[00:00:04] Speaker 02:
Mr. Baskin for the petitioner.

[00:00:12] Speaker 02:
Mr. E. Wessek for the respondent.

[00:00:46] Speaker 02:
Well, we've lost a lot of the audience, but we're here.

[00:00:48] Speaker 01:
Thank you, Your Honor.

[00:00:51] Speaker 01:
Maurice Baskin, representing the petitioner, Arden.

[00:00:55] Speaker 01:
And the first issue in this labor law case is about the following simple greeting.

[00:01:02] Speaker 01:
How are things going?

[00:01:05] Speaker 01:
This is one of the most common greetings in the English language, but the National Labor Relations Board held, for the first time ever, we believe, and I'm always cautious about saying that, about 80 years of precedent.

[00:01:16] Speaker 01:
But we haven't found another case like it where the board has said that phrase, how are things going, is a solicitation, an unlawful solicitation of grievances.

[00:01:25] Speaker 01:
Neither has the board.

[00:01:26] Speaker 01:
They certainly did not cite one.

[00:01:28] Speaker 01:
The ALJ cited the closest case to this and said best plumbing, in which the phrase used was what's going on, was not a solicitation.

[00:01:39] Speaker 01:
The board did not address best plumbing, did not address the ALJ ruling on that fact.

[00:01:46] Speaker 01:
Instead, the board said, well, the ALJ did not follow this test that the board had created in the Maple Grove case for unlawful solicitation.

[00:01:55] Speaker 01:
But Maple Grove said nothing about what actually constitutes a solicitation.

[00:02:00] Speaker 02:
In Maple Grove, there was a very obvious, I'm sorry.

[00:02:02] Speaker 02:
Let me call your attention to the transcript, because I specifically looked this up this morning.

[00:02:08] Speaker 02:
And one of the two employees who was most active in the unionization, I don't remember which one it is, but on page JA98, she testified that the CEO

[00:02:25] Speaker 02:
She was asked, now, do you recall if there was any discussion about the union?

[00:02:28] Speaker 02:
She said, he asked.

[00:02:30] Speaker 02:
He just said, I hear that some of us is trying to form a union.

[00:02:36] Speaker 02:
And I said, I don't want to talk about that.

[00:02:38] Speaker 02:
And then he just said, that must mean yes.

[00:02:41] Speaker 02:
And we ended the conversation.

[00:02:42] Speaker 02:
He says, on page JA 190,

[00:02:47] Speaker 02:
I didn't ask her about the union.

[00:02:51] Speaker 02:
I made a statement at the end of the conversation that I had heard rumors that there's rumors about the union.

[00:02:57] Speaker 02:
And then she responded that she didn't want to talk about that.

[00:03:01] Speaker 02:
So he even admits that he asked her about the union.

[00:03:06] Speaker 01:
He asked her about the union after the initial greeting.

[00:03:08] Speaker 01:
What's important about what you just described, the conflict there, is that the judge credited President Mettler's version of the events.

[00:03:16] Speaker 01:
that the statement, how are things going, came first.

[00:03:20] Speaker 01:
It's a greeting.

[00:03:21] Speaker 01:
In the board's brief and in the union's brief, they try to reverse the order and say, oh, well, he brought up the union first and only then said, how are things going?

[00:03:29] Speaker 01:
But that's not what the judge credited, and that's what the board is bound by.

[00:03:33] Speaker 01:
The board did not disagree with the judge on that.

[00:03:36] Speaker 01:
And as argued.

[00:03:36] Speaker 02:
Well, if he'd stopped at how are things going, it would have made a difference.

[00:03:41] Speaker 02:
So the order, I don't think,

[00:03:43] Speaker 01:
Well, I would submit that the only solicitation part of this is the how are things going.

[00:03:50] Speaker 01:
Then she opens up.

[00:03:51] Speaker 01:
She has a lot on her mind.

[00:03:52] Speaker 01:
She had already made a complaint.

[00:03:54] Speaker 01:
So that's another issue.

[00:03:55] Speaker 01:
How can it be a solicitation when she's already made the public complaint?

[00:03:59] Speaker 01:
And only at the end does he say the phrase about something about the union.

[00:04:05] Speaker 01:
No further discussion.

[00:04:06] Speaker 01:
The conversation ends.

[00:04:07] Speaker 01:
So that's not part of the solicitation.

[00:04:11] Speaker 01:
The only possible claim of solicitation is that how are things going is somehow solicitation more than a greeting, which is what it really is.

[00:04:20] Speaker 03:
But there's a factual context here.

[00:04:22] Speaker 03:
We have the chief operations officer who does not visit this facility every day showing up during the most active time of the organizing campaign and seeking out somebody who he understands has some concerns and in the same conversation in which he's asked her and said, I hear there's some organizing.

[00:04:48] Speaker 03:
in that context asks for how things are going.

[00:04:52] Speaker 03:
Tell me why you think the exact sequence within this conversation is dispositive.

[00:04:57] Speaker 01:
Well, let's take a starting point.

[00:04:59] Speaker 01:
Management in a union organizing campaign is allowed to talk to its employees as long as they don't interfere with their rights, as long as they don't solicit and promise to remedy a grievance.

[00:05:10] Speaker 01:
So it is entirely understandable

[00:05:13] Speaker 01:
In fact, that's what management is supposed to do.

[00:05:14] Speaker 01:
Employees are unhappy.

[00:05:15] Speaker 01:
You're supposed to talk to them.

[00:05:17] Speaker 01:
Just don't do the prohibited thing.

[00:05:19] Speaker 01:
So if he went to talk to someone who had publicly complained already and tried to engage her about the union discussion, there's nothing at all wrong with that.

[00:05:28] Speaker 01:
There's no allegation that there's anything wrong with it.

[00:05:31] Speaker 01:
And there's a lot of issues in this case in which the general counsel filed a complaint that said one thing, and then the board tried to turn it around and say, well, that wasn't pled properly, but we're going to find you guilty of something else.

[00:05:42] Speaker 01:
On this one, the sole allegation is that the president of the company impliedly promised a remedy by soliciting a grievance.

[00:05:54] Speaker 01:
So if there's no solicitation, he hasn't done anything wrong.

[00:05:57] Speaker 01:
And that's why the order is so important.

[00:06:00] Speaker 01:
The only thing that is arguably a solicitation, the only thing that's even a question is, how are things going?

[00:06:07] Speaker 01:
And so it's like saying, someone says, how are you?

[00:06:10] Speaker 01:
When I say, how are you, I'm not asking for your medical history.

[00:06:12] Speaker 01:
In common English parlance, how are things going is not a question, or it's a rhetorical question at most.

[00:06:21] Speaker 01:
It is a greeting.

[00:06:22] Speaker 01:
It's a way to start the conversation, which is why it is important as to what the sequence is.

[00:06:27] Speaker 01:
If it was in reverse order, then if he had said there's something going on here, there's something going on about the union, and how are things going relating to that, one could make some sort of argument.

[00:06:40] Speaker 01:
against our interests, but that's not what's been credited.

[00:06:43] Speaker 03:
It does seem like it puts the employer in a little bit of a restrained position because the management should be offering to fix things.

[00:06:56] Speaker 03:
But under Maple Grove, it sounds like the board views, it's not even the solicitation that's key, it's the promise to remedy.

[00:07:07] Speaker 03:
concerns and so which is I think why we were probing a little bit on the order of you know why you thought that was important because it seems like in this particular window of time coming in from headquarters and saying we've got this we'll go look into it is actually something that is not permitted under the labor law do you disagree

[00:07:34] Speaker 01:
I'll strongly disagree.

[00:07:35] Speaker 01:
First, since it's been mentioned a couple of times that he's not a regular visitor, actually the testimony is that he visits the facility several times a month, and that he was there to deal with a successful survey, which is undisputed testimony, and that he spoke to her as someone... But he visited this facility several times a month?

[00:07:53] Speaker 03:
I didn't see that.

[00:07:53] Speaker 03:
Do you have a site for that?

[00:07:54] Speaker 01:
Yes, because I looked it up myself this morning.

[00:07:58] Speaker 01:
It's in the testimony of Mr. I have to give it to you on the rebuttal.

[00:08:05] Speaker 01:
It's in the testimony of Mr. Mettler, President Mettler, and there is an exhibit actually introduced surrounding that testimony, which gives his schedule.

[00:08:16] Speaker 03:
Yes, yes.

[00:08:18] Speaker 01:
Then there was a discussion about a gap after June 25th because he had a medical procedure.

[00:08:24] Speaker 01:
It was the only reason he missed the time afterwards.

[00:08:27] Speaker 01:
So yes, that is the testimony.

[00:08:29] Speaker 01:
He's not, although in the end, it doesn't really matter.

[00:08:33] Speaker 01:
Any management official could have had this conversation, whether present or not.

[00:08:36] Speaker 01:
It's not something that the board relied on as the basis.

[00:08:40] Speaker 01:
The board relied on, and you are bound and you should make your ruling based on what the board considered and decided, not on what general counsel is arguing, and not on the order that they would wish it happened in.

[00:08:54] Speaker 01:
But what the board said is,

[00:08:56] Speaker 01:
He started with, how are things going?

[00:09:00] Speaker 01:
And then she answered, raising something she had already said.

[00:09:04] Speaker 01:
And then at the end, he said something about a union.

[00:09:07] Speaker 01:
And she said, I'm not talking about that.

[00:09:08] Speaker 01:
The conversation ended, which implies that she wasn't talking about that beforehand.

[00:09:12] Speaker 01:
It makes a pretty big difference about this order.

[00:09:15] Speaker 01:
But it also makes words matter.

[00:09:17] Speaker 01:
And the board has precedent about what constitutes solicitation.

[00:09:21] Speaker 01:
Maple Grove is a two-step test.

[00:09:23] Speaker 01:
As you alluded, they are concerned about the promise to remedy.

[00:09:26] Speaker 01:
They failed on that, too.

[00:09:28] Speaker 01:
He didn't say he was going to fix anything.

[00:09:30] Speaker 01:
He said he was going to look into it, which the judge and the dissent both said, well, that's just a routine like, what else is he supposed to do?

[00:09:37] Speaker 01:
Stand still.

[00:09:37] Speaker 01:
The board's answer was, well, he should have said thank you for the information.

[00:09:41] Speaker 01:
Well, how would anyone know that that's the magic formula?

[00:09:45] Speaker 01:
Because that sounds like you're exchanging a benefit of some kind by taking that information.

[00:09:51] Speaker 01:
The reality is none of this happens if the board does not exceed its previous precedence and declare a commonplace reading to be a solicitation.

[00:10:02] Speaker 01:
I would add that the, as I think I've already said,

[00:10:05] Speaker 01:
This woman had previously made the same open complaint.

[00:10:09] Speaker 01:
It was not a secret.

[00:10:10] Speaker 01:
It was not something that could be solicited.

[00:10:12] Speaker 01:
The same greeting was made to two other employees who were not in the bargaining unit, which establishes past practice, which, as the board has said in other contexts, is supposed to be important.

[00:10:24] Speaker 01:
So, for all of these reasons, and I'll just throw in one other item, which is, at nothing else, this makes a de minimis case of solicitation.

[00:10:32] Speaker 01:
And the board studiously ignored the de minimis doctrine as to a number of the complaints alleged in this situation, the board's own precedent of yellow

[00:10:43] Speaker 01:
Transport has said that when there's no harm done in an 8-A-1 situation, and clearly this was the lead union organizer or one of them, and not only was she not intimidated or coerced in any way, they filed the petition right after this conversation.

[00:11:00] Speaker 03:
Can you focus on your request for a remand in light of Boeing?

[00:11:04] Speaker 01:
Certainly.

[00:11:06] Speaker 01:
The Boeing case came out, we know the administrative law judge,

[00:11:09] Speaker 01:
cited repeatedly the Lutheran heritage village case and doctrine, and Boeing overruled Lutheran heritage.

[00:11:19] Speaker 03:
Not in full, though.

[00:11:21] Speaker 03:
As I understand it, it spoke to that first factor of the three.

[00:11:24] Speaker 01:
That's correct.

[00:11:25] Speaker 01:
But to parse out what parts of the judge's decision remained valid under Boeing should be the job of the board.

[00:11:36] Speaker 01:
that should be your job under the food store case of the Supreme Court to send it back to the board, at least on those particular allegations that it has to do with the one about instructing employees to stay in their work areas and the directive about not wearing union scrubs primarily.

[00:11:54] Speaker 03:
But directing employees not to wear union scrubs is

[00:11:58] Speaker 03:
on its face union-related or suppressing union expression, and therefore it's not facially neutral under Boeing's definition.

[00:12:09] Speaker 01:
Actually, it could be interpreted as facially neutral because it's wearing something other than the approved uniform, a different color in a health care facility where patients are wondering, trying to make out often who is in charge and which level of health care.

[00:12:28] Speaker 03:
But I thought the ALJ's findings included findings that there wasn't a ban on logoed garb, that it was just that they said, take off those union scrubs.

[00:12:40] Speaker 03:
So if you had a general policy that said, only uniform, our uniform, no logos, I could see that as not as spatially neutral within the terms of Lutheran heritage and or Boeing.

[00:12:55] Speaker 01:
That would be an argument.

[00:12:56] Speaker 01:
But to decide to divorce that argument from Lutheran heritage with the overlay of Boeing is, well, a step too far.

[00:13:04] Speaker 01:
That's the board's job.

[00:13:07] Speaker 01:
The board has changed the law.

[00:13:08] Speaker 01:
That change has remarkable implications.

[00:13:11] Speaker 03:
But not on that point.

[00:13:13] Speaker 03:
Not on the point of whether something's facially neutral or not.

[00:13:17] Speaker 01:
Yes.

[00:13:19] Speaker 01:
I don't think it's that clear, frankly, how Boeing's been interpreted.

[00:13:23] Speaker 01:
In fact, the board just in the past two weeks has remanded a host of cases that were pending that have been decided by administrative law judges on every kind of work rule, several dozen, which shows that the board itself thinks that everything needs to be revisited factually, including this.

[00:13:39] Speaker 01:
And I just want to add, that's an important point, but we can't get to the other five

[00:13:44] Speaker 01:
allegations, but I would reiterate what we said in the brief about your Bellagio case and the impact that has on several allegations in which the complaint was found by the judge to not have been proven and yet, without fair notice to the employer, was turned around, including on the posting of the pro-union fliers, including another Scrubs situation with Andre the janitor.

[00:14:08] Speaker 01:
in which a totally new theory was adopted, one that had not been charged against the company, and the company had no ability to realize that they were being sandbagged in this way.

[00:14:19] Speaker 01:
I want to reserve some time for rebuttal, and I appreciate your time.

[00:14:22] Speaker 02:
All right.

[00:14:24] Speaker 02:
Mr. Iwasik.

[00:14:38] Speaker 00:
Thank you, Your Honors, and may it please the Court.

[00:14:41] Speaker 00:
My name is Craig Iwasik, and I'm here representing the National Labor Relations Board.

[00:14:46] Speaker 00:
As a preliminary matter, I'd like to say that- Can you bring that mic up a little bit?

[00:14:49] Speaker 00:
Yes, of course.

[00:14:53] Speaker 00:
Is that better?

[00:14:55] Speaker 00:
As a preliminary matter, I'd like to say with regard to the Boeing remand issue, over the past few months, the board has issued subsequent Boeing decisions that have made expressly clear, if it wasn't clear from the Boeing decision itself, that the remaining two prongs

[00:15:13] Speaker 00:
of Lutheran heritage have remained intact in spite of Boeing.

[00:15:17] Speaker 00:
And I can provide citations for that, but just as a quote, it makes clear that Boeing overruled the reasonably construed prong, but not the promulgated in response prong of Lutheran heritage.

[00:15:28] Speaker 00:
So there are three cases that have come down this summer that basically affirm the board's position on the limitation of the Boeing ruling vis-a-vis Lutheran heritage.

[00:15:37] Speaker 00:
Going to the solicitation grievance, I think Judge Pollard's, building on Judge Pollard's comments, the important thing here was that the board found that this was not simply an exchange of pleasantries under these facts, under these circumstances.

[00:15:55] Speaker 00:
Opposing counsel is correct that the board found that the order was that Marcus Mettler first asked how things are going.

[00:16:02] Speaker 00:
If the brief created any confusion about that, I apologize, but that is what the board found.

[00:16:07] Speaker 00:
But the sequence would not have mattered.

[00:16:11] Speaker 00:
The board's position was that if you have a high-ranking official, this was the chief operating officer of Meck Arden's corporate parent, flying in from out of town,

[00:16:22] Speaker 00:
approaching a certified nursing assistant, a low-level employee, but one of the two main union organizers, approaching her on the floor when he normally does not do so, and there's no history of past practice of having done so, and asks her how things are going, also asks her about the union, and then thanks her and says that he will look into her complaints.

[00:16:47] Speaker 00:
On those facts, this was a solicitation.

[00:16:49] Speaker 00:
It's not the case that an employer could not ask an employee how things are going, and that would be necessarily unlawful.

[00:16:57] Speaker 00:
There are plenty of cases where an employer, usually a lower-level supervisor, does in fact have the past practice of being more gregarious, being more inquisitive about how things are going with their employees, and in those cases there were no solicitations found.

[00:17:12] Speaker 00:
But here, in light of these unusual circumstances, in light of the fact that this was the beginning of a union organization drive, on those facts there was an unlawful solicitation.

[00:17:25] Speaker 00:
With regard to the Lutheran heritage violations, which were the direction not to visit areas of the facility to which CNAs weren't assigned, also the direction not to wear union scrubs, it's clear that

[00:17:41] Speaker 00:
The ALJ and subsequently the board affirmed that those violations were found in the first instance regarding the visitation rule, all three prongs of Lutheran heritage, regarding the union scrubs violation, prongs one and two of Lutheran heritage.

[00:17:56] Speaker 03:
Why does Lutheran heritage even apply to the scrubs situation if that's explicitly anti-union conduct?

[00:18:05] Speaker 03:
I don't really understand why the ALJ deployed Lutheran heritage there.

[00:18:10] Speaker 00:
Right.

[00:18:10] Speaker 00:
The idea is that Lutheran heritage is supposed to apply to rules that are facially neutral.

[00:18:15] Speaker 00:
I think your point is that it doesn't seem facially neutral to say you can't wear Union scrubs.

[00:18:19] Speaker 00:
That seems to expressly, basically prohibit Union activities.

[00:18:24] Speaker 00:
You can just bypass the Lutheran heritage analysis altogether.

[00:18:29] Speaker 00:
Mr. Marr actually made this comment, you might have noticed in one of the footnotes.

[00:18:34] Speaker 00:
I think the basic idea was that

[00:18:40] Speaker 00:
It was litigated this way, I think, in order to touch upon the fact that it wasn't necessarily directed exclusively at Union scrubs.

[00:18:50] Speaker 00:
In this instance, that's how it was expressed, but it might very well have covered other types of variations on scrubs.

[00:18:57] Speaker 00:
And I think that also, because it was promulgated, allowed the ALJ to sort of put it into that framework and say, well, you have a restriction on the logos and colors that were normally worn

[00:19:10] Speaker 00:
with regard to scrubs, and also it was promulgated at this time, but I understand that you probably could have litigated this on a different theory, that's probably correct, but it was litigated this way here.

[00:19:21] Speaker 00:
But in any case, undoubtedly promulgated in response to Union activity, violation of Lutheran heritage prong two, and that prong remains good law.

[00:19:31] Speaker 00:
With regard to

[00:19:34] Speaker 00:
the piggybacking on that with regard to the other violation involving union scrubs.

[00:19:44] Speaker 00:
The employer, McArden, makes a big deal about the fact that this was third-party coercion.

[00:19:51] Speaker 00:
There's no

[00:19:53] Speaker 00:
such theory under 8A1 of the Act, it's not necessary to specify which employee was coerced.

[00:20:00] Speaker 00:
If an employer engages in a course of conduct that would tend to reasonably coerce any employee, that's good enough to find the violation.

[00:20:08] Speaker 03:
So is that your argument responding to counsel's Bellagio point that he's saying we were sandbagged, that you switched the theory?

[00:20:17] Speaker 00:
Well, I think the Bellagio point was raised more with regard to the posting violation.

[00:20:21] Speaker 00:
So he raises the issue of Bellagio twice.

[00:20:25] Speaker 00:
So the first one is with regard to this instruction to janitor Andreas telling him, you have to take off union scrubs.

[00:20:32] Speaker 00:
And our position here is that the complaint entirely covered this found violation.

[00:20:39] Speaker 00:
The complaint, if you look at JA10,

[00:20:42] Speaker 00:
It says, you know, buy Juanita Harmon, on or about July 15th, instructed employees not to wear scrubs with the union logo while allowing employees to wear other logos and insignias.

[00:20:54] Speaker 00:
The found violation was the employer violated 81 by instructing Andres with a near shot of Holcomb to take off the union scrubs and wear instead pro-union attire.

[00:21:03] Speaker 00:
The complaint doesn't say

[00:21:04] Speaker 00:
The complaint says employees.

[00:21:07] Speaker 00:
And so from our perspective, the Bellagio issue doesn't come up at all with regard to that Andreas union struggles violation.

[00:21:17] Speaker 00:
That was completely contained.

[00:21:19] Speaker 00:
With regard to the second violation, the posting violation, so Bellagio was a bit different because what happened there was in Bellagio, the employer was charged with a rule violation.

[00:21:31] Speaker 00:
There was no evidence of a rule violation at trial.

[00:21:35] Speaker 00:
And in fact, it was contrary evidence.

[00:21:38] Speaker 00:
The ALJ found a rule violation nonetheless.

[00:21:41] Speaker 00:
And then the board overruled the ALJ and found a coercive statement violation.

[00:21:46] Speaker 00:
And what this court said in Bellagio was that

[00:21:49] Speaker 00:
This, you know, the entire aim of the general counsel's case at hearing was that this was a rule violation.

[00:21:58] Speaker 00:
The employer had no notice at the hearing that they might very well be held liable for a coercive comment violation.

[00:22:06] Speaker 00:
By contrast here, what happened was, and the ALJ talks about this at great length, from the very beginning, the GC's theory was that

[00:22:18] Speaker 00:
MacArden was disparately enforcing his posting violation.

[00:22:23] Speaker 03:
Against pro-union literature.

[00:22:24] Speaker 03:
And so the charge is selectively and disparately prohibiting the posting of pro-union flyers while permitting the posting of anti-union flyers.

[00:22:32] Speaker 03:
And the evidence wasn't that there was a permission of posting anti-union flyers.

[00:22:35] Speaker 03:
The evidence was that there was permission of posting other flyers.

[00:22:39] Speaker 03:
That's correct.

[00:22:40] Speaker 03:
And you're saying the evidence came in.

[00:22:43] Speaker 03:
MacArden had a full opportunity to cross-examine.

[00:22:46] Speaker 03:
Nobillagio problem.

[00:22:47] Speaker 00:
cross-examine and also bring rebuttal witnesses, which they did.

[00:22:51] Speaker 00:
So in the course of that trial, yes, you're correct.

[00:22:54] Speaker 00:
The ALJ basically says this was a very inartfully drafted complaint.

[00:23:00] Speaker 00:
But whether MacArden had noticed was a different question, because from the very beginning, the general counsel is bringing evidence that is all about whether or not there was disparate treatment regarding pro-union postings and non-union postings.

[00:23:14] Speaker 00:
The Avon postings, the bake sale, the potluck, all that.

[00:23:19] Speaker 03:
On surveillance, an employer is permitted to surveil its employees 24-7.

[00:23:24] Speaker 03:
In a situation like this where you have nurses and you're dealing with people who are fragile, you can have security cameras throughout the facility, no?

[00:23:34] Speaker 00:
Yes.

[00:23:36] Speaker 00:
But with regard to that impression of surveillance violation, the key issue is whether an employee would reasonably assume from an employer's statement that his or her union activities have been placed under surveillance.

[00:23:48] Speaker 00:
And here you had this change that the employees had been under the impression that the internal cameras at the facilities had been turned off for a long time.

[00:23:57] Speaker 00:
They had been turned off for two years.

[00:23:58] Speaker 00:
They had been turned off for months outside the facility.

[00:24:01] Speaker 00:
then suddenly you have this incident where Hernandez tells a CNA danger field, these cameras are back on.

[00:24:11] Speaker 00:
You better watch out.

[00:24:12] Speaker 00:
They're recording their conversation.

[00:24:13] Speaker 00:
Opposing counsel is absolutely right that the cases that the board cites regarding surveillance are factually different, because this is a very factually unusual case.

[00:24:24] Speaker 00:
In the cases cited by McArden,

[00:24:27] Speaker 00:
It is often the case that employers were told that the employer had known about the employee's union activity.

[00:24:36] Speaker 00:
Here it's a very different set of facts, but the crucial legal principle remains the same, that if an employer makes a statement that would tend to create a reasonable assumption on the part of the employee that they're being surveyed, that is a violation under the Act.

[00:25:00] Speaker 00:
And with that, I rest unless there's any questions.

[00:25:08] Speaker 02:
All right.

[00:25:09] Speaker 02:
Thank you.

[00:25:09] Speaker 00:
Thank you.

[00:25:11] Speaker 02:
How much time does Mr. Baskin have?

[00:25:17] Speaker 01:
I'll try to come in with that.

[00:25:19] Speaker 01:
First, let me answer your question about wearing the record as the reference to the two or three times a month visits from Mr. Mettler, Joint Appendix 180.

[00:25:30] Speaker 03:
And once every night, I found it.

[00:25:31] Speaker 03:
Thank you so much.

[00:25:32] Speaker 01:
OK.

[00:25:33] Speaker 01:
Then we're referring to some of the statements made by opposing counsel about the instructing employees allegation and Andre, the janitor, as it were.

[00:25:43] Speaker 01:
How can an allegation of instructing employees apply to someone who the employer person does not know is there?

[00:25:53] Speaker 01:
And in looking back at Ms.

[00:25:54] Speaker 01:
Holcomb's testimony, she doesn't say she was instructed.

[00:25:58] Speaker 01:
She says she overheard.

[00:26:00] Speaker 01:
the management representative instructing someone else.

[00:26:04] Speaker 01:
a bit of a credibility patently insupportable argument because of the fact that this other person, undisputed, did not speak English.

[00:26:11] Speaker 01:
So how could she overhear her instructing him in English?

[00:26:14] Speaker 01:
But regardless of that, we have a situation where she herself was not instructed.

[00:26:21] Speaker 01:
It occurred to no one during the hearing to even address that issue further or to defend.

[00:26:26] Speaker 01:
The employer had no opportunity to defend itself against this wild claim that the judge eventually came up with.

[00:26:34] Speaker 01:
And similar with the job posting issue, the postings on the bulletin boards, when the testimony is coming in, when one reads the record, I didn't do the trial, but when you read the record and you see that statements are being made that are not postings and are not anti-union, the employer is thinking, well, this is good for the case.

[00:26:57] Speaker 01:
It just shows that there's no violation according to what was alleged.

[00:27:01] Speaker 01:
Nowhere did the general counsel amend the complaint, nowhere during the course of it did the judge say, well, now there's a potential other allegation here.

[00:27:10] Speaker 01:
It's exactly like Bellagio, in which this oral rule was, don't discuss discipline.

[00:27:16] Speaker 01:
And they wound up saying, well, that's not proof that there was an oral rule, but we're going to call it coercion of

[00:27:23] Speaker 01:
Forcing, coercing someone not to discuss discipline.

[00:27:26] Speaker 01:
That's something that this court has said is unfair to employers, violates due process.

[00:27:32] Speaker 01:
If they have a complaint, prove the complaint.

[00:27:34] Speaker 01:
They have the ability to amend the complaint during the hearing.

[00:27:37] Speaker 01:
They didn't do any of those things.

[00:27:39] Speaker 01:
They blindsided the employer on at least those two allegations.

[00:27:43] Speaker 01:
We've, I think, made our points about the other issues.

[00:27:46] Speaker 01:
We ask that the case be denied enforcement.

[00:27:49] Speaker 01:
Thank you.

[00:27:51] Speaker 02:
Stand, please.