[00:00:16] Speaker 00:
Good morning.

[00:00:17] Speaker 03:
Good morning, Your Honors.

[00:00:27] Speaker 03:
And it involves testimony and facts involving blocking of ingress to the facility by union picketers in August of 2015.

[00:00:36] Speaker 03:
Two key witnesses on that testimony, Yolanda Thornton and Mary Weather, Erica Mary Weather, testified about the blocking, which the hearing officer largely disregarded because he considered the testimony to be, in his words,

[00:00:56] Speaker 03:
Conclusory and contradictory in the case of Thornton, and in the case of Merriweather, she said that her testimony was conclusory, largely devoid of any specific contradictory and confusing.

[00:01:09] Speaker 03:
But he never made witness credibility determinations with respect to that testimony, and interestingly, while he found there was no real blocking,

[00:01:18] Speaker 03:
In his decision, he says, and I'm quoting, this is the exchange involving Merriweather, the exchange was a minute or two before she blew her horn, the demonstrator moved out of the way, and she proceeded into the parking lot.

[00:01:32] Speaker 03:
The hearing officer fixated on whether or not there was literature being passed to the people in the car from the side of the car.

[00:01:38] Speaker 03:
And obviously, if you're beside the passenger window of a car, you're not standing in front of the car.

[00:01:43] Speaker 03:
But the hearing officer disregards and ignores the fact that this is a group of 15 to 20 people who are parading and picketing in front of the employer's facilities.

[00:01:53] Speaker 02:
I think what the hearing office and the board were focused on, except Thornton and Merriweather's testimony, is true.

[00:01:59] Speaker 02:
It's like, so what?

[00:02:01] Speaker 02:
It's of no moment, there's no coercion, no threatening, you're not really blocking anybody.

[00:02:05] Speaker 02:
I mean, it's very clear.

[00:02:06] Speaker 02:
You look at the record, it's kind of, oh, what's the big deal?

[00:02:10] Speaker 02:
I can give you blocking cases and threatening cases, as you know, that are honest to goodness.

[00:02:15] Speaker 02:
Certainly.

[00:02:16] Speaker 02:
Serious cases.

[00:02:17] Speaker 02:
These are not interesting cases.

[00:02:18] Speaker 02:
These are not serious cases.

[00:02:19] Speaker 03:
Well, I think it's all a question of degree, Your Honor.

[00:02:21] Speaker 03:
I would agree with that.

[00:02:22] Speaker 03:
But we would rely principally on Metal Polisher's Local 67, which is a 1972 board decision, with the board held

[00:02:28] Speaker 03:
This is an entirely peaceful situation, very much like the facts in the case at bar, that a delay of ingress and egress from one to five minutes under peaceful conditions constitutes a violation of the act and blocking.

[00:02:42] Speaker 03:
That's the board case law that we're relying on.

[00:02:44] Speaker 02:
Do you really think that that is a rule of law, that if you can fit that paradigm, it's automatically a violation?

[00:02:51] Speaker 02:
That is not the case, because there have been so many cases since then.

[00:02:54] Speaker 02:
How many years have passed?

[00:02:56] Speaker 02:
At least you found it, but there have been so many cases since then that suggest that the board looks at the context and they make a determination and we're supposed to defer to it unless there's no reason decision-making.

[00:03:13] Speaker 02:
I mean, when you read this record, I shrug my shoulders.

[00:03:17] Speaker 02:
Of course, that's the finding.

[00:03:19] Speaker 03:
Well, Your Honor, with the case of Thornton, it wasn't just the blocking, it was also the threat, where she testified that as she was being blocked from the ingress to the facility, she heard one of the picketers state to her, quote, if you don't vote yes for the union, we will F you up, close quote.

[00:03:38] Speaker 03:
And I think in the vernacular, Your Honor, that can be considered a threat of violence.

[00:03:43] Speaker 02:
That's undisputed that that was made.

[00:03:44] Speaker 02:
And I think the finding was that there was nothing indicated that was clearly directed at her, whatever it was said.

[00:03:51] Speaker 03:
Your Honor, she was the only person coming through the line at the time.

[00:03:53] Speaker 03:
There's a group of 10 to 15 people.

[00:03:56] Speaker 03:
And under Avis Renicar, that's a strict liability offense.

[00:03:59] Speaker 03:
The union owns the conduct of those picketers.

[00:04:01] Speaker 03:
This is not a third-party conduct issue.

[00:04:04] Speaker 03:
And so we would argue that combination of the blocking – in her case, approximately a minute, in the case of Merriweather, up to two minutes – plus that threat in the case of Thornton, we believe that would be sufficient

[00:04:17] Speaker 03:
I think, Your Honor, the fact that this case also involves a very close election, 35 to 31.

[00:04:23] Speaker 03:
And Ms.

[00:04:24] Speaker 03:
Thornton testified, and this is to me the most shocking part of the case, she testified that these events made her feel uneasy, made her not want to come to work, and ultimately made her vote against her conscience.

[00:04:37] Speaker 03:
She testified in response to cross-examination questions.

[00:04:40] Speaker 02:
What does that mean, vote against her conscience?

[00:04:41] Speaker 03:
She changed her vote, Your Honor.

[00:04:42] Speaker 02:
Which way?

[00:04:43] Speaker 03:
We don't know, Your Honor.

[00:04:44] Speaker 02:
Well, it's not terribly helpful, is it?

[00:04:46] Speaker 03:
Well, but Your Honor, if we're trying to preserve laboratory conditions, the fact that these events were significant enough to cause an employee to change her vote, however she changed it, and to not vote her conscience, that's what we're here for.

[00:05:00] Speaker 02:
See, but the problem is that in the board situations where you have these kinds of back and forth going on over the years, what the board has

[00:05:11] Speaker 02:
understood is that even though you're trying to protect employees, sometimes employees claim sensibilities that are utterly unreasonable, and we're not going to credit it.

[00:05:22] Speaker 02:
And so someone says, oh, I'm scared to death.

[00:05:24] Speaker 02:
Well, but you look at the circumstance, you say, well, you know, we're really sorry for you that your level of sensibility is that bad.

[00:05:30] Speaker 02:
But we can't credit that because these kinds of things go on and there's no reason for us to think that a reasonable person will feel threatened or coerced and there isn't anything to indicate that the comment was directed at you.

[00:05:41] Speaker 02:
That's what they found.

[00:05:43] Speaker 02:
And I don't know how we ignore their findings or their findings.

[00:05:47] Speaker 01:
Also, you were talking about Thornton, right?

[00:05:52] Speaker 03:
Yes, Your Honor.

[00:05:54] Speaker 01:
Isn't Thornton the witness who the hearing officer didn't credit her testimony because it was elicited to a leading question?

[00:06:02] Speaker 03:
Well, Your Honor, that's an interesting point.

[00:06:04] Speaker 01:
That's why I asked it.

[00:06:05] Speaker 03:
Yes.

[00:06:08] Speaker 03:
The actual exchange with respect to the leading, an objection was raised when the question was asked by counsel for the employer on direct examination.

[00:06:15] Speaker 03:
And the judge denied, overruled the objection and allowed the witness to continue to testify.

[00:06:20] Speaker 03:
But that wasn't the statement that was ultimately the key piece of this.

[00:06:23] Speaker 03:
That was on cross-examination in response to questions from the union's counsel.

[00:06:28] Speaker 03:
There were no leading questions.

[00:06:29] Speaker 03:
It was probably, well, I guess I'll cross by definition as leading.

[00:06:32] Speaker 01:
And that's where that statement of the detail, where he asked her what exactly was said to you, and that's when she said... Can you cite any case where this court has engaged in that kind of searching, examination of ALJ's credibility determination?

[00:06:51] Speaker 03:
Your Honor, I can't cite a case standing here, but I do believe under

[00:06:57] Speaker 03:
universal camera, the court is and does have the ability to look at the record and determine whether there's substantial evidence on the record as a whole to support the findings.

[00:07:06] Speaker 01:
That wasn't the question I asked you.

[00:07:07] Speaker 03:
I understand, Your Honor.

[00:07:09] Speaker 03:
I don't have a case to cite, Your Honor.

[00:07:14] Speaker 01:
Anything further?

[00:07:15] Speaker 03:
Well, Your Honor, with respect to Merriwether, the impact that

[00:07:21] Speaker 03:
the events had on her ultimately actually resulted in her tendering her resignation she did not ultimately resign

[00:07:28] Speaker 03:
So I think if you have this close of an election, 35-31, if Yolanda Thornton did change her vote, and if she had voted for the employer and not the union, we would be dealing with 34 to 32.

[00:07:39] Speaker 03:
There were two challenge ballots.

[00:07:41] Speaker 03:
That would make this determinative.

[00:07:43] Speaker 03:
And so under this Court's decision in Manor Care last year, where there's the closeness of the result of the election, we believe that the Court

[00:07:53] Speaker 03:
doesn't have to find broad dissemination of the threats or broad dissemination of the impact.

[00:07:57] Speaker 03:
We have two people impacted by this conduct.

[00:08:01] Speaker 03:
One changed her vote.

[00:08:04] Speaker 03:
One tendered her resignation.

[00:08:06] Speaker 03:
And either one of those would have put this into a determinative challenge case.

[00:08:10] Speaker 03:
And so we believe that's significant, Your Honor.

[00:08:14] Speaker 01:
All right.

[00:08:14] Speaker 01:
Thank you.

[00:08:15] Speaker 01:
Council for the board.

[00:08:16] Speaker 01:
Thank you.

[00:08:30] Speaker 04:
May it please the court, Misha Baumeister for the Labor Board.

[00:08:36] Speaker 04:
I would like to focus on two issues in my presentation.

[00:08:41] Speaker 04:
The first is the hand billing.

[00:08:44] Speaker 04:
Second, the hearing officer's evidentiary rationale for rejecting the Yolanda Thornton threat.

[00:08:56] Speaker 04:
First, the hand billing.

[00:08:58] Speaker 04:
In the week leading up to the election, the union held two peaceful demonstrations outside the employer's property.

[00:09:08] Speaker 04:
Each demonstration was about 90 minutes in length.

[00:09:12] Speaker 04:
During these demonstrations, individual demonstrators approached employees driving to work, approached their cars from the side at the driver's side in order to hand them a flyer and peacefully persuade them to support the union.

[00:09:30] Speaker 04:
This conduct was clearly lawful under established board precedent, which the company has not challenged here.

[00:09:41] Speaker 04:
Now, unless there are any questions about that, I would move right on to the alleged threat to Thornton.

[00:09:50] Speaker 04:
Now, as the Court already indicated, there were multiple independent, separately sufficient rationales for rejecting the objection based on the alleged threat to Yolanda Thornton.

[00:10:05] Speaker 04:
And it's only one of these that I want to touch upon now, specifically

[00:10:10] Speaker 04:
the hearing officer's ruling to afford Thornton's testimony little probative weight.

[00:10:19] Speaker 04:
Now, before even getting into the substance of whether that ruling was appropriate, I have several procedural points to make.

[00:10:28] Speaker 04:
Well, by several, I mean two.

[00:10:30] Speaker 04:
First is this court does not have jurisdiction to look into the propriety of that ruling.

[00:10:41] Speaker 04:
because nowhere in Pruitt's request for board review did Pruitt even acknowledge this evidentiary ruling, much less provide any reason for showing that it is erroneous.

[00:11:00] Speaker 04:
Having not made any argument to that effect to the board, the court does not have any jurisdiction to hear such an argument now.

[00:11:10] Speaker 04:
And I would add to that, even though this isn't a jurisdictional ground, the company also didn't challenge that ruling in its opening brief.

[00:11:19] Speaker 04:
Thus, under this court's waiver rules, the argument would be waived, even if there were jurisdiction.

[00:11:30] Speaker 04:
Now, I would be prepared to address the merits of the hearing officer's evidentiary ruling

[00:11:40] Speaker 04:
if the court were interested or were not persuaded by the 10e argument.

[00:11:48] Speaker 04:
But perhaps I'll just make it briefly.

[00:11:51] Speaker 04:
The hearing officer afforded Thornton's testimony a little probative weight in light of the fact that it was elicited from pleading questions by counsel.

[00:12:05] Speaker 04:
Now the company in its reply for the first time

[00:12:09] Speaker 04:
addressing this issue says, no problem, because she kept on testifying and then eventually she put the statement in her own words.

[00:12:21] Speaker 04:
She put the content of the statement in her own words.

[00:12:29] Speaker 04:
But given the context in which Yolanda heard or did not hear that statement or some other statement,

[00:12:38] Speaker 04:
leading by counsel presented a serious risk of making the crucial difference between what exactly Yolanda Thornton's testimony would have been as to the content of the statement.

[00:12:53] Speaker 04:
To explain, let me go back to the situation about which Thornton was testifying.

[00:13:00] Speaker 04:
This was on the day of the demonstration.

[00:13:03] Speaker 04:
She was driving into work or had driven into work.

[00:13:06] Speaker 04:
It's not clear exactly where she was at this point, but it was around the time that she was driving in.

[00:13:14] Speaker 04:
There was a higher than usual level of ambient noise.

[00:13:17] Speaker 04:
There were 15 to 20 union demonstrators on the sidewalk outside the facility.

[00:13:25] Speaker 04:
She was in the process of driving.

[00:13:27] Speaker 04:
She did not have any sort of visual on the speaker.

[00:13:33] Speaker 04:
Now in this context, there was reasonably a very high risk of mishearing, or not even necessarily mishearing, but hearing a snippet of some longer conversation out of context.

[00:13:52] Speaker 04:
Now against this background, if Yolanda Thornton had been allowed to testify spontaneously without words being put in her mouth,

[00:14:04] Speaker 04:
she may very well have acknowledged the uncertainty, the uncertain circumstances about what she was testifying.

[00:14:14] Speaker 04:
This is not a hypothetical concern because we actually have a, I should say, a test case comparator in this very record.

[00:14:22] Speaker 04:
That is Meriwether.

[00:14:25] Speaker 04:
Now Meriwether

[00:14:27] Speaker 04:
as you may recall, testified about a conversation she overheard indoors in the facility, a conversation between approximately four or so coworkers who were up to 20 feet away.

[00:14:44] Speaker 04:
Now, she testified that she heard them say either the union will eff people up or the union will get effed up.

[00:14:58] Speaker 04:
Now, the hearing officer quite reasonably found this testimony on its face too unreliable to indicate a threat.

[00:15:09] Speaker 04:
Now, Mary Weather wasn't sure about what she heard, but she was indoors listening to a small group of people talk.

[00:15:18] Speaker 04:
Thornton, on the other hand, was outside.

[00:15:22] Speaker 04:
During the demonstrations, with a higher than usual level of ambient noise, there were 15 to 20 people around.

[00:15:28] Speaker 04:
She was driving.

[00:15:30] Speaker 04:
She did not even have the visual on the speaker.

[00:15:36] Speaker 04:
But counsel for Pruitt, which I would add is not my opponent here today, different counsel, precluded the possibility for spontaneous testimony

[00:15:49] Speaker 04:
by essentially testifying on the witnesses' behalf and committing her to a particular story.

[00:15:59] Speaker 04:
Meriwether was asked what she heard when she was at work.

[00:16:04] Speaker 04:
Thornton was told.

[00:16:06] Speaker 04:
She was told by the attorney of the company that she had worked for for under three months at that point in time.

[00:16:15] Speaker 04:
Under these circumstances,

[00:16:19] Speaker 04:
The fact that after the leading, she later used her own words about the content of the statement did not fix the taint.

[00:16:27] Speaker 04:
Under these circumstances, it was clearly not an abuse of discretion to afford her testimony a little probative way and to find it insufficient to establish an objectionable threat.

[00:16:42] Speaker 04:
Now, if there are no further questions,

[00:16:46] Speaker 04:
I would simply ask that the court enforce the board's order and require the company to bargain with the union.

[00:16:53] Speaker 04:
Thank the court for its time.

[00:16:55] Speaker 01:
Thank you.

[00:16:57] Speaker 01:
All right, council for petition.

[00:17:03] Speaker 03:
Your honor, unless the court has any questions, I have nothing further for rebuttal.

[00:17:07] Speaker 00:
Thank you.

[00:17:08] Speaker 00:
The case will be taken under advice.