[00:00:01] Speaker 03:
Case number 18-1201 at AL.

[00:00:05] Speaker 03:
Circus Circus Casinos E. Doing business as Circus Circus Las Vegas Petitioner versus National Labor Relations Board.

[00:00:13] Speaker 03:
Mr. Trimmer for the petitioner.

[00:00:15] Speaker 03:
Ms.

[00:00:16] Speaker 03:
Eastbill for the respondent.

[00:00:31] Speaker 01:
Good morning, and may it please the court.

[00:00:34] Speaker 01:
I'm Paul Trimmer.

[00:00:35] Speaker 01:
I represent the petitioner, Circus Circus Casino, and I've asked to reserve four minutes for rebuttal.

[00:00:40] Speaker 01:
A petition to vacate an NLRB's administrative decision on the grounds that the evidence is insufficient is not ideal.

[00:00:46] Speaker 01:
We know that.

[00:00:47] Speaker 01:
But the board's rubber stamp approval of the ALJ in this case, like the court's decision in Jackson Hospital 647 F3D 1137, requires review.

[00:00:58] Speaker 01:
The ALJ's decision is not supported by the weight of the evidence, and it makes sense only if fabricated testimony is credited and all inferences are drawn in the NLRB's favor.

[00:01:08] Speaker 01:
The court should not have confidence in or should it show deference to an administrative process that relies on evidence from someone who fabricated evidence.

[00:01:17] Speaker 01:
And that's the first issue before the court.

[00:01:19] Speaker 01:
The case starts with a supposed threat made on November 21, 2013.

[00:01:22] Speaker 01:
The employee, Michael Tram, was a temporary carpenter.

[00:01:28] Speaker 01:
He was hired from the hall for a short-term project, installing steel plate guards over the lock and latch of gesturing doors.

[00:01:35] Speaker 01:
The employees were in a safety meeting.

[00:01:36] Speaker 01:
15 to 20 others were present.

[00:01:39] Speaker 01:
According to him and one other witness, an operating engineer named Fred Tenney.

[00:01:44] Speaker 01:
Tenney opened the meeting by complaining about the possibility that he could be exposed to secondhand marijuana smoke while working in guest rooms.

[00:01:52] Speaker 01:
They asked the department director, Ray Cordell, to give a procedure.

[00:01:56] Speaker 01:
Cordell told them to call their, quote, senior watch, which is the name of the line level supervisor in the facilities department.

[00:02:03] Speaker 01:
According to Schramm and Tenney's testimony, they asked for clarification.

[00:02:07] Speaker 01:
And it is at this point that according to them, Cordell got mad.

[00:02:11] Speaker 01:
His face supposedly turned red.

[00:02:13] Speaker 01:
He supposedly threatened Schramm by saying, quote, maybe we just don't need you anymore.

[00:02:23] Speaker 01:
And then, almost like a movie, Tenney supposedly said, that sounded like a threat.

[00:02:28] Speaker 01:
to which Schramm replied, that didn't sound like a threat, that was a threat.

[00:02:34] Speaker 01:
And that was the testimony at the trial.

[00:02:37] Speaker 01:
During the hearing, Tenney testified that he walked out of this meeting, logged into the facility department's work order database called Hot Sauce, and immediately made an entry, quote, Wraith-threatened carpenter.

[00:02:49] Speaker 01:
Schramm claimed that he and Tenney discussed this entry and that Tenney even gave him the work order number so that it could be accessed later on when they also discussed filing claims with OSHA and other administrative agencies over the same threat.

[00:03:04] Speaker 01:
And here's the thing, anyone who's done trial work knows that the evidence I just described, a contemporaneous written note transcribed into the company's work order system

[00:03:14] Speaker 01:
is pure gold.

[00:03:15] Speaker 01:
It is the best kind of corroborative evidence that could be produced during a hearing.

[00:03:21] Speaker 01:
It was perfect.

[00:03:23] Speaker 01:
And it was presented strategically by the NLRB during the hearing.

[00:03:26] Speaker 01:
It wasn't disclosed before the hearing began.

[00:03:29] Speaker 02:
The NLRB didn't... You know, as my understanding is correct, you don't have a right to engage in any discovery before the hearing.

[00:03:39] Speaker 01:
That's absolutely right.

[00:03:41] Speaker 02:
But what I would suggest... So you're saying you didn't know

[00:03:44] Speaker 02:
before the hearing that Tenney was going to testify that he made an entry.

[00:03:50] Speaker 01:
That's right.

[00:03:51] Speaker 01:
On page 24 of our brief, we cite the complaint allegation.

[00:03:56] Speaker 01:
The LRB is not even required to disclose the date the alleged threat was made.

[00:04:00] Speaker 01:
The complaint just said it happened in late November.

[00:04:03] Speaker 01:
My point is that

[00:04:05] Speaker 01:
In normal practice, if such a record existed, the NLRB would have subpoenaed that record.

[00:04:12] Speaker 01:
It didn't do that.

[00:04:13] Speaker 01:
And it didn't disclose the existence of this supposed record in the country otherwise.

[00:04:19] Speaker 02:
But after he so testified, how many days was this hearing, I forgot?

[00:04:25] Speaker 01:
Three.

[00:04:26] Speaker 02:
You didn't ask for a postponement or an adjournment so that you could

[00:04:31] Speaker 02:
compile all the records for November.

[00:04:36] Speaker 02:
You said there were 12,000 or something.

[00:04:38] Speaker 01:
That's right.

[00:04:39] Speaker 01:
No, I didn't.

[00:04:40] Speaker 01:
I went straight to the Circus Circus Hotel and pulled the records from November 21st because when Mr. Tenney testified to that effect,

[00:04:48] Speaker 01:
I set the hook to see if he really believed it was November 21st.

[00:04:53] Speaker 01:
He was certain.

[00:04:54] Speaker 01:
He confirmed that certainty to the ALJ when she questioned him.

[00:04:58] Speaker 01:
So I went and got the record, and the record wasn't what he said it said.

[00:05:04] Speaker 01:
It didn't say, rape, threat, and carpenter.

[00:05:06] Speaker 01:
It actually, being the only condecord of any conversation that took place that day, corroborated all of the company's witnesses.

[00:05:13] Speaker 01:
The ALJ disregarded that contemporaneous note on the grounds that he may have thought it was a different day, but that wasn't justified given the questioning.

[00:05:23] Speaker 01:
And I think it's also important.

[00:05:24] Speaker 02:
When did the ALJ come up with that rationale that it might have been a different day?

[00:05:29] Speaker 01:
When she issued her decision.

[00:05:31] Speaker 02:
So that's the first time?

[00:05:33] Speaker 01:
That's exactly right.

[00:05:34] Speaker 01:
And I'll note that the general counsel did not recall Mr. Tenney to claim that he may have made a mistake.

[00:05:40] Speaker 02:
And it was after the ALJ opinion that you asked for the record to be reopened so you could introduce all of the documents for no member.

[00:05:50] Speaker 01:
That's exactly right.

[00:05:52] Speaker 01:
And those records were voluminous, but they demonstrate that what Mr. Tenney said wasn't true.

[00:06:00] Speaker 01:
And what I'll note is that he prepared with the general counsel's lawyer at his house before the hearing began.

[00:06:07] Speaker 01:
I'm not suggesting anything improper took place, but what I am suggesting is that, and this testimony was elicited on direct,

[00:06:15] Speaker 01:
He didn't make a mistake.

[00:06:18] Speaker 01:
This was a calculated intent to deceive the ALJ.

[00:06:22] Speaker 01:
And it was calculated, it was even more, it was weightier because by alleging that a record existed within the company's record-keeping system,

[00:06:32] Speaker 01:
Had we not been able to obtain that record before the close of the trial, there would have been an adverse inference entered against the company.

[00:06:39] Speaker 01:
There was no reason for us to get 12,000 records when he stated with certainty that the threat was supposedly made on November 21st.

[00:06:47] Speaker 01:
We found a record from that date that said not only did what he said was false, that he had made a calculated effort to lie to the ALJ, but also that it corroborated what all of our witnesses testified to during the hearing.

[00:07:02] Speaker 00:
So what exactly would have happened then if the record was reopened?

[00:07:05] Speaker 00:
Because you knew that the hot sauce records were an issue, right?

[00:07:08] Speaker 00:
Pardon me?

[00:07:08] Speaker 00:
You knew that the hot sauce records were an issue.

[00:07:12] Speaker 01:
We knew that the hot sauce record for that date, November 21st, was an issue.

[00:07:18] Speaker 01:
And what I would suggest is that this is the only case I've ever been involved in where a witness under oath

[00:07:28] Speaker 01:
misstated, purposefully misstated what he put into a record.

[00:07:32] Speaker 01:
The ALJ excused him from that misstatement on the grounds that he may have made a mistake and it may have been a different date.

[00:07:39] Speaker 01:
Adding in the additional documents would show that he didn't make any mistake at all.

[00:07:46] Speaker 01:
It's possible, I suppose, well, the ALJ said in her decision, she would have credited him anyway.

[00:07:52] Speaker 01:
I've never seen a situation where an ALJ or any other finder of fact has credited the testimony of a witness who lied under oath.

[00:08:01] Speaker 01:
that whether there's reasons that the ALJ supplied in her decision for doing so, that's not a preponderance of the evidence, that's not sufficient evidence, particularly when this individual, Mr. Tenney, was the only witness who corroborated the charging party, and the ALJ credited the charging party, Mr. Schramm and Mr. Tenney, because their testimony was internally consistent.

[00:08:23] Speaker 01:
That was the primary basis for crediting and giving weight to both of those individuals' testimony.

[00:08:29] Speaker 00:
I don't understand what you mean when you say that you don't know of a case where somebody has credited the testimony of somebody who lied under oath, because it isn't the question whether there was a lie under oath.

[00:08:37] Speaker 00:
Well, I don't think that's in question.

[00:08:40] Speaker 00:
What exactly is unquestionably the lie that, oh, the particular date?

[00:08:44] Speaker 00:
Is that what you're talking about?

[00:08:45] Speaker 00:
That is the particular date.

[00:08:46] Speaker 01:
But it was, yeah, but when that allegation was made during the hearing,

[00:08:52] Speaker 01:
There wasn't any question about what date it took place, nor did, as I said, nor did General Counsel recall Mr. Tenney to say that maybe it happened on a different date.

[00:09:01] Speaker 01:
The complaint alleges the threat happened at the end of November 2013.

[00:09:07] Speaker 01:
Mr. Schramm and Mr. Tenney both claimed that it happened in the safety meeting that was the last safety meeting on the Thursday before Thanksgiving.

[00:09:15] Speaker 01:
That leads to November 21st, 2013.

[00:09:17] Speaker 01:
The ALJ asked Mr. Tenney, are you sure it's that date?

[00:09:22] Speaker 01:
And he said, yes, I know because I was there.

[00:09:25] Speaker 01:
I don't think that the date was in dispute.

[00:09:26] Speaker 01:
So when the ALJ suggested that, well, maybe he made a mistake, that wasn't justified by the record.

[00:09:32] Speaker 01:
It wasn't permitted by any reasonable inference.

[00:09:35] Speaker 01:
an ALJ backing into a credibility determination because she apparently found the person personally persuasive.

[00:09:46] Speaker 01:
I'm almost out of time.

[00:09:47] Speaker 01:
I do want to skip ahead to one other issue, the wine garden allegation.

[00:09:51] Speaker 01:
And I would add that the discharge allegation made the company's termination of Mr. Schramm, it relies completely on the threat allegation.

[00:10:03] Speaker 01:
Absent that threat, there's no evidence of animus in the record.

[00:10:06] Speaker 01:
With respect to the Weingarten allegation, I'll note that one of the members of the board dissented from the board's decision, and he explained that that was because Mr. Schramm never actually requested a representative.

[00:10:20] Speaker 01:
And I'll note that Weingarten is not Miranda.

[00:10:23] Speaker 01:
Mr. Schramm showed up to the interview

[00:10:27] Speaker 01:
knowing that he had called the union, the union representative wasn't there, he chose to go forward anyway.

[00:10:33] Speaker 01:
There's nothing wrong with what the employer did.

[00:10:36] Speaker 01:
Weingarten didn't require the employer to stop the interview and help him find a representative when he knew that his representative wasn't available and he didn't request alternative representation.

[00:10:47] Speaker 01:
Weingarten, like I said, is not Miranda.

[00:10:49] Speaker 01:
It's subject to the practicalities of... I don't understand that argument.

[00:10:53] Speaker 00:
So what he said was,

[00:10:55] Speaker 00:
I called the union three times and nobody showed up.

[00:10:57] Speaker 00:
I'm here without representation.

[00:10:58] Speaker 00:
Supposing they went on and said, I wish I had a representation.

[00:11:02] Speaker 01:
Would you still be making the same argument?

[00:11:04] Speaker 01:
No.

[00:11:05] Speaker 01:
I would say, if he said, I wish that I had representation, then we would have said, do you want representation?

[00:11:13] Speaker 01:
If so, you have three options.

[00:11:15] Speaker 01:
We can stop there.

[00:11:16] Speaker 00:
So then everything just turns on whether it was arbitrary for the board to conclude, the majority of the board to conclude, than when he said,

[00:11:24] Speaker 00:
nobody showed up, I'm here without representation, he signaled that he would like representation, right?

[00:11:30] Speaker 00:
Because you agree that if you conclude that that's a signal that he would like representation, then the way things proceeded from there were out of step with Weingarten.

[00:11:39] Speaker 01:
Well, I don't agree with the factual conclusions, though.

[00:11:43] Speaker 01:
that were reached, all of our witnesses said that he didn't make such a request.

[00:11:47] Speaker 01:
But when you say signal, if he had actually said, I am requesting a representative or I wish that I had a representative, then yes, I agree that Winegarden would have been violated.

[00:11:57] Speaker 00:
So the way you view it then is that you have to actually ask for a representative.

[00:12:01] Speaker 00:
It's not enough to indicate that you would like a representative.

[00:12:03] Speaker 01:
It depends on what the indication is, I suppose.

[00:12:08] Speaker 01:
But yes, I think some sort of clear statement is necessary.

[00:12:10] Speaker 00:
You think there needs to be a clear statement, I see.

[00:12:12] Speaker 01:
Otherwise, the rule's not, it's incapable of application in a workplace setting.

[00:12:16] Speaker 01:
Again, we're not dealing with police or anything like Miranda.

[00:12:19] Speaker 01:
This is just a workplace where the right to count representation under Weingarten flows from the duty to bargain.

[00:12:26] Speaker 01:
It doesn't flow from the Constitution or any other statute.

[00:12:29] Speaker 00:
But that's the whole point of the board's cases.

[00:12:33] Speaker 00:
They don't accept that there needs to be a clear statement.

[00:12:35] Speaker 00:
They say, no magic or special words are required to satisfy this element of the Montgomery rationale.

[00:12:41] Speaker 01:
I don't disagree that no magic words are required, but there needs to be some manifestation of a request.

[00:12:46] Speaker 01:
He didn't make a request.

[00:12:48] Speaker 01:
He said, I called the union.

[00:12:50] Speaker 01:
The union's not here.

[00:12:52] Speaker 01:
If he didn't want to go forward, he could have requested time to find an alternative representative.

[00:12:58] Speaker 01:
As the Montgomery Ward case cited in our brief, as well as Coca-Cola's say, if the chosen representative is unavailable, the board law imposes the burden on the employee to request alternative representation.

[00:13:12] Speaker 00:
When he's looking for a particular representative as opposed to representation generally.

[00:13:15] Speaker 01:
Well, the evidence is that he contacted Richard Williams, the secretary treasurer of the Carpenters Union, and that was the representative that he requested attend the meeting.

[00:13:25] Speaker 01:
So it doesn't say – he never claimed one way or the other who he was attempting to have represent him at this hearing, but he called one person.

[00:13:34] Speaker 01:
That one person didn't come.

[00:13:36] Speaker 01:
As Chairman Ring set forth in his dissent,

[00:13:40] Speaker 01:
The shop steward, Jerry Mung, who would have been available to him, was in the carpenter shop at that time.

[00:13:46] Speaker 01:
It would have been very easy for Mr. Schramm to request an alternative representative if he wished to do so.

[00:13:51] Speaker 01:
It shouldn't be... Weingarten can't place a burden on the employer to guess what an employee wishes to have.

[00:14:01] Speaker 02:
The way the Supreme Court defined the right is it's the right of the employee to refuse to submit to an interview.

[00:14:09] Speaker 02:
without representation.

[00:14:11] Speaker 02:
So the question is, did he refuse to submit to an interview without representation?

[00:14:18] Speaker 01:
He did not.

[00:14:19] Speaker 01:
And he did not refuse to submit to an interview without representation.

[00:14:23] Speaker 01:
He showed up.

[00:14:24] Speaker 01:
There was no representation available.

[00:14:26] Speaker 01:
He didn't request representation.

[00:14:28] Speaker 01:
He proceeded with the interview.

[00:14:29] Speaker 00:
But that would have been the case even if he'd asked.

[00:14:31] Speaker 00:
If he said, I wish there were a representative here, do you think that at that point

[00:14:38] Speaker 00:
The company could have continued questioning him, and then the response could have been, well, he didn't refuse to participate without a representative because he answered the questions.

[00:14:45] Speaker 01:
Well, no, once he actually requests... That can't be right, right?

[00:14:48] Speaker 01:
No, I don't agree with that.

[00:14:49] Speaker 01:
Once he requests a representative, the employer has a couple of options.

[00:14:53] Speaker 01:
You know what those options are.

[00:14:54] Speaker 01:
And had he done that, that's exactly what would have happened.

[00:14:57] Speaker 00:
Right.

[00:14:58] Speaker 00:
So everything turns on whether the words that both the majority and the dissent agree were stated.

[00:15:04] Speaker 00:
were enough to signal an interest in a representative.

[00:15:06] Speaker 00:
And I understand your view.

[00:15:08] Speaker 00:
Your view is that they weren't.

[00:15:10] Speaker 01:
But what I would argue is that the issue is not whether or not the board's application of Weingarten was arbitrary.

[00:15:16] Speaker 01:
The board is applying Supreme Court precedent.

[00:15:19] Speaker 01:
And the board's application of Supreme Court precedent under Weingarten isn't entitled to deference.

[00:15:25] Speaker 01:
I'm sorry, what was the last point?

[00:15:26] Speaker 01:
The board's application of Weingarten, which is a Supreme Court decision, is not entitled to deference.

[00:15:33] Speaker 01:
It's an interpretation of Weingarten.

[00:15:35] Speaker 01:
That's right, that's right.

[00:15:36] Speaker 04:
But doesn't in part the interpretation turn on the credibility determination made by the ALJ about

[00:15:42] Speaker 01:
It does.

[00:15:44] Speaker 01:
From our perspective, Mr. Schramm's testimony shouldn't be credited at all.

[00:15:49] Speaker 01:
But even if it were credited, the best version of events is that he showed up and said, I called the union three times, even though he only called it twice.

[00:15:58] Speaker 01:
I called the union three times, and no one's here.

[00:16:01] Speaker 00:
That's it.

[00:16:01] Speaker 00:
And your view is that just that can't be seen reasonably by the board as an indication of an interest in representation.

[00:16:09] Speaker 00:
That's right.

[00:16:11] Speaker ?:
Thank you.

[00:16:19] Speaker 05:
May it please the court, Kelly Isbell here on behalf of the National Labor Relations Board.

[00:16:24] Speaker 05:
This case is primarily a case where circus is challenging the board's credibility determinations.

[00:16:30] Speaker 05:
And the court does not overturn those determinations unless they're found to be hopelessly incredible.

[00:16:36] Speaker 05:
And on this record, they just are not.

[00:16:39] Speaker 05:
If we start with the threat, not only did Tinney and Schramm mutually corroborate each other's testimony, but the ALJ explained her findings.

[00:16:48] Speaker 05:
They both answered in a forthright and honest manner.

[00:16:52] Speaker 05:
They were non-argumentative and they answered her question or the questioning honestly.

[00:16:58] Speaker 05:
She also said that only Cordell, of all the witnesses put on by the company, only Cordell said he did not make the threat.

[00:17:05] Speaker 05:
The other company witnesses either were not asked or couldn't remember whether the threat was me.

[00:17:12] Speaker 05:
So there is no rebuttal testimony saying that the threat didn't happen on the company's side.

[00:17:17] Speaker 05:
What we have are two witnesses who say it did.

[00:17:21] Speaker 05:
And that's enough for the judge to find that the threat occurred.

[00:17:24] Speaker 02:
But there's pretty powerful evidence on the other side that you're not mentioning, namely that there was no report

[00:17:34] Speaker 02:
of the sort that Taney described.

[00:17:37] Speaker 02:
And that's pretty powerful evidence that he was not either recalling correctly or telling the truth.

[00:17:44] Speaker 02:
And the ALJ refused to consider that.

[00:17:47] Speaker 02:
It refused to reopen.

[00:17:49] Speaker 05:
The ALJ was not asked to reopen, Your Honor.

[00:17:52] Speaker 05:
The board was asked to reopen.

[00:17:53] Speaker 05:
And the board does not reopen when the evidence is not newly discovered or for merely impeaching a witness.

[00:18:00] Speaker 05:
Those are standard board rules.

[00:18:02] Speaker 05:
But in this case, the ALJ explained why there were a couple of dates of hot sauce records entered.

[00:18:12] Speaker 05:
The issue of which date the threat occurred was in question during the hearing because Tenney might have said it was the 21st, but Schramm said it could have been the week before Thanksgiving or maybe the week of Thanksgiving.

[00:18:26] Speaker 05:
I think we had our Thursday safety meetings on Wednesday.

[00:18:29] Speaker 05:
Cordell, the chief engineer himself, insisted that it was December 6th.

[00:18:33] Speaker 05:
So there was a question about which time this whole discussion about marijuana smoke occurred.

[00:18:38] Speaker 05:
But the ALJ explained that even if Tenney had never made that entry, that he misremembered what happened, she believed that the testimony he and Sram gave was so compelling that she believes them.

[00:18:54] Speaker 05:
She didn't think Tenney was somehow creating, I don't even know that they

[00:18:59] Speaker 02:
put this below that Tenney was trying to put something over on the judge or that he was... I should have asked this of the counsel for the employer, but what exactly is the function that this whatever hot something serves?

[00:19:18] Speaker 02:
What is it?

[00:19:19] Speaker 05:
It's probably a better question for Mr. Trimmer, but as I flip through the records and there are things like Tenney would record every time he went to

[00:19:27] Speaker 05:
a hotel room to fix the air conditioning.

[00:19:29] Speaker 02:
I mean, anything he did, he made a... It's just the employees that make entries?

[00:19:34] Speaker 05:
I'm not even... I think probably anyone who has a Blackberry.

[00:19:36] Speaker 05:
Mr. Schramm didn't have a company that issued Blackberries, so he couldn't.

[00:19:40] Speaker 05:
And housekeeping would put in a request for... You know, the curtains are down in room 301, and somebody would see it and go do it and make a note.

[00:19:50] Speaker 05:
Those kinds of things are what I read in the record, Your Honor.

[00:19:53] Speaker 02:
Is it sort of a diary, is that what it is?

[00:19:57] Speaker 05:
I guess, or maybe a record of who's doing what at what time.

[00:20:02] Speaker 02:
I'm just wondering why anybody, why Tony would even record the incident.

[00:20:08] Speaker 05:
For some reason, Mr. Tenney recorded when he went to safety meetings, or they also had pre-shift meetings.

[00:20:14] Speaker 05:
I think probably his day is productivity.

[00:20:17] Speaker 05:
I'm not entirely sure.

[00:20:18] Speaker 05:
And I don't know if other people made the same notations.

[00:20:21] Speaker 05:
But I do know that ALJ was very careful to explain why she did not consider Mr. Tenney to have committed perjury by misremembering the substance of his hot sauce memorandums.

[00:20:35] Speaker 05:
So that's one issue of credibility.

[00:20:38] Speaker 05:
We also have the wine garden issue.

[00:20:41] Speaker 05:
And the ALJ found there was no dispute that Schramm made the statements he made about requesting a union representative, aside from the fact of whether or not we decide that's a request under wine garden.

[00:20:55] Speaker 05:
But there was no dispute he made those statements.

[00:20:59] Speaker 05:
Mauer was one of the HR associates who was in the meeting.

[00:21:02] Speaker 05:
She said he made the statements, put it at the end.

[00:21:05] Speaker 05:
Mr. Cordell, the chief engineer, said he didn't request a union steward, which was undisputed.

[00:21:11] Speaker 05:
Nobody said he requested a union steward.

[00:21:14] Speaker 00:
Well, I don't think there is a dispute about what was said.

[00:21:16] Speaker 00:
I mean, I know there's an argument that's been made that you shouldn't credit a testimony, but the principal argument is even if you do credit the testimony, that's not enough.

[00:21:25] Speaker 00:
Right.

[00:21:26] Speaker 05:
And we, of course, think it is.

[00:21:29] Speaker 05:
as you only have to, the employee has to use language reasonably calculated to apprise the employer that he wants assistance.

[00:21:38] Speaker 05:
And I don't know how you could listen to those words and not know that SRAM wanted assistance.

[00:21:42] Speaker 05:
I called the union three times, nobody showed up, I'm here without representation.

[00:21:47] Speaker 05:
There's nothing else those words mean.

[00:21:50] Speaker 05:
And once that request is made, the employer has to stop and give the three options.

[00:21:55] Speaker 00:
So it just seems to me that when you read those words, it both

[00:21:58] Speaker 00:
Both sides, in some sense, seem to be overstating their case.

[00:22:02] Speaker 00:
Because when you read those words, it sort of depends on the impression you're left with after those words have been said.

[00:22:08] Speaker 00:
Because he could have followed that up by saying, and obviously what I'm saying by that is it'd be great, in my mind, if there were a representative here.

[00:22:14] Speaker 00:
If that's what that communicates, then you're in very good stead.

[00:22:18] Speaker 00:
If what he followed up with is, and what I'm communicating by that is, even though I don't have a representative, let's go.

[00:22:25] Speaker 00:
Well then, you wouldn't be in such good stead.

[00:22:27] Speaker 00:
And so it seems like he said some words that we, for our purposes, assume is the state of the record.

[00:22:35] Speaker 00:
And then the question is, what's the impression that's left by that?

[00:22:40] Speaker 05:
Before I, let me just say first of all that this is exactly the kind of question that the court leaves to the board's deference, determining whether or not those kinds of statements meet the One Garden standard.

[00:22:52] Speaker 05:
And employees, I tried to find a case that said exactly the same thing, but of course nobody does.

[00:22:57] Speaker 05:
Employees say wildly different things.

[00:23:00] Speaker 05:
I need a witness.

[00:23:01] Speaker 05:
Well, what does that mean?

[00:23:02] Speaker 05:
You've got witnesses.

[00:23:04] Speaker 05:
There are five people in this room.

[00:23:06] Speaker 05:
Or I need someone who can explain this to me.

[00:23:08] Speaker 05:
Well, the HR people are here, they can explain it to you.

[00:23:11] Speaker 00:
And those statements are actual cases where the board has found that that was sufficient to trigger Weingarten?

[00:23:18] Speaker 05:
Yes, Your Honor.

[00:23:19] Speaker 05:
So here, even in cases where employees don't mention the union or representation, the board has found a Weingarten violation.

[00:23:25] Speaker 05:
Here, Schramm has made it clear that he is looking for union assistance.

[00:23:31] Speaker 05:
And I think that's enough under the board's rules.

[00:23:34] Speaker 00:
But whether you think it's enough or not.

[00:23:37] Speaker 05:
The board thinks it's enough.

[00:23:38] Speaker 05:
I'm sorry.

[00:23:38] Speaker 00:
Right.

[00:23:38] Speaker 00:
The board must have thought it was enough because the board said it was.

[00:23:41] Speaker 00:
And then the question for us is, in reviewing that, whether it was arbitrary for the board to reach that conclusion.

[00:23:47] Speaker 00:
Is that what we're looking at?

[00:23:49] Speaker 00:
What's the question before us?

[00:23:51] Speaker 05:
Yes, because you're looking at the board's factual inferences under wine garden.

[00:23:57] Speaker 05:
The board isn't really interpreting wine garden as such.

[00:23:59] Speaker 05:
It's applying wine garden to the facts of this case as it does in every wine garden case.

[00:24:05] Speaker 00:
And when we do that, what are we asking?

[00:24:12] Speaker 05:
I think you're asking whether or not the board, we always say reasonably, whether or not the board reasonably applied the facts of this case to the Weingarten standard.

[00:24:21] Speaker 05:
Was it reasonable?

[00:24:22] Speaker 05:
This particular question's not substantial evidence, so it's whether the board properly determined that that was a request under Weingarten.

[00:24:30] Speaker 00:
So if it's not substantial evidence in your view, then it's an arbitrary capricious question.

[00:24:33] Speaker 05:
I think so, Your Honor.

[00:24:35] Speaker 04:
So under Weingarten, an employee can choose to go forward without a union representative.

[00:24:41] Speaker 04:
Can choose.

[00:24:42] Speaker 04:
With the meeting.

[00:24:43] Speaker 04:
Yes.

[00:24:43] Speaker 04:
Right.

[00:24:43] Speaker 04:
And so, I mean, does your position, though, sort of require, essentially, an employer to make some kind of prophylactic statement?

[00:24:52] Speaker 05:
Yes.

[00:24:52] Speaker 04:
Yes.

[00:24:53] Speaker 04:
Let's assume that the request was made.

[00:24:55] Speaker 04:
Everybody agrees.

[00:24:56] Speaker 04:
Oh, no.

[00:24:57] Speaker 04:
Just in this case.

[00:24:57] Speaker 04:
So he said what he said.

[00:24:59] Speaker 04:
I mean, is the employer then required to clarify what was meant by that?

[00:25:05] Speaker 04:
To clarify.

[00:25:06] Speaker 05:
I mean, if the employee has

[00:25:12] Speaker 05:
given sufficient notice, then yes.

[00:25:15] Speaker 04:
So I understand your view, the board's view, is that they've given sufficient notice, but then they also choose to go ahead with the meeting, which is permissible under Weingarten.

[00:25:24] Speaker 05:
It's permissible if they give the employee the options.

[00:25:28] Speaker 05:
And remember, the options are not onerous.

[00:25:30] Speaker 05:
One is you can grant the request.

[00:25:32] Speaker 05:
Shram didn't know that Jerry Mong, the union steward, was in his office.

[00:25:35] Speaker 05:
Shram no longer had a key or a badge.

[00:25:37] Speaker 05:
He could not go to the carpenter's shop, where evidently Mr. Mong was.

[00:25:40] Speaker 05:
I learned that reading the transcript.

[00:25:45] Speaker 05:
So one is you can grant the request and somebody calls the union steward and he comes forward.

[00:25:50] Speaker 05:
Two, you can deny the request, end of interview, and you get to make your decision on discipline based on what you already know.

[00:25:59] Speaker 05:
Or three, you have the

[00:26:02] Speaker 05:
the middle option, which is giving the employee the request to go forward without representation or to stop.

[00:26:08] Speaker 05:
Isn't that implicitly what happened?

[00:26:11] Speaker 05:
The third option?

[00:26:12] Speaker 05:
Because Weingarten is set up to sort of balance the inequities of power in these kind of situations, the employer needs to give the employee the choice.

[00:26:20] Speaker 05:
He doesn't know.

[00:26:21] Speaker 04:
Are there any board cases or cases from the circuit suggesting that the employer has an affirmative duty to spell out those options?

[00:26:32] Speaker 05:
All of the Weingarten cases say that.

[00:26:34] Speaker 00:
I didn't even think the employer disputed that if there was, in fact, a request here, if he had said exactly what he said and he followed up by saying, and therefore I wish there were a representative present, I don't think anybody disputes, as far as I know.

[00:26:46] Speaker 00:
But correct me if you're wrong.

[00:26:47] Speaker 05:
But where there's an uncertainty is the employer.

[00:26:50] Speaker 05:
The problem is that the cases don't come to the board unless there is an uncertainty.

[00:26:57] Speaker 05:
So once the board decides.

[00:26:59] Speaker 05:
The employer's acting at its peril.

[00:27:01] Speaker 05:
as it does in a lot of cases.

[00:27:05] Speaker 05:
But if it doesn't, there are very few blind-guarding cases where the employee is explicitly clear and says, I want a unit representative.

[00:27:14] Speaker 05:
They usually say something more ambiguous.

[00:27:18] Speaker 00:
And then the employers... I mean, I thought the way the decision tree works, and correct us if I'm wrong about this, I thought the way the decision tree works is the first question is whether the request has been made.

[00:27:29] Speaker 00:
That's just...

[00:27:32] Speaker 00:
There may be cases of uncertainty, like this one, where it's not an affirmative request.

[00:27:38] Speaker 00:
You would have to agree, a request could have been made more clearly than this was.

[00:27:42] Speaker 00:
So it is uncertain in some sense.

[00:27:46] Speaker 00:
And then the way the decision tree worked is, the first question is, was what was said sufficient to apprise the employer of an interest in representation?

[00:27:54] Speaker 00:
And if that's true, then the prophylaxis does kick in.

[00:27:56] Speaker 00:
That's just the way Weingarten works, is at that point, it's incumbent upon the employer to issue

[00:28:02] Speaker 00:
Choices.

[00:28:03] Speaker 00:
So everything turns on whether, at the first step, what everybody agrees was the statement that was made was enough to signal the interest in a representative.

[00:28:12] Speaker 05:
Absolutely.

[00:28:13] Speaker 00:
Is that the way you look at it?

[00:28:14] Speaker 05:
Yes.

[00:28:15] Speaker 00:
That is the way you see it.

[00:28:16] Speaker 00:
Absolutely.

[00:28:17] Speaker 05:
I have gone way over my time.

[00:28:20] Speaker 00:
Are there further questions?

[00:28:23] Speaker 00:
OK.

[00:28:24] Speaker 05:
Thank you.

[00:28:25] Speaker 00:
Thank you, Council.

[00:28:29] Speaker 00:
Two minutes for a vote.

[00:28:31] Speaker 00:
Thank you.

[00:28:32] Speaker 00:
Do you disagree with that, the way that was laid out in response to Judge Rouse and my questions?

[00:28:40] Speaker 01:
Only slightly.

[00:28:40] Speaker 01:
I don't think that Weingarten requires a prophylactic statement.

[00:28:44] Speaker 01:
Once the request is made, one of three options or one of three things have to occur.

[00:28:49] Speaker 01:
If the request is made, the employer could just grant it.

[00:28:51] Speaker 01:
Or the employer could say, this and nothing else, if you want to represent it, we're not going to interview you.

[00:28:58] Speaker 01:
and say nothing else.

[00:29:00] Speaker 01:
Or the employer could say, we're not going to interview you, period, and discontinue the interview.

[00:29:04] Speaker 01:
All of those things would be permissible.

[00:29:06] Speaker 01:
This sort of three multiple-choice options don't need to be presented to the employer.

[00:29:11] Speaker 00:
But in terms of continuing the interview, I think everybody agrees the employer can't continue the interview without saying anything.

[00:29:18] Speaker 00:
Yes, I agree.

[00:29:19] Speaker 01:
And what I'll say is, you know, typically whether a right has been waived is whether it's knowing and voluntary.

[00:29:26] Speaker 01:
There's no dispute in the record that Aerith Collin, the HR representative, informed Mr. Schramm of his right to obtain a union representative, which is what triggered Mr. Schramm's calls to the Secretary-Treasurer of the Carpenters' Union.

[00:29:38] Speaker 01:
He showed up at the hearing ready to proceed with the interview knowing that no representative was there, and he didn't request an alternative.

[00:29:45] Speaker 01:
The other thing I'll note is Weingarten doesn't have anything to do with the balance of power under the Weingarten decision issued by the Supreme Court.

[00:29:54] Speaker 01:
It flows from the duty to bargain.

[00:29:56] Speaker 01:
The Weingarten representation is necessary to assist the union in prosecuting rights under the collective bargaining agreement.

[00:30:04] Speaker 01:
It doesn't have anything to do with some sort of substantive right that employees have to have assistance during questioning.

[00:30:10] Speaker 01:
The last thing I do want to address is the hot sauce thing.

[00:30:12] Speaker 01:
Hot Sauce is a maintenance database that's used to log every work order in the entire hotel casino.

[00:30:20] Speaker 01:
So if there's a problem with a faucet in the guest room, if a piece of tile is loose down somewhere in the back of the house, all of those things are logged into Hot Sauce and then assigned to the appropriate division within the facilities department.

[00:30:32] Speaker 01:
It's not used to record workplace concerns, workplace complaints, or anything like that.

[00:30:37] Speaker 01:
There would be no reason to ever do any of those things.

[00:30:41] Speaker 02:
Its purpose is... Does it go to a central clearinghouse for if somebody says that faucets are leaking in room 101?

[00:30:51] Speaker 01:
Yeah, the way it works is if the faucet's leaking in 101 inch and that person calls the front desk, the front desk then makes an entry into hot sauce, and it's automatically routed to a member of the plumbing department.

[00:31:05] Speaker 01:
If no one in the plumbing department sees it on their list of work orders and takes it, a manager in the plumbing department would then assign that task order to someone.

[00:31:14] Speaker 01:
But in terms of what happens with the work order after that,

[00:31:17] Speaker 01:
It's not reviewed in any substantive way by management.

[00:31:21] Speaker 01:
It's that someone except the work order hasn't been fixed.

[00:31:25] Speaker 01:
But any substantive entries related to what happened during the fixing of that plumbing problem aren't reviewed.

[00:31:33] Speaker 01:
Thank you for your time.

[00:31:34] Speaker 01:
Thank you, Council.

[00:31:35] Speaker 01:
Thank you, Council.

[00:31:36] Speaker 01:
The case is submitted.