[00:00:02] Speaker 02: Case number 17-1130 at L, MD Miller Trucking and Topsoil Inc. [00:00:08] Speaker 02: Petitioner versus National Labor Relations Board. [00:00:10] Speaker 02: Mr. Light for the petitioner, Ms. [00:00:12] Speaker 00: Roger Pasky for the respondent. [00:00:18] Speaker 00: Good morning. [00:00:18] Speaker 00: May it please the court? [00:00:19] Speaker 00: My name is Michael Lead. [00:00:20] Speaker 00: I represent MD Miller Trucking and Topsoil Company. [00:00:24] Speaker 01: Good morning. [00:00:29] Speaker 00: As far back as 1941, the U.S. [00:00:31] Speaker 00: Supreme Court noted that the concept of mitigation of damages in national labor relation support cases involves a healthy policy of promoting production and employment. [00:00:43] Speaker 00: And indeed, one of the cases cited by counsel for the general counsel here is a ninth circuit case, the Kawasaki Motors Manufacturing Corporation case, [00:00:51] Speaker 00: which points out that discriminatory must show a sincere inclination to work and be self-supporting, consistent again with the healthy policy of promoting production and employment. [00:01:04] Speaker 00: Our position in this case is the evidence didn't support the administrative law judge's finding that Mr. McCallum actually made a sincere and diligent effort to try to find alternate employment. [00:01:16] Speaker 00: As the court knows, we've got basically four [00:01:20] Speaker 00: Seeming job applications in a more than two year period. [00:01:24] Speaker 00: He testified to potentially 20 contacts and then [00:01:29] Speaker 00: said he applied for eighty or ninety other jobs, but he had no record of whatever. [00:01:36] Speaker 01: Are you saying that we have to overturn the credibility findings of the administrative law judge? [00:01:42] Speaker 00: Yes, Judge, that's what I'm saying. [00:01:44] Speaker 00: And I realize that's a high burden for me to persuade this court, but I would point out that even the National Labor Relations Board occasionally, not in this case, but occasionally overturns credibility findings as well. [00:01:56] Speaker 00: And I think when you look at all the evidence [00:01:58] Speaker 00: in the case, that's not a very big leap. [00:02:04] Speaker 00: I was starting to say that he was admonished by at least two entities, the Union and the National, or pardon me, the [00:02:15] Speaker 00: National Labor Relations Board Compliance Officer and the Illinois Unemployment Commission to keep a record of his job search. [00:02:23] Speaker 00: He, as the court knows, he talked to his union representative apparently on almost a weekly basis. [00:02:30] Speaker 00: We don't have testimony that he was told to keep a record of a job search, but the minimal amount of effort it would have taken to jot down a note that on September 5th I applied on Craigslist to the following job. [00:02:45] Speaker 00: I think is very telling. [00:02:49] Speaker 02: The other thing I guess I'd like... His testimony is that he, every couple of weeks, did internet searches. [00:02:57] Speaker 00: Yes. [00:02:58] Speaker 02: So if we don't set aside the credibility finding, do you lose? [00:03:04] Speaker 02: Is that enough? [00:03:06] Speaker 00: I still don't think that's enough, Judge. [00:03:09] Speaker 00: I don't think... [00:03:11] Speaker 00: If you count the number of days were over 700 days in the back pay period, even if we believe he made 80 to 90 job applications during that period, I still don't think that shows a diligent job search. [00:03:25] Speaker 00: If I was trying to get work. [00:03:28] Speaker 00: I'd try a little harder than that if I was out of work. [00:03:30] Speaker 01: But that's not the standard, sir. [00:03:32] Speaker 01: The standard doesn't require him to be successful. [00:03:36] Speaker 00: I understand that, Judge Wilkins. [00:03:37] Speaker 01: It doesn't even really say diligent. [00:03:39] Speaker 01: It says good faith, right? [00:03:41] Speaker 00: Well, I think that there is certainly an element of diligence encompassed here, if indeed the public policy that has been enunciated by the Supreme Court is to promote employment. [00:03:54] Speaker 00: that the man had an obligation to work reasonably hard to try to find a job. [00:04:00] Speaker 01: Speaking to his union representative every week or two weeks, you don't think that that's... Are you saying that we shouldn't credit that testimony? [00:04:11] Speaker 00: Well, Your Honor, I'm not necessarily saying that. [00:04:15] Speaker 00: In fact, I think that that sort of helps if the Court recalls the testimony of Mr. Ellsbury. [00:04:23] Speaker 00: primarily these conversations were about, am I going to get back to MD Miller as a result of this grievance settlement? [00:04:30] Speaker 00: That's certainly a reasonable question to ask in the first month after the grievance award, second month, third month. [00:04:37] Speaker 00: At some point, I would think that the conversation would be turning to, hey, look, you're my union. [00:04:42] Speaker 00: I'm paying dues. [00:04:44] Speaker 00: Are there jobs that you can get me to? [00:04:45] Speaker 01: That's not what the ALJ found. [00:04:48] Speaker 01: The ALJ found that he spoke to him repeatedly about referrals. [00:04:55] Speaker 01: And then if you look at the testimony of Mr. Ellersby, he testified that he was reluctant to refer him for jobs because he didn't want him to be referred and then quit the job because he would go back to MD Miller. [00:05:13] Speaker 01: So you can't blame Mr. McCallum for that, right? [00:05:21] Speaker 00: Judge, I certainly am not trying to blame Mr. McCallum or for that matter Mr. Ellsbury, but when you couple that with the fact that we had the testimony from Prairie Materials that they routinely contacted the union to find truck drivers. [00:05:38] Speaker 00: and the fact that the Illinois unemployment commission also listed numerous job openings for truck drivers or helpers during the period of time. [00:05:48] Speaker 00: I think that there's a limited weight that should have been given to that testimony. [00:05:55] Speaker 00: I don't certainly suggest that there was never any discussion of trying to find work, but [00:06:03] Speaker 00: with testimony from third party uninterested witnesses about the number of job openings that there were. [00:06:10] Speaker 00: I just find it difficult to believe that Mr. Ellsbury at some point didn't say, you know, we've got, ultimately he found a pipeline job for him transporting men around the job site. [00:06:27] Speaker 00: But if indeed there were [00:06:31] Speaker 00: nearly a thousand jobs in trucking filled during this back pay period as found by the administrative law judge. [00:06:36] Speaker 00: There clearly was work and the the witnesses that we put on at the back pay hearing were all signatories to Local 179. [00:06:47] Speaker 00: So it it's it's my opinion that our position that there was not a diligent job search [00:06:57] Speaker 00: The other thing, and this has been thoroughly briefed, and I don't want to waste the court's time, I would like to point out that part of the reason for the administrative law judge's finding was that Mr. McCallum, in fact, collected unemployment. [00:07:14] Speaker 00: In Illinois, you can collect unemployment for 26 weeks in the usual case. [00:07:18] Speaker 00: So assuming he got it in 2013, 2014, or part of 2015, that only accounts for half the year. [00:07:25] Speaker 00: And even then, the board law that talks about receipt of unemployment benefits being prima facie evidence of the job search is simply what it says, it's prima facie, but it's not an unrebuttable presumption. [00:07:39] Speaker 00: And I think that the judge should have taken into account that fact, and I think this court can as well. [00:07:47] Speaker 00: And the other thing, as the court knows from our briefs, is the effort that Mr. McCallum had to put forth to collect those unemployment benefits was minimal. [00:07:57] Speaker 00: He phoned an automated telephone number twice a week, and I'm not sure exactly what he did, pushed a button or something like that to say he was available for work. [00:08:07] Speaker 00: Being available for work, I suggest, is different than actively looking for work. [00:08:13] Speaker 01: I'm trying to understand this argument. [00:08:15] Speaker 01: Are you saying that administrative law judge put more weight on that than he was legally permitted to? [00:08:22] Speaker 00: Well, almost, Judge, I guess what I'm saying is in relying on the receipt of unemployment benefits as prima facie evidence of the job search that under the Illinois regime, it really isn't. [00:08:36] Speaker 00: It's not much other than making a phone call every two weeks, which is about what the job search was like, making a computer search or application every so often, if we credit everything Mr. McCallum said. [00:08:53] Speaker 00: I don't really have anything else to say to the court. [00:08:57] Speaker 00: No one's ever accused me of talking too short a time. [00:09:02] Speaker 00: If there are any other questions, I'd be happy to address them. [00:09:04] Speaker 00: Otherwise, I'd be happy to yield to my colleague. [00:09:07] Speaker 01: All right. [00:09:08] Speaker 01: We can reserve your time for rebuttal. [00:09:10] Speaker 00: Thank you. [00:09:16] Speaker 03: Good morning, Your Honor. [00:09:18] Speaker 03: May it please the court? [00:09:20] Speaker 03: My name is Meelakshmi Rajapaksa. [00:09:22] Speaker 03: I'm counsel for the National Labor Relations Board. [00:09:25] Speaker 03: I do appreciate what my colleague just said about the Supreme Court's decision in Phelps Dodge. [00:09:31] Speaker 03: But I would say in general, the company's presentation loses sight of or ignores several basic principles. [00:09:39] Speaker 03: As the victim of an unfair labor practice that resulted in loss of employment, Mr. McCallum is presumptively entitled to some back pay. [00:09:47] Speaker 03: So the company's position that it owes nothing [00:09:50] Speaker 03: in this case is really quite startling. [00:09:53] Speaker 03: The company has the burden to rebut the presumption that some back pay is owed. [00:09:58] Speaker 03: And where it's asserting a job search defense, as in this case, its specific burden is to show that the discriminatory did not make an honest good faith effort to find interim employment. [00:10:11] Speaker 03: during the back pay period. [00:10:12] Speaker 03: And I have to disagree with my colleagues that there is not substantial evidence in this case to support the finding that the company did not meet its burden. [00:10:22] Speaker 03: Mr. McCallum credibly testified that he searched for work on a biweekly basis, looking at multiple sources, walking into establishments on his own where there were no ads, looking online. [00:10:35] Speaker 03: And he also had at least some documentation [00:10:39] Speaker 02: He's looking, he's sort of a, he testifies he's looking every other week on internet sites or driving around a particular sites. [00:10:51] Speaker 02: But there are two things he didn't do. [00:10:54] Speaker 02: One was look at the website or list maintained by the state of Illinois as part of its unemployment. [00:11:08] Speaker 02: It's help for people who are unemployed, who are getting unemployment compensation. [00:11:13] Speaker 02: And the other is while he's clearly engaged with the union in some respects, my understanding is he doesn't really seek help from their out of work referral list. [00:11:30] Speaker 02: And your response to that, quite rightly, is to say as a general matter, the worker doesn't have to do everything. [00:11:37] Speaker 02: everything possible, but those seem like they would be pretty obvious alternatives for someone going to the state and going to his union for their lists of jobs. [00:11:50] Speaker 03: Right. [00:11:50] Speaker 03: The board and the case law does not require the discriminatory to use any particular methods. [00:11:59] Speaker 03: What the board does is it looks at what the employee did do. [00:12:02] Speaker 03: and considers whether that reflects an honest good faith effort. [00:12:05] Speaker 03: So an exhaustive search, yes, would have included the various other outlets that you're talking about, but he didn't have to use any particular avenue in order to preserve his right to back pay. [00:12:20] Speaker 02: Am I wrong that those would be particularly obvious and particularly promising? [00:12:27] Speaker 02: Going to the list of jobs maintained by his union for people who need that kind of work, [00:12:37] Speaker 02: Seems like a more promising avenue than going on monster.com or whatever. [00:12:42] Speaker 03: Well, correctly or incorrectly, Mr. McCallum reasonably believed that by keeping in touch with the union representative that he knew, he was relaying his interest in work on an ongoing basis. [00:12:55] Speaker 03: And he did communicate with him regularly. [00:12:58] Speaker 03: That testimony is corroborated by the union. [00:13:01] Speaker 02: So help me out, just what he did or didn't do with the union. [00:13:04] Speaker 02: He is engaged with the union, but on this work referral list, your response in your brief is not that he did that, it's that he didn't have to do that. [00:13:15] Speaker 02: So what is he doing with the union and what is he not doing with the union? [00:13:19] Speaker 03: Well, he didn't go through the formalities of getting on the list, and there appears to have been some sort of misunderstanding on his side as to what he needed to do, because his testimony is he believed that he had done enough by simply talking to the union representative. [00:13:34] Speaker 03: And in fact, in 2015, he got a job from the union, proving that what he did was enough in terms of the union, because it was always understood by Mr. Ellsbury that Mr. McCallum [00:13:46] Speaker 03: wanted work and was looking for work. [00:13:48] Speaker 03: It was actually Mr. Ellsbury's choice to withhold certain opportunities from Mr. McCallum because he thought he would get employment with the company after winning a grievance, after winning a board case, and so on. [00:14:02] Speaker 03: I will also mention in terms of the Illinois state resources through the unemployment office, [00:14:08] Speaker 03: There's a, I believe it's the Second Circuit case that's cited in our brief Atlantic Veal in which the employee did not avail himself of that unemployment agency's services and yet he still was found to have done enough. [00:14:23] Speaker 02: Does the record have any evidence one way or the other about how comprehensive that Illinois database is? [00:14:32] Speaker 03: It doesn't, because I don't think Mr. Leeds' evidence about the resources of the unemployment office, the listing of jobs, I don't think that that actually was admitted into the record, but I may be mistaken about that. [00:14:51] Speaker 03: In any event, as the board's brief points out, [00:14:56] Speaker 03: The Illinois unemployment benefits law requires an active search for work, and that is extremely clear from the literature that the unemployment agency provides and puts online, and that is all cited in the brief. [00:15:13] Speaker 03: I will say in terms of the telephone system that Mr. Lead refers to, [00:15:19] Speaker 03: In terms, it may seem like a minor effort to press buttons on a phone, but the pressing of buttons reflect answers to certification questions. [00:15:30] Speaker 03: And so the employees asked to certify not only availability for work, but also the fact that they have done an active job search in the prior two weeks before the certification. [00:15:42] Speaker 03: And the state punishes instances of fraud [00:15:45] Speaker 03: So this is not a minor or negligible effort that Mr. McCallum put forward and the receipt of unemployment benefits does support the board's finding that Mr. McCallum made an honest good faith effort to actively search for work during the back pay period. [00:16:04] Speaker 03: I will also say that Mr. Lee just told the court that his client does not believe and he does not believe that Mr. McCallum made a reasonably diligent search for work. [00:16:16] Speaker 03: I will just remind the court that the standard is whether the fact finder found Mr. McCallum believable and he did. [00:16:25] Speaker 03: The fact finder credited Mr. McCallum with an honest good faith effort over the course of the entire back pay period [00:16:32] Speaker 03: He based that decision in part on corroborating documentary evidence testimony from the union representative and Mr. McCallum's specific recollection of over 20 job contacts. [00:16:48] Speaker 03: So I would submit to this court. [00:16:49] Speaker 03: that the evidence is substantial to support the board's decision. [00:16:53] Speaker 03: The company has not shown that the credibility determinations are patently insupportable, which is the standard in this court, and therefore we do ask for enforcement of the board's compliance decision, the award of back pay. [00:17:07] Speaker 03: In addition, and this is not an issue that the company is contesting, [00:17:10] Speaker 03: The board is also entitled to enforcement of its prior order, having to do with the remedy for the unfair labor practices. [00:17:17] Speaker 03: And because it's an uncontested order, the board is entitled to some reinforcement. [00:17:22] Speaker 03: Thank you. [00:17:23] Speaker 01: Thank you. [00:17:28] Speaker 01: Any rebuttal? [00:17:29] Speaker 01: Mr. Lee? [00:17:30] Speaker 00: Very briefly, Your Honor. [00:17:36] Speaker 00: Maybe we're making too much of this unemployment issue, but the fact of the matter is that Mr. McCallum would only have to justify or explain his job search if he was asked. [00:17:50] Speaker 00: I think the evidence shows in this case that certainly he never testified that anyone asked. [00:17:56] Speaker 00: And I suppose if he had been asked, his evidence of what he actually did would have been just as sketchy as it was with the Labor Board. [00:18:06] Speaker 00: As to the standard, again, I've already recognized that in asking this court to overturn the credibility finding, I'm fighting an uphill battle. [00:18:15] Speaker 00: But I do think that the court has to look at all the evidence, including the evidence that detracts from the evidence in his favor. [00:18:22] Speaker 00: And then finally, I didn't really tell the court what relief I wanted. [00:18:26] Speaker 00: We would ask the court to refuse to enforce the ALJ and NLRB's decision. [00:18:33] Speaker 00: And with that regard, it's not only the net back pay, but the various fund contributions and interest that were ordered as well. [00:18:40] Speaker 00: Thank you. [00:18:41] Speaker 01: Thank you. [00:18:42] Speaker 01: We'll take the case under advisement.