect the basic values of the act. [00:06:04] Speaker 02: So the board kind of applies a we know it when we see it standard, which is kind of vague and nebulous here. [00:06:10] Speaker 02: But really, I mean, all this court would really need to do is look at, as the chair had pointed out in his dissent, how the board had consistently gone beyond ideal electric when there had been alleged misconduct involving the solicitation of cards. [00:06:25] Speaker 02: The next issue I wanted to be sure to address is the question of agency, because this is also an important issue in this case, particularly with the employee who threatened the probationary employee, you know, who told him he has basically two choices. [00:06:41] Speaker 02: He approached him three times, and the third time told him, okay, as I see it, you have two choices. [00:06:45] Speaker 02: You can either continue, you can either sign the union card or you can refuse to do so, and I'll tell, you know, he identified their manager that you're not a good worker. [00:06:55] Speaker 01: He was going to tell Jesus. [00:07:00] Speaker 01: His name was Jesus. [00:07:01] Speaker 02: His first name was Jesus. [00:07:03] Speaker 02: Yes, he was their manager. [00:07:05] Speaker 02: So he signed it as a result. [00:07:08] Speaker 02: Now the question is, would he be considered a union agent? [00:07:11] Speaker 02: And here the board, they erroneously or abuse its discretion depending on what standard applies here. [00:07:16] Speaker 02: denied a hearing and actually said that there was no evidence in the board's view supporting agency. [00:07:24] Speaker 02: That is incorrect. [00:07:25] Speaker 02: It really fails to look at the whole record and draw necessary inferences. [00:07:28] Speaker 02: What would you say is the evidence of agency? [00:07:31] Speaker 02: In that particular instance, Your Honor? [00:07:34] Speaker 02: Yeah. [00:07:34] Speaker 02: Yeah, there's a couple ways. [00:07:35] Speaker 02: A couple things. [00:07:37] Speaker 02: Because agency can be shown as actual agency. [00:07:39] Speaker 02: You know, someone's authorized. [00:07:40] Speaker 01: Tell me what can. [00:07:41] Speaker 01: Tell me what the evidence is that you would rely on. [00:07:43] Speaker 01: Yeah. [00:07:44] Speaker 02: There's evidence of apparent agency, I think, when you look at things as a whole. [00:07:48] Speaker 02: Usually what I, most reasonable people, when someone is approaching them, especially multiple times, asking you to sign a union card, [00:07:55] Speaker 02: you would probably tend to view them as being an agent of the union in some way. [00:08:03] Speaker 02: That would be good enough. [00:08:04] Speaker 02: That would be a parent agency. [00:08:05] Speaker 02: And the cases do talk about if someone is viewed in the eyes of the employee as being a representative of the union, they can be considered an agent. [00:08:14] Speaker 02: And then there's also, which the board and this court has recognized too, a status of special agency that could apply in some cases when someone is soliciting union cards here. [00:08:25] Speaker 02: And in this case, there's actually more evidence here. [00:08:29] Speaker 02: And this is something that was before the board and the chair in his dissent did note this, that Jack Maher actually had not allowed access to any of the union representatives to its property. [00:08:41] Speaker 02: And that does raise a question, at least a factual question on the chair's view that warranted a hearing to explore that further. [00:08:49] Speaker 02: Because if someone, obviously if someone was getting union cards, it's not usually something that someone, you know, generates on their own. [00:08:55] Speaker 02: It's not like leaflets. [00:08:56] Speaker 02: They usually got them from the union directly and were soliciting one of the union's knowledge and probably consent and authorization. [00:09:03] Speaker 02: And so if there's not the union having access, [00:09:07] Speaker 02: that further suggests that somehow, if Jack Marge had an employee who was going around soliciting or engaging in these activities, that they were an agent. [00:09:17] Speaker 02: So this is an issue. [00:09:18] Speaker 02: There's a couple ways, as I mentioned, that someone could be considered an agent here, and this is something, again, that really warranted a hearing to flesh this out further. [00:09:32] Speaker 02: I wanted to reserve some time for rebuttal, so I think I will stop there. [00:09:47] Speaker 00: May it please the court. [00:09:48] Speaker 00: Good morning. [00:09:49] Speaker 00: Valerie Collins for the board. [00:09:51] Speaker 00: I want to start by emphasizing what the board did not do. [00:09:54] Speaker 00: The board absolutely did not require the company to prove objectionable conduct. [00:10:00] Speaker 00: What it did was it assumed the truth of what the company proffered in its proffer of evidence and simply concluded that that failed to rise to the level of establishing a prima facie case of objectionable evidence. [00:10:15] Speaker 00: And I think that [00:10:16] Speaker 01: The chairman thought it did, didn't he? [00:10:19] Speaker 01: I'm sorry? [00:10:20] Speaker 01: The chairman of the board thought it did. [00:10:22] Speaker 00: Yes. [00:10:23] Speaker 01: And cited some history as to where he says the board had in the past treated the evidence differently than what the majority is here. [00:10:36] Speaker 01: Is that not correct? [00:10:37] Speaker 01: Didn't he? [00:10:38] Speaker 00: I want to make sure I'm addressing your question. [00:10:41] Speaker 00: Are you talking about when Member Miskemerer is addressing ID Electric? [00:10:46] Speaker 00: Yeah. [00:10:46] Speaker 00: In those exceptions? [00:10:47] Speaker 00: Yeah. [00:10:47] Speaker 00: He did. [00:10:48] Speaker 00: So it was his opinion, not the majority, that this required a hearing. [00:10:53] Speaker 01: Did the majority deal with his proposition there? [00:10:58] Speaker 00: The majority's conclusion is that this case, in agreement with the RD, is nothing like the exceptions that have been established for ideal electric. [00:11:08] Speaker 00: Ideal electric is a long-standing, judicially approved rule. [00:11:12] Speaker 01: Tell me what the board, what we find in the record that the board says about that. [00:11:18] Speaker 00: The board found that there's no exception that applies. [00:11:22] Speaker 00: So ideal electric applies. [00:11:24] Speaker 00: There was nothing about the circumstances. [00:11:29] Speaker 01: what the chairman raised in his dissent about the exception, did they? [00:11:33] Speaker 00: The board does not go, the dissent is certainly more lengthy than the majority decision. [00:11:39] Speaker 00: Also before the court is the decision of the RD, which that's what the board was agreeing with. [00:11:45] Speaker 00: The regional director does discuss why this case is nothing like Lyons, which is the most applicable, if there was any exception that was going to apply, that's what it would be because it involved a threat. [00:11:57] Speaker 00: in the language of that decision alone, kind of emphasizes that this is extraordinary. [00:12:04] Speaker 00: It was a highly unusual circumstances. [00:12:07] Speaker 00: All of the cases in which they established exceptions to iD Electric emphasize that there's something about the pre-petition behavior that really had the ability to carry on and to potentially taint the election. [00:12:20] Speaker 00: And so those circumstances are highly unusual. [00:12:22] Speaker 00: For example, the company in its reply brief mentions [00:12:26] Speaker 00: Willis, frozen foods. [00:12:28] Speaker 00: That was a case in which somebody was stabbed. [00:12:30] Speaker 00: So of course, I mean, that's outrageous. [00:12:33] Speaker 00: And so of course, people are going to remember that, whether it's pre-petition or post-petition, and it had the impact to kind of taint the election. [00:12:41] Speaker 00: Here, what they're alleging is a threat from someone we don't know if he's an agent of the union at all. [00:12:49] Speaker 00: But I don't think we even need to go there, because ideal electric applies. [00:12:53] Speaker 01: Assume for a moment you get over the agency. [00:12:57] Speaker 01: Take it on that assumption and tell me where we go from there. [00:13:01] Speaker 00: Assume, I'm not sure I understand. [00:13:04] Speaker 00: Assume agency is applied. [00:13:07] Speaker 00: Okay, so even as going to agencies, so the court would first have to conclude that ideal electric does not apply here, and then it would have to go through the agency analysis, and assuming that agency applies, it would apply the general test of whether the behavior had the tendency to coerce or impact employee-free choice. [00:13:29] Speaker 01: It doesn't, doesn't a credible threat to [00:13:32] Speaker 01: causes firing rise to that level of being something that would be coercive. [00:13:38] Speaker 00: the company's proffer does not raise anything that would suggest that that would impact the election. [00:13:44] Speaker 00: There wasn't even an allegation that anyone else knew about this. [00:13:49] Speaker 00: And so to kind of translate one threat from Carlos, whose last name is even mentioned, to Mr. Chavez, and saying that that was significant enough to throw an entire election and require a rerun election, that simply doesn't meet the standard. [00:14:04] Speaker 00: So even if you assume agency, [00:14:06] Speaker 00: they still were not able to proffer facts, proffer evidence that would establish a prima facie case of objectionable conduct if credited. [00:14:17] Speaker 00: So in the same way, even if, so if the court does [00:14:22] Speaker 00: conclude that ideal electric doesn't apply here, which I think it clearly does, and agency status is not established, which it is not, an alternative would be the board's holding that it failed to follow or fail to establish a Westwood factors, which is a third party. [00:14:41] Speaker 00: standard for objectionable conduct. [00:14:44] Speaker 00: And that is, excuse me, that the conduct at issue was so aggravated to create a general atmosphere of fear and reprisal, rendering a free election impossible. [00:14:57] Speaker 00: And for the same reasons that the company failed to proffer facts to establish a party objectionable conduct, obviously the third party standard is much, [00:15:08] Speaker 00: as much higher, and it certainly did not render an election impossible. [00:15:15] Speaker 00: I do want to just very briefly talk about the agency status, the small point on the facts that are in the record that would establish agency. [00:15:24] Speaker 00: And again, this is if the court rejects ideal electric. [00:15:28] Speaker 00: There is nothing in the record that establishes agency here. [00:15:32] Speaker 00: And there is no case that holds that an employee giving a union authorization card alone [00:15:38] Speaker 00: just that, establishes an agency status. [00:15:42] Speaker 00: For example, in the reply brief, in the Davlin case, the company cites Davlin for the position that union authorization card is enough. [00:15:53] Speaker 00: However, it leaves out some relatively significant language in that case. [00:15:57] Speaker 00: That case did not say that an authorization card itself is enough. [00:16:02] Speaker 00: An authorization card [00:16:03] Speaker 00: plus the person is making promises of a waiver of initiation fees. [00:16:10] Speaker 00: And that kind of go, that's a huge detail, right? [00:16:13] Speaker 00: So it wasn't just the authorization card. [00:16:16] Speaker 00: Having an authorization card and saying, I have an authorization card, you want to see it and sign it, does not establish agency status. [00:16:23] Speaker 00: I see that my time is running short. [00:16:24] Speaker 00: Unless the court has any questions, we appreciate the opportunity for oral argument. [00:16:29] Speaker 01: Thank you. [00:16:34] Speaker 01: That's a good thing you're presenting. [00:16:46] Speaker 05: May it please the court? [00:16:47] Speaker 05: Good morning, Your Honors. [00:16:49] Speaker 05: Renee Sanchez for the Intervener Union. [00:16:51] Speaker 05: The union wholeheartedly agrees with the NLRB's presentation here this morning and would only add that the delay caused by the employer's refusal to recognize and bargain with the union has caused grave harm to employee-free choice. [00:17:08] Speaker 05: The union was certified close to two years ago. [00:17:11] Speaker 05: The employees chose Local 630 as their exclusive bargaining representative. [00:17:17] Speaker 05: The vote was 15 yes, 9 no. [00:17:22] Speaker 05: And two years later, they are without the protections and benefits of a collective bargaining agreement. [00:17:30] Speaker 05: Your Honors, Jack Mar employees have waited almost two years to be vindicated. [00:17:35] Speaker 05: Their free choice has been [00:17:37] Speaker 05: and the NLRA itself have been frustrated and the union respectfully requests that you enforce the board's order in all respects. [00:17:49] Speaker 03: Thank you. [00:17:53] Speaker 03: How much time is. [00:17:57] Speaker 02: Okay. [00:17:59] Speaker 02: Thank you. [00:17:59] Speaker 02: Just a couple brief points with respect to the cases that consider pre petition conduct beyond in other words beyond ideal electric. [00:18:09] Speaker 02: The board has argued incorrectly that those don't apply because this case doesn't involve exactly the same facts. [00:18:15] Speaker 02: I mean, that's hair splitting. [00:18:16] Speaker 02: It really ignores the general principle and the fact that, as the chair noted, the board has consistently considered, you know, pre-petition conduct when there was misconduct with union cards. [00:18:26] Speaker 02: And on the agency issue, as this court has recognized, ordinarily that is a fact-bound determination that does require a hearing. [00:18:34] Speaker 02: So that's why we believe we have made a sufficient showing here and have talked about the fact that it's on our record. [00:18:42] Speaker 02: that warrants a hearing to flesh out these issues. [00:18:45] Speaker 02: And among them is the amount of dissemination of the threat that had happened, because the employees do talk, this was a small unit. [00:18:52] Speaker 02: And of course, the employer is very limited, has limited time and access to people to try to put its evidence before the board. [00:19:00] Speaker 02: That's why, as this court has recognized too, usually in terms of on agency issues, you have to get information from the union. [00:19:06] Speaker 02: The only way to get that is through the discovery of the hearing process. [00:19:09] Speaker 02: And finally, on the delay issue, that's Jack Mar did have the right to pursue this process and really has no control over how long the board takes on things too. [00:19:20] Speaker 02: So unless the court has any questions, I'll submit. [00:19:23] Speaker 03: Thank you very much. [00:19:24] Speaker 02: Thank you. [00:19:25] Speaker 02: The case is submitted.