[00:00:04] Speaker 03:
Novato Health Care Center Petitioner versus National Labor Relations Board.

[00:00:08] Speaker 03:
Mr. Parsons for the petitioner, Ms.

[00:00:10] Speaker 03:
Johnston for the respondent.

[00:00:18] Speaker 01:
Good morning and may it please the court.

[00:00:20] Speaker 01:
Ryan Parsons on behalf of Novato Health Care Center.

[00:00:23] Speaker 01:
There are three issues for the court's consideration in this case.

[00:00:26] Speaker 01:
Three unfair labor practice findings from the NLRB that Navado is asking this court to review.

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The first is the alleged interrogation of Narvius Metellus by a Navado supervisor when she asked him how he intended to vote in the upcoming union election.

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The second is the termination of four unit for employees, either for sleeping or for their pro-union support.

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And the third is for the termination of Gonzalo Rodriguez, either for sleeping or as the pawn in an unlawful design of Navado's scheme.

[00:00:58] Speaker 01:
I'd like to start with the interrogation if possible, because the interrogation finding is a linchpin that holds the entire case together.

[00:01:06] Speaker 01:
The ALJ's finding and the board's subsequent adoption of the interrogation is used as evidence to support unlawful animus with respect to the terminations.

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It's used to support the ALJ and board's claim of pretext with respect to the terminations.

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And so if the interrogation falls away, then the rest of the termination findings become much more problematic.

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And the finding on the alleged interrogation cannot stand.

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The entire interaction between Metellus and the supervisor, as described by Metellus, was just two lines of dialogue on each side.

[00:01:42] Speaker 01:
Which way are you going to vote?

[00:01:44] Speaker 01:
I'm voting for the union.

[00:01:45] Speaker 01:
You know, if the union wins, they can take a portion of your paycheck.

[00:01:50] Speaker 01:
I'm not worried about that.

[00:01:51] Speaker 04:
Can I pause for one second?

[00:01:53] Speaker 04:
You said that the interrogation is the basis for the finding of Animus.

[00:01:58] Speaker 04:
Animus is the first step of right line?

[00:02:00] Speaker 04:
Correct, Your Honor.

[00:02:01] Speaker 04:
I thought you conceded the first step of right line.

[00:02:03] Speaker 01:
Well, it's used as evidence for animus, and it's also used as evidence to support the pretext of the second stage.

[00:02:09] Speaker 01:
In both the, the anti, the alleged anti-... I thought you were resting solely on the ground.

[00:02:15] Speaker 01:
Correct, Your Honor.

[00:02:16] Speaker 01:
Absolutely.

[00:02:17] Speaker 04:
Well, let me get to what it is you're resting solely on before you agree.

[00:02:20] Speaker 04:
Sorry.

[00:02:21] Speaker 04:
You might be agreeing to one or two more.

[00:02:24] Speaker 04:
I thought you were resting solely on the ground that you would have done it, would have

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fired them anyway.

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Isn't that right?

[00:02:33] Speaker 04:
That is correct, Your Honor.

[00:02:34] Speaker 04:
And you agree that depends totally on credibility.

[00:02:36] Speaker 04:
That's what you say in your reply briefly.

[00:02:38] Speaker 01:
It depends on credibility, but the ALJ and then subsequently the board found support for this credibility determination on the grounds that Nevada was engaged in this anti-union campaign.

[00:02:52] Speaker 01:
So it is still relevant to the second step of the right-line analysis.

[00:02:56] Speaker 04:
I'm asking this because I don't recall this argument being made in your brief that the whole case falls away if you win on interrogation.

[00:03:08] Speaker 04:
Did you make that argument?

[00:03:12] Speaker 01:
Your Honor, I have to... I'll trust you if you just tell me.

[00:03:15] Speaker 01:
I believe we did, yes.

[00:03:16] Speaker 01:
And if I'm mistaken... If you could just look for it when you sit down.

[00:03:22] Speaker 01:
Sure, absolutely, Your Honor.

[00:03:26] Speaker 01:
So there's two halves to this communication between Metellus and the supervisor.

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The first is which way you're going to vote, and he readily acknowledges he's going to vote for the union.

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The second half is the statement that if the union wins, they could take a portion of your paycheck.

[00:03:44] Speaker 01:
Metellus says, I'm not worried about that.

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That's the end of the interaction.

[00:03:49] Speaker 01:
the finding of interrogation naturally falls on the first half of that interaction.

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But to support that, they rely on the second half of the interaction, which was the statement that the union could take a portion of your paycheck.

[00:04:04] Speaker 03:
Your argument is focusing simply on the words that were spoken between the two people, and both the ALJ and the board thought the context here mattered.

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And that's right.

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It's a matter of law, right?

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We're supposed to look at the

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the context, the disparity in the position between the two folks, the setting, the whole context.

[00:04:24] Speaker 03:
Can you address that issue, the larger context?

[00:04:27] Speaker 01:
Sure.

[00:04:27] Speaker 01:
I think the context supports finding this was not an interrogation.

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The fact that he did readily admit it is one of the factors that they look at in context.

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Another is the fact that he was wearing this lanyard.

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The board, of course, makes much of the fact that these folks were open and obvious

[00:04:41] Speaker 03:
What about that it was a high ranking person in management who had not before interacted with this person?

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Certainly the fact that Ms.

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Roca was the director of staff development and not his front line supervisor is a factor that goes the other way.

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But having said that, Metellus acknowledged that he didn't even know really who she was or what she did.

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He knew she was a DSD and that's effectively all he knew.

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Within those contexts, the fact that he didn't know she was a high-ranking supervisor really mitigates, you know, how the coercive nature of that factor.

[00:05:14] Speaker 04:
Was that point doubted by the ALJ, that statement?

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Which statement?

[00:05:19] Speaker 01:
That he didn't know.

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I don't believe so.

[00:05:22] Speaker 01:
I think the evidence was... I think the transcript is very clear that he says, you know, it was this DSD and her name was Gay and that was all he knew.

[00:05:32] Speaker 01:
I'm pretty sure the record evidence is very clear on that point.

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So because of that, we would argue that the interrogation finding falls away.

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And that transitions to the second point, which is the... But you've already acknowledged my question.

[00:05:51] Speaker 03:
You said, yeah, that point cuts their way.

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We're dealing in an area where deference is owed, right?

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And when you acknowledge that there is at least one factor that cut in the direction of finding this coercive,

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What are we supposed to do with that?

[00:06:11] Speaker 01:
Except that, Your Honor, in this case... It's a deferential standard, right?

[00:06:16] Speaker 01:
It is an interpretation of the act, which is entitled to deference, except for the fact that a substantial chunk of the board's reasoning... We're looking for whether this was coer... The legal judgment is whether that interchange was coercive, right?

[00:06:30] Speaker 03:
Correct.

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And that depends on all sorts of factual circumstances.

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And we're not in a position to...

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to evaluate those circumstances as well as the LJ and the board were.

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That's why the legal standard for us is highly deferential.

[00:06:46] Speaker 01:
I agree, except for the fact that a substantial portion of the reasoning that the ALJ relied on is statements that by law cannot be considered to support the argument, which is these... Statements.

[00:07:00] Speaker 01:
Statements.

[00:07:00] Speaker 03:
That's why I say you're focusing on the words that we use, where the legal standard looks at something far more than the word.

[00:07:06] Speaker 01:
Right.

[00:07:06] Speaker 01:
But again, I would just go back to the point that the ALJ relied on the fact that these

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post-question statements were coercive when they cannot be as a matter of law, because they are protected First Amendment speech.

[00:07:21] Speaker 01:
That argument was not made below?

[00:07:24] Speaker 01:
Correct, Your Honor.

[00:07:25] Speaker 01:
That argument was not made in front of the ALJ or the Board, having said that, it is a protected First Amendment right to be protected from government interference with free speech.

[00:07:34] Speaker 04:
And your position is that all constitutional rights cannot be forfeited by failure to raise below in any kind of case?

[00:07:42] Speaker 01:
I would not make the argument that broadly, Your Honor.

[00:07:45] Speaker 01:
I'd argue that this right, the right to be protected from government interference with freedom of speech, cannot be waived.

[00:07:51] Speaker 01:
And is there a case that says that?

[00:07:53] Speaker 01:
Not beyond what we cite in our briefs, Your Honor.

[00:07:55] Speaker 04:
So there's no case that says that?

[00:07:57] Speaker 04:
There's no case that says that it overcomes the jurisdictional bar of the National Labor Relations Act?

[00:08:02] Speaker 01:
Not in so many words, correct, Your Honor.

[00:08:05] Speaker 01:
Not in any words.

[00:08:06] Speaker 01:
Is that right?

[00:08:07] Speaker 01:
I think of the cases we cite in our brief support are this argument, but... Regardless of how the Court finds on the... I see I'm into my rebuttal time.

[00:08:23] Speaker 01:
I'd like to reserve the remainder of my time for rebuttal unless the Court has any further questions.

[00:08:44] Speaker 00:
Good morning and may it please the court.

[00:08:46] Speaker 00:
My name is Rebecca Johnston for the National Labor Relations Board.

[00:08:50] Speaker 00:
Novato has greatly narrowed the issues for review before this court.

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They admit that they are challenging only the board's factual findings, which are governed by the deferential substantial evidence review.

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They also admit that in large part they are challenging the administrative law judges credibility findings, which as this court acknowledges, there's a high bar for overturning these credibility findings.

[00:09:14] Speaker 00:
Novato has not met that high bar.

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It has not shown that they are hopelessly incredible, self-contradictory, or patently insupportable.

[00:09:23] Speaker 00:
Turning first to the unlawful suspension and discharge of the four station four employees,

[00:09:29] Speaker 00:
Novato concedes that the general counsel met its initial showing of unlawful motivation.

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In its argument, it claimed that it argued that if the interrogation falls away, the rest of the violations fall away.

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This was not made in any of the briefing.

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And so that argument is waived.

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The board's credibility findings as adopted, or the ALJ's credibility findings as adopted by the board are well supported.

[00:10:06] Speaker 03:
The ALJ went a little too far there, didn't she?

[00:10:10] Speaker 03:
I do not find her testimony credible and reject her version of this completely.

[00:10:17] Speaker 03:
That's kind of loose language, isn't it?

[00:10:19] Speaker 03:
I mean, because there were some portions of the testimony that were.

[00:10:22] Speaker 03:
incredible time she arrived at work and things of that nature.

[00:10:26] Speaker 03:
So what are we to do with such loose language?

[00:10:30] Speaker 00:
Your honor, she did say that she rejected them completely, but certain portions I think she did rely on.

[00:10:38] Speaker 03:
So what are we to do with that discrepancy?

[00:10:42] Speaker 00:
Overall, I think just if you look at her credibility findings, they are well supported.

[00:10:48] Speaker 00:
and well explained and notwithstanding what you characterize as being loose language.

[00:10:53] Speaker 03:
So you would agree that that's loose language?

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I would agree that she did credit portions of her testimony she did rely on, particularly that she looked at the clock at 3.50 a.m.

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and that she did in fact witness two employees with their eyes closed.

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But in large part, the portions of her testimony that she credited were corroborated by other testimony.

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For example, testimony of the four employees.

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In its briefing, Novato claims that this photo is the type of documentary evidence that would be something that the court would look at to overturn credibility findings.

[00:11:32] Speaker 00:
This is not accurate.

[00:11:35] Speaker 00:
It does not contradict the testimony of the four employees who Novato doesn't even mention in its brief.

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And it does not show that Gilman's testimony should be credited in total.

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It simply does not show Novato's version of events.

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It does not show all four employees asleep at the same time.

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It does not show whether the two employees with their eyes closed were on their breaks at the time.

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It does not show when they started their breaks or when they ended their breaks.

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So the administrative law judge looked at this piece of evidence and gave it little weight, particularly considering that the time stamp on the photo appeared several months after the decision to terminate the employees.

[00:12:25] Speaker 00:
Turning next to the station one employee who Nevada terminated, it is well settled board law that the discipline of a neutral or even an anti-union employee to cover up discriminatory conduct against union supporters also violates the act.

[00:12:44] Speaker 00:
Novato again concedes the initial showing of unlawful motivation, and here it cannot meet its affirmative defense of showing that it would have issued the same discipline for this employee, notwithstanding the union activity of the four employees.

[00:12:59] Speaker 00:
Novato doesn't even mention this email in the record, which is clear documentary evidence that it would not have met its affirmative defense.

[00:13:07] Speaker 00:
In this email, which is from its counsel, the counsel

[00:13:12] Speaker 00:
states that the employee on station one is a bit of a different story because her sleeping was tolerated by her charge nurse.

[00:13:21] Speaker 00:
It nevertheless goes on to say that, to counsel the employer, that it should not consider any lesser discipline for fear of diluting its arguments with the other four before the NLRB or a judge.

[00:13:37] Speaker 00:
And that email is at Joint Appendix 529.

[00:13:41] Speaker 00:
Novato hasn't addressed this in its briefing.

[00:13:45] Speaker 00:
And finally, turning to the interrogation, just looking at what happened under the totality of the circumstances, you have a contentious union campaign, a high-level supervisor who was not normally present on the night shift, an employee who was alone.

[00:14:03] Speaker 03:
But you'll agree that there was nothing that Roka said was per se violative of the act?

[00:14:12] Speaker 03:
A manager can have that type of discussion.

[00:14:16] Speaker 00:
So what's unlawful here?

[00:14:19] Speaker 00:
You look at the context and the totality of the circumstances in determining whether an interrogation is unlawful.

[00:14:25] Speaker 00:
And she asked this employee who was alone, how are you going to vote in the upcoming year?

[00:14:31] Speaker 03:
And there's nothing wrong with that, right?

[00:14:32] Speaker 03:
There's nothing wrong with asking how someone's going to vote.

[00:14:37] Speaker 00:
That's just one factor to consider among others in the interrogation analysis.

[00:14:43] Speaker 00:
And as the board noted, this question in particular is uniquely coercive.

[00:14:49] Speaker 00:
The board guards the secrecy of the voting booth and protects its employees' rights to their secret ballot election.

[00:14:59] Speaker 00:
This wasn't the only thing that the board considered, but it did find the nature of the question to be troubling.

[00:15:07] Speaker 00:
Supervisor did not offer any assurances against reprisal for his admitting that he was going to vote for the union and Didn't explain why it was asking this type of question I know council says that the employee didn't know who this this person was who is interrogating him but he testified the employee testified that it was the DSP and

[00:15:31] Speaker 00:
and testify that it was a person named Gay, and then the employee went on to testify as to what the DSD did, what her job duties were.

[00:15:41] Speaker 00:
So it's clear that the employee knew this was a high-level supervisor.

[00:15:44] Speaker 00:
And as for the employer's argument that the subsequent

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The subsequent comment, you know the union can take part of your paycheck, can't be considered.

[00:15:57] Speaker 00:
As we argue in our brief, they never raised that before the board in a motion for reconsideration.

[00:16:02] Speaker 00:
And that wasn't the only thing that the board relied on in finding this interrogation to be coercive.

[00:16:09] Speaker 00:
And I have a couple of cases.

[00:16:11] Speaker 03:
What about the argument that, and I may not be pronouncing it, Matulis, Metulis, no reason to think that Matulis would be coerced, very outspoken proponent for the union, understood what was going on with the union vote, no reason to think that being coerced in any fashion.

[00:16:36] Speaker 00:
Well, an employer is not free to interrogate union supporters.

[00:16:40] Speaker 00:
That's one factor that the board and the court does consider, whether this person openly supported the union.

[00:16:46] Speaker 00:
But it is an objective standard, whether this type of situation would reasonably tend to coerce someone.

[00:16:54] Speaker 00:
And in this case, notwithstanding his open union support, the board found that this would reasonably tend to coerce an employee.

[00:17:05] Speaker 00:
And I'd just like to cite a few cases to show that this type of argument can be jurisdictionally barred by a 10E.

[00:17:16] Speaker 00:
This court in Progressive Electric found that an 8C argument was jurisdictionally barred.

[00:17:23] Speaker 00:
And this court, in a recent unpublished opinion in Ampersand Publishing, found that a First Amendment argument could be jurisdictionally barred.

[00:17:31] Speaker 04:
What case is that?

[00:17:34] Speaker 00:
For the 8C, it was progressive electric, and the case site is 453 F-3538.

[00:17:41] Speaker 00:
And for the First Amendment argument, it's an unpublished decision, but it's very recent.

[00:17:45] Speaker 00:
It's Ampersand, and it's 2017 Westlaw 1314946.

[00:17:51] Speaker 00:
Thank you.

[00:17:58] Speaker 00:
And if there aren't any further questions, we ask that the court enforce the board's order in full.

[00:18:05] Speaker 04:
Okay, is there any time left?

[00:18:13] Speaker 01:
Just very quickly, Your Honor, I could not find the argument regarding the interrogation and its effect on the other issues in our briefing in the time that I was sitting at the table.

[00:18:24] Speaker 01:
I just want to touch on one point that Judge Griffith raised, which was this, the language of the ALJ rejecting Gilman's testimony completely.

[00:18:34] Speaker 01:
And I would argue it's more than just loose language.

[00:18:36] Speaker 01:
It actually violates the duty to consider the record

[00:18:39] Speaker 01:
as a whole and to really see that you have to compare what the ALJ did with respect to the other witnesses who the ALJ found partially incredible and that was Angel Sabalino where the judge found part of her testimony incredible and what she did was she flies back through the testimony, picked out what she thought was credible, discarded what she thought was incredible and then still relied on that testimony.

[00:19:04] Speaker 01:
With respect to Gilman, she found certain inconsistencies and disregarded the testimony as a whole.

[00:19:09] Speaker 04:
And for that reason, we don't think... Which part of the testimony as a whole matters other than her explanation of how long it took her from getting from the stop sign, first stop sign, to the picture?

[00:19:24] Speaker 01:
Well, also, so her testimony, right, so her testimony from getting the stop sign of the picture matters.

[00:19:28] Speaker 01:
Also her testimony that she saw all four employees sleeping.

[00:19:31] Speaker 01:
Also her testimony that she saw that their heads were propped up and their feet were propped up, their heads were laid back and their feet were propped up.

[00:19:36] Speaker 01:
So her testimony is incredibly important on more than just the timeline.

[00:19:40] Speaker 04:
If the ALJ thought she was transparently lying about how long it took, that not be justified also to not believe that she was, her testimony about all of them sleeping?

[00:19:53] Speaker 01:
Certainly, I think it would have been within the ALJ's discretion to say the testimony.

[00:19:58] Speaker 01:
She is obviously lying to violate the NLRA, and because of that, I'm disregarding her testimony entirely.

[00:20:05] Speaker 01:
That's not what the ALJ said, though.

[00:20:08] Speaker 01:
She said, I think she misestimates this time.

[00:20:12] Speaker 04:
He said misestimates?

[00:20:15] Speaker 04:
He says it simply appeared implausible.

[00:20:17] Speaker 01:
But again, that's different from saying she's intentionally lying about it.

[00:20:21] Speaker 01:
The ALJ is concluding that she doesn't think her testimony is plausible on this point.

[00:20:27] Speaker 04:
I don't think that necessarily... Well, plausible is not usually the word you use when you say that somebody just misestimates.

[00:20:35] Speaker 04:
I would disagree with that.

[00:20:37] Speaker 04:
She first says it only takes five minutes to do all the events

[00:20:44] Speaker 04:
And it's quite obvious that it can't possibly take only five minutes.

[00:20:48] Speaker 04:
Then she goes up to 10, then she goes up to maybe 15.

[00:20:53] Speaker 04:
This is like magic grits.

[00:20:58] Speaker 04:
Magic grits can't be done in 10 minutes.

[00:21:00] Speaker 01:
Again, and I agree that the ALJ was justified in discrediting or disagreeing with her testimony on the timeline.

[00:21:07] Speaker 01:
I just don't think from that you can set aside the remainder of her testimony.

[00:21:11] Speaker 02:
Does it reject completely simply mean to the extent that it's inconsistent with testimony on the other side?

[00:21:19] Speaker 01:
I don't think so, Your Honor.

[00:21:20] Speaker 01:
I mean, why not?

[00:21:21] Speaker 02:
I mean, why would I even ponder otherwise?

[00:21:25] Speaker 02:
I mean, the only consequence is rejecting it completely to the extent that it's in conflict, where there are two different versions, and hers conflicts with the employees.

[00:21:36] Speaker 02:
I accept the employees.

[00:21:38] Speaker 02:
Otherwise, it's nothing she's indicating.

[00:21:41] Speaker 02:
that the supervisor said that is innocuous or

[00:21:45] Speaker 02:
undisputed, she's not saying, I'm discrediting that.

[00:21:49] Speaker 01:
Well, except, Your Honor, I believe she, I believe the ALJ did go beyond that, because if you look at the termination of Rodriguez, there's no testimony in the record whatsoever to contradict the ALJ's testimony, and yet she still made no factual findings on the Rodriguez termination.

[00:22:03] Speaker 01:
So I do think the ALJ went beyond just choosing one version of events over the others, even when there was undisputed evidence, she still appeared to disregard, disregard Gilman's testimony.

[00:22:14] Speaker 04:
With respect to the sleeping, she says, she, the ALJ says, can't believe it because she didn't interrupt it.

[00:22:21] Speaker 04:
She wouldn't have let all those people be sleeping.

[00:22:24] Speaker 04:
It seems like you had a quite specific reason why she didn't believe that.

[00:22:29] Speaker 04:
Why the ALJ didn't believe that, I'm sorry.

[00:22:32] Speaker 01:
I mean, certainly ALJ offered certain support for, again, her factual findings.

[00:22:38] Speaker 01:
But again, the bottom line conclusion that she draws to reject the testimony completely, I don't think can be supportive.

[00:22:44] Speaker 01:
I don't think it's consistent with the ALJ and the board's responsibility to consider the record evidence as a whole.

[00:22:50] Speaker 02:
Well, I mean, there's just many, many cases where the board is, ALJ has found, board upholds it, and the court upholds it.

[00:22:57] Speaker 02:
This person is just not believable with respect to matters of consequence.

[00:23:03] Speaker 02:
The testimony is consistently exaggerated.

[00:23:06] Speaker 02:
It's not worthy.

[00:23:06] Speaker 02:
I'm not going to... So to the extent that the employer needs this testimony, I'm not crediting it because it's not a believable witness.

[00:23:15] Speaker 02:
I think that's all she's saying.

[00:23:17] Speaker 02:
I don't think that's noteworthy.

[00:23:19] Speaker 02:
I think it happens all the time.

[00:23:21] Speaker 02:
You have someone who gets on the stand, the ALJ says, this is really quite amazing.

[00:23:26] Speaker 02:
everything that's coming out of this person's mouth that matters.

[00:23:29] Speaker 02:
It's exaggerated, it's implausible, it's inconsistent.

[00:23:34] Speaker 02:
It doesn't make sense.

[00:23:36] Speaker 01:
And Your Honor, I would just say I don't think that was the finding made here.

[00:23:39] Speaker 01:
I think she pointed to one thing, extrapolated from it, and I don't think there's support for that in the record.

[00:23:46] Speaker 01:
Okay, further questions?

[00:23:48] Speaker 01:
Thank you, Your Honor.

[00:23:49] Speaker 01:
Take the matter under consideration.

[00:23:50] Speaker 01:
Thank you.