[00:00:55] Speaker 02:
Good morning.

[00:00:57] Speaker 03:
Do I have that right?

[00:00:57] Speaker 02:
Didelberg.

[00:00:58] Speaker 03:
Didelberg, thank you.

[00:01:01] Speaker 02:
Good morning and may it please the court, Joshua Didelberg, appearing for Conway.

[00:01:06] Speaker 02:
I'm going to focus my presentation on the situations involving Mr. Romero and the implied threat of violence by Mr. Camarena.

[00:01:16] Speaker 02:
The board is not entitled to deference in this case because its conclusions are not based on substantial evidence in the record adequately considering opposing record, excuse me, opposing evidence in the record as a whole and also not following its precedent in the courts.

[00:01:35] Speaker 02:
With respect to Mr. Romero,

[00:01:39] Speaker 02:
Conway's National Safety Program is designed to prevent future accidents.

[00:01:45] Speaker 02:
It focuses on the preventability of accidents.

[00:01:48] Speaker 02:
And Mr. Romero is ultimately discharged when, in an investigation where he is being shown drive cam video,

[00:01:56] Speaker 02:
He does not accept even partial responsibility or agree that he was distracted in any way by manipulating an electronic device about a second while he's careening down the highway being passed by another tractor trailer.

[00:02:15] Speaker 02:
He shows no self-awareness or any recognition that this is in any way improper contrary to company policy, indeed unlawful in California.

[00:02:26] Speaker 02:
This court's precedent holds that if an employer acts based upon reasonable business judgment, then it hasn't engaged in discrimination under the NLRA.

[00:02:41] Speaker 02:
And Conway's actions here are at least minimally reasonable.

[00:02:46] Speaker 02:
The board does not contest that

[00:02:50] Speaker 02:
the drive cam video showed that indeed he was manipulating an electronic device a second before the accident occurred, or that he was veering into another lane, whereas he, in his accident reports, at least four times, including the hearing, denies any culpability in any respect.

[00:03:14] Speaker 03:
You just characterized

[00:03:16] Speaker 03:
it as undisputed that he was veering into another lane, I thought that nobody was contending that he was actually veering into another lane.

[00:03:25] Speaker 03:
That the other truck had reached the outside of its line and that

[00:03:32] Speaker 03:
that the issue is whether he was veering closer to that side of his life.

[00:03:36] Speaker 02:
Yes, he was veering closer.

[00:03:37] Speaker 02:
He was veering closer to that.

[00:03:38] Speaker 02:
Okay.

[00:03:38] Speaker 03:
I mean, that was a very much contested issue, so I wanted to make sure you were... Yes, you know, right.

[00:03:41] Speaker 02:
But from the out... I mean, the issue, again, is preventability and distraction... Right.

[00:03:45] Speaker 02:
...in terms of the company's policies.

[00:03:48] Speaker 02:
Understood.

[00:03:48] Speaker 02:
From the outset, in Respondent 20, for example, the initial email from Mr. Anderson, the safety manager, is that he's veering... The two trucks are veering towards each other.

[00:03:57] Speaker 03:
Getting close to one another.

[00:03:58] Speaker 02:
Right.

[00:03:59] Speaker 02:
And he is not...

[00:04:01] Speaker 02:
disclosing to the company that he has an electronic device and that he's veering.

[00:04:08] Speaker 01:
The problem I'm having with the argument that you're making is that the reason for the firing was falsification.

[00:04:18] Speaker 01:
Yes.

[00:04:20] Speaker 01:
It wasn't that he

[00:04:26] Speaker 01:
didn't comply with company policy with respect to handheld devices, was that he falsified the report.

[00:04:37] Speaker 01:
And what the board found was that in context, that was pretextual because the alleged falsity wasn't really false.

[00:04:58] Speaker 01:
for materially false.

[00:05:00] Speaker 01:
So it seems like you're trying to kind of reconstruct the analysis here.

[00:05:09] Speaker 02:
I'm not attempting to do that, Your Honor.

[00:05:11] Speaker 02:
I'm simply just highlighting the fact that in an investigation, he was given a fair opportunity to explain himself, and he didn't waver from that position.

[00:05:21] Speaker 02:
It's undisputed.

[00:05:22] Speaker 02:
I mean, the board does not contest that falsification under the company's policies includes material emissions and accident reports.

[00:05:31] Speaker 03:
Sounds like he did acknowledge that he was using an iPod.

[00:05:38] Speaker 03:
And indeed, he turned on the camera.

[00:05:41] Speaker 03:
He pulled over and called right away.

[00:05:42] Speaker 03:
So this idea that he's not acknowledging and taking responsibility, I thought he did.

[00:05:47] Speaker 03:
I thought that the dispute was much closer, that they thought he was texting, and he said it was changing music.

[00:05:54] Speaker 02:
In his initial accident report, he does not mention the iPod.

[00:05:57] Speaker 02:
In his report to the safety department, he does not mention the iPod.

[00:06:04] Speaker 02:
And that's the falsification for which he was terminated.

[00:06:08] Speaker 02:
With respect to turning on the camera, if you look at pages 64 and 65 of the Joint Appendix, it's clear that this is not an issue of honesty.

[00:06:23] Speaker 02:
He doesn't know what he's done when the accident occurs.

[00:06:27] Speaker 02:
He doesn't know what the damage is.

[00:06:28] Speaker 02:
He knows it was an accident.

[00:06:30] Speaker 02:
And under the company's policy, under Policy 811, which is in the Joint Appendix, it's also a disciplinary event to fail to report an accident.

[00:06:41] Speaker 02:
So there's no honesty involved, because he doesn't know what's happened at the time that he turns on the camera, what the degree of damage is.

[00:06:50] Speaker 02:
At the time that he turns on the camera.

[00:06:56] Speaker 02:
I'm not sure where that takes you.

[00:07:00] Speaker 02:
Well, you had indicated that he was somehow honest in saving the drive cam video.

[00:07:08] Speaker 02:
What I want to point out, at the time that he saves the drive cam video, he doesn't know the degree of the accident.

[00:07:14] Speaker 02:
If he comes back to the facility and doesn't report an accident, that is also a cause for discipline.

[00:07:22] Speaker 02:
So there's no honesty involved.

[00:07:24] Speaker 02:
He's following policy.

[00:07:25] Speaker 03:
Right, you had characterized him as not taking responsibility for his actions, and it just struck me that there was some taking of responsibility, so I wanted to clarify that in its context.

[00:07:37] Speaker 02:
Well, they have what I would call a layered safety program, which is that they place a great deal of emphasis on accurate reporting of an accident in these reports to the safety department, because they don't have a situation where supervisors are riding along with drivers.

[00:07:54] Speaker 02:
They don't have people watching drive cam in real time.

[00:07:58] Speaker 04:
Can you provide, are there other examples?

[00:08:02] Speaker 04:
One of the things Conway relies on is a lot of the comparator evidence.

[00:08:06] Speaker 04:
Yes.

[00:08:07] Speaker 04:
Is there other, are there other circumstances where a driver has been fired for this similar type of falsification?

[00:08:12] Speaker 02:
There are.

[00:08:13] Speaker 02:
One of the themes of the problem with what the board did here is that they don't adequately address and grapple with the comparator evidence.

[00:08:24] Speaker 02:
they use pretext as an excuse to not grapple with it.

[00:08:29] Speaker 02:
The undisputed, unrebutted evidence in the record is that the company consistently discharges for similar falsifications.

[00:08:38] Speaker 02:
That evidence is unchallenged in the record.

[00:08:42] Speaker 03:
What's your closest comparator that you would have us or

[00:08:45] Speaker 03:
name one or two or three that you would have us look to closest to Romero in terms of misconduct and consequent intersections.

[00:08:55] Speaker 02:
Well, it's all of the ones in 26, but 26i, for example, is a situation which shows that he was treated even more favorably.

[00:09:02] Speaker 02:
Mr. Romero was than another driver, because in that situation, I think it's Mr. Welles, he admits that he did cause an accident at a later stage in the investigation, and they still terminate him.

[00:09:28] Speaker 02:
This is not a 10E situation.

[00:09:30] Speaker 02:
I mean, conceptually, in many ways, this is sort of a garden variety discrimination case under board law.

[00:09:36] Speaker 02:
And as we point out in our brief, not only that, in our exceptions, we raise arguments of reasonability.

[00:09:43] Speaker 02:
And indeed, it's an affirmative defense of the company to cite the reasonableness of its actions.

[00:09:50] Speaker 02:
I was wondering if I could take, I see my light is on, a minute to discuss the situation involving Mr. Plasencia and Mr. Camarena.

[00:09:58] Speaker 02:
This is one of those unusual situations in which the board has engaged in self-contradictory credibility determinations.

[00:10:09] Speaker 02:
There is a discussion involving three people.

[00:10:12] Speaker 02:
The board on pages 611 and 612 of the appendix credit Mr. Rosato where there are credibility disputes between Mr. Camarena and Mr. Placencia.

[00:10:29] Speaker 02:
If you take a look at pages 148 of the record and also 212 to 218 and 428, which is General Counsel 7.

[00:10:40] Speaker 02:
It's very clear that there is only one conversation dealing with the battered wives knock the doors down exchange.

[00:10:50] Speaker 02:
The board's findings are premised entirely on its belief that there are two conversations, one that occurs when Mr. Rosado has left for about seven or eight minutes.

[00:11:01] Speaker 02:
But if you take a look at this evidence, it's very clear that right at the end of the conversation, which is at issue, where the statements that Mr. Placencia is claiming occurred, he asks Mr. Rosato, can I go now?

[00:11:16] Speaker 02:
Am I done now?

[00:11:19] Speaker 02:
It's immediate.

[00:11:20] Speaker 02:
It's clearly right at the end of the conversation.

[00:11:22] Speaker 02:
And Mr. Rosado supports Mr. Camarena's version of events, which the board credits without exception.

[00:11:35] Speaker 03:
Thank you.

[00:11:35] Speaker 02:
Thank you.

[00:11:45] Speaker 03:
Good morning, Mr. Hickson.

[00:11:46] Speaker 00:
Good morning, Your Honors.

[00:11:46] Speaker 00:
May it please the Court?

[00:11:47] Speaker 00:
Michael Hickson for the NLRB.

[00:11:49] Speaker 00:
I'd like to focus on the 8A3 discharge of Mr. Romero, the 24-year employee who led the union's organizing efforts at the facility.

[00:11:58] Speaker 00:
And if I could, I'd like to jump in on a few points that were raised during my friend's presentation.

[00:12:05] Speaker 00:
I think it's important to step back, as I believe Judge Wilkins mentioned, and appreciate the import of the fact that the company has never said that Mr. Romero was suspended or discharged because he drives in an unsafe manner.

[00:12:19] Speaker 00:
In fact, if you look at appendix page 351,

[00:12:22] Speaker 00:
In 352, there's undisputed testimony from Mr. Kuehner that if Mr. Romero would have acknowledged what they felt was his responsibility for the accident and if the falsification issue had not been in play, that the only consequence of his actions in the truck would have been a point assessed and a non-disciplinary coaching.

[00:12:45] Speaker 00:
So this isn't about safety, it's about the claim of falsification.

[00:12:49] Speaker 00:
Additionally, there was some discussion about whether anyone ever said that Mr. Romero veered out of his lane.

[00:12:57] Speaker 00:
I think that's important.

[00:12:59] Speaker 00:
important part of the evidence that supports the board's finding of pretext.

[00:13:04] Speaker 00:
While it's true that the company, in its final accident report and in its disciplinary documents, took the position that Mr. Romero merely drifted to the far right of his lane while the other truck drifted toward him and then there was contact made between the two trucks,

[00:13:21] Speaker 00:
Mr. Anderson in his testimony at the hearing offered a very different picture and said that Mr. Romero veered over into the other lane or crossed over the line into the other lane and struck the other vehicle, whereas vehicle two did not hit Mr. Romero.

[00:13:37] Speaker 00:
So that's in sharp contrast with the company's own disciplinary documents, and it's also at odds with the evidence in the record that there's no way to tell, in fact, by looking at this video, where Mr. Romero's truck was located in his lane.

[00:13:52] Speaker 00:
And Mr. Anderson admitted to that at appendix page 335.

[00:13:57] Speaker 00:
Let's see.

[00:13:59] Speaker 00:
In discussing the point about Mr. Romero's acknowledgement, I just want to clarify, following up on that discussion, that when

[00:14:08] Speaker 00:
Mr. Romero was interviewed, I guess.

[00:14:12] Speaker 00:
They had the conversation on August 20th involving Mr. Anderson, Mr. Swires, Mr. Lee Koon, and Mr. Romero.

[00:14:19] Speaker 00:
He did, in fact, acknowledge at that time that he was owning an iPod and that he had touched it to change the song.

[00:14:28] Speaker 00:
Let's see.

[00:14:28] Speaker 00:
Regarding the comparator evidence, the board didn't refuse to consider that evidence.

[00:14:35] Speaker 00:
The board considered it and properly determined that it was not applicable in this circumstance.

[00:14:42] Speaker 00:
And I think there's a few reasons.

[00:14:44] Speaker 00:
First, as the board found, with respect to the decision to investigate, these other employees presumably were investigated

[00:14:55] Speaker 00:
for a legitimate good faith reason and I guess if I could back up for a minute maybe I should have said this before there's no it's undisputed that the company does not investigate every reported accident that occurs on the road with its trucks and the company put no evidence in the record I think this is also undisputed though my friend can correct me if he thinks that's wrong I think it's also undisputed

[00:15:16] Speaker 00:
that the company put forth no evidence and has never suggested that it has any established criteria or policy or guidelines that determine when it does or does not decide to investigate.

[00:15:27] Speaker 04:
Well, but they did put forward evidence of many different comparable situations where they have conducted such investigations and where they have discharged people for falsification.

[00:15:39] Speaker 00:
They did, Your Honor, but, well, I wouldn't agree to a comparable, I guess, in the end.

[00:15:44] Speaker 00:
They put forth evidence that there were other people whom they investigated, where they determined there was falsification, and where they eventually discharged those people.

[00:15:54] Speaker 00:
But the board's finding, reasonable, is that

[00:15:58] Speaker 00:
they're not actually comparable.

[00:16:01] Speaker 00:
And they're not comparable with respect to the decision to investigate because those employees presumably were the company, you know, the company makes selective choices about which accidents it investigates.

[00:16:14] Speaker 00:
Those employees presumably were investigated for legitimate good faith reasons.

[00:16:19] Speaker 00:
Whereas the board found that the reason given for the decision to investigate Mr. Romero's accident was protectual.

[00:16:29] Speaker 04:
Well, what's the evidence that supports that, where you have so many comparable investigations?

[00:16:36] Speaker 00:
Well, but Your Honor, the number of investigations I really don't think is so impressive when

[00:16:43] Speaker 00:
The company isn't comparing that against the number of reported accidents.

[00:16:47] Speaker 04:
But the general counsel here has the burden of proof, right, to show that there was animus.

[00:16:53] Speaker 00:
Well, I'm not sure, Your Honor.

[00:16:55] Speaker 00:
So, Your Honor, I'm not sure the general counsel has the burden of proof on this exact point because the board based its finding that Mr. Romero's protected activity

[00:17:07] Speaker 00:
was a motivating factor in the adverse actions on other grounds, which I'm happy to go through if you'd like.

[00:17:13] Speaker 00:
But if I could make one other point, if I may.

[00:17:19] Speaker 00:
The, again, so-called comparators are also not really comparators when you're considering the eventual discharge decision because the board looked at ample evidence on the record and decided that there were several bases to demonstrate that the company's purported falsification rationale was a pretext and that the company, in fact, did not rely on that rationale.

[00:17:45] Speaker 00:
So the fact that they can point to

[00:17:48] Speaker 00:
12 other employees out of who knows how many accident reports and how many videos.

[00:17:53] Speaker 00:
Actually there is some evidence in the record about how many there are and there's quite a lot which I could go into if you'd like.

[00:17:59] Speaker 00:
The fact that they can point to some other people where they discharged them when they did rely on that rationale is really of no moment when there's these several reasonable bases for the board to conclude that here they did not rely on that rationale.

[00:18:15] Speaker 03:
Can you talk about the

[00:18:18] Speaker 03:
finding about threatening conduct and the detailed presentation that Mr. Didelberg made about how there really was only one conversation and that the board seems to have found that there were two and that that's contradicted by the record because it has crediting and discrediting the testimony of the same witness.

[00:18:40] Speaker 00:
I don't think that, well, so sure, Your Honor, let me respond.

[00:18:43] Speaker 00:
I don't think there's any dispute, actually, that it's one conversation.

[00:18:48] Speaker 00:
In fact, it's a very drawn-out conversation.

[00:18:50] Speaker 00:
Mr. Rosado estimated that the conversation took place over the course of about 30 minutes.

[00:18:56] Speaker 00:
So the exhibit that my friend is referring to where Mr., I'm sorry, I'm mixing up names,

[00:19:04] Speaker 00:
Mr. Placencia described the conversation and his testimony describing the conversation, and really everyone's testimony describing the conversation, is not a minute by minute, blow by blow account of everything that was said in this approximately 30 minute long

[00:19:20] Speaker 00:
conversation.

[00:19:21] Speaker 00:
It was a summary of what they recalled.

[00:19:23] Speaker 00:
And it's undisputed, well, yes, it is undisputed, that Mr. Rosado testified that he was not present for seven to eight minutes of that conversation.

[00:19:34] Speaker 00:
So his testimony that, yeah, while I was around, I didn't see Mr. Camarena do any of those things, that simply does not resolve the conflict in the testimony between Mr. Placencia

[00:19:47] Speaker 00:
who said Comorana did it and Mr. Comorana who said, I didn't do it.

[00:19:51] Speaker 00:
That conflict in the testimony needed to be resolved.

[00:19:55] Speaker 00:
It could not be resolved by Mr. Rosado because he was not present for seven to eight minutes and

[00:20:01] Speaker 00:
As the judge found well detailed in her decision and affirmed by the board, Mr. Camarena showed himself to be an evasive and at times blatantly dishonest witness.

[00:20:14] Speaker 00:
And the reason she gave, she even highlighted specific testimony in his evidence, excuse me, specific testimony in her decision where he showed himself to be evasive and contradictory and thus properly credited the testimony of Mr. Placencia.

[00:20:31] Speaker 00:
Thank you.

[00:20:43] Speaker 03:
Thank you.

[00:20:43] Speaker 03:
Thank you.

[00:20:49] Speaker 02:
Just very briefly on the situation involving Mr. Placencia, I think any fair reading of the evidence is clear that Mr. Placencia is not saying that Mr. Rosado was not present when the alleged threat was made.

[00:21:05] Speaker 02:
And I think if you look at those portions of the record that I've cited, it will show that.

[00:21:10] Speaker 02:
With respect to Mr. Romero, the board has undertaken an analysis of the comparators general counsel has, which the board didn't actually do in its decision.

[00:21:22] Speaker 02:
If you take a look at footnote 18 of the board decision, they indicate that the company's explanation is implausible, that they acted solely on the basis of a discriminatory motive when their own comparators show plausibility, the fact that they didn't do so.

[00:21:40] Speaker 02:
The unrebutted evidence in the record at pages 267 and page 331 is that it was that Mr. Wattier had on a number of occasions asked to have

[00:21:56] Speaker 02:
And that's completely unrebutted, as Chairman Ring points out, and his dissent.

[00:22:07] Speaker 02:
This is not a fruit of the poisonous tree situation, because the company has shown that it acted routinely to investigate this matter.

[00:22:14] Speaker 02:
And then he was, again, falsification is critical in their safety program because they need to rely upon honest accident reports, which they didn't get in this circumstance.

[00:22:28] Speaker 02:
Thank you.

[00:22:29] Speaker 03:
Thank you very much.

[00:22:30] Speaker 03:
Case is submitted.