[00:00:01] Speaker 03:
Are you okay?

[00:00:03] Speaker 04:
Case number 18-1300, Ed Powell, miscellaneous role products, Rocketswood LLC petitioner versus National Labor Relations Board.

[00:00:13] Speaker 04:
Mr. Johnson for the petitioner, Mr. Cantor for the respondent.

[00:00:48] Speaker 00:
May it please the Court, I'm Harry Johnson, here to argue today for Petitioner Constellium.

[00:00:54] Speaker 00:
Two things about this case leap out for the Court's attention.

[00:00:58] Speaker 00:
First, a severe conflict with Title VII.

[00:01:01] Speaker 00:
And second, a clear departure from the Board's prior precedent in these areas without any reason of justification.

[00:01:10] Speaker 00:
We have an overarching argument that covers both aspects of this case.

[00:01:15] Speaker 00:
And that is simply this.

[00:01:17] Speaker 00:
because the employee's activity in this case, which was sprawling an epithet on an overtime sign-up sheet posted on the employer's official bulletin board as a threshold matter was not protected under the National Labor Relations Act.

[00:01:36] Speaker 00:
Then the court, in order to deny enforcement and reverse the board here, doesn't need to get to the Atlantic Steel balancing test.

[00:01:45] Speaker 01:
There's one thing.

[00:01:47] Speaker 00:
Yes, Your Honor.

[00:01:47] Speaker 01:
You seem to have argued throughout, and again, and certainly quite clearly in your reply brief, that he was discharged for the act of defacement, not for the content of his message.

[00:01:59] Speaker 01:
Is that right?

[00:02:01] Speaker 00:
Well, defacement is certainly one reason.

[00:02:05] Speaker 00:
But if you look at it.

[00:02:06] Speaker 01:
On page 9 of your reply brief, it was Mr. Williams' italicized act of defacement that led to the disciplinary response.

[00:02:16] Speaker 00:
That is certainly one of the main reasons that Mr. Williams was disciplined.

[00:02:20] Speaker 01:
If he had defaced it but without the epithet, had defaced it with no right-thinking, loyal person who cares about his co-workers would sign up on this sheet.

[00:02:34] Speaker 01:
So he defaced it.

[00:02:36] Speaker 01:
Right, it is likely that you- Would the company have taken the same position?

[00:02:39] Speaker 00:
It is likely that it would have, because simply speaking, there are no comparators that anyone had ever gone up and defaced an official company document on the company's bulletin board, or it struck out the header of the overtime sign-up sheet.

[00:02:56] Speaker 01:
Your argument here seems to be very strongly the United Artists Theater defacement.

[00:02:59] Speaker 01:
It doesn't matter what you're saying.

[00:03:01] Speaker 01:
It's the act of defacement that was what motivated the discharge here.

[00:03:06] Speaker 01:
and they'd put up with the word when it was orally spoken by people, with the act of defacement.

[00:03:13] Speaker 00:
Well, I think the act of defacement was a primary motivator in this case.

[00:03:17] Speaker 00:
There is no question about that.

[00:03:19] Speaker 00:
I also think if you look at the record in this case, the employer here did try and make some good faith efforts under a zero tolerance policy to tamp down on graffiti in the workplace besides just this particular defacement.

[00:03:35] Speaker 00:
It is clear, though, that under United Artists, and I agree with you, that the board there ruled that under no circumstances would defacement be

[00:03:43] Speaker 00:
Protected, it goes on the lines of the vandalism cases, where vandalism isn't protected, which is one of the three reasons why the conduct in this case isn't protected.

[00:03:54] Speaker 00:
One, vandalism.

[00:03:56] Speaker 00:
Two, it took over the employer's bulletin board, which belongs to the employer for its messaging.

[00:04:00] Speaker 00:
And three, the venomous sexually demeaning epithet that was used.

[00:04:08] Speaker 00:
At the end of the day, even if you do get to the Atlantic Steal balancing test,

[00:04:13] Speaker 00:
Because of the nature of the conduct, it's so egregious, it is a venomous sexually demeaning epithet.

[00:04:19] Speaker 00:
It is vandalism, and it does take over the employer's form.

[00:04:22] Speaker 01:
It would be vandalism even if it wasn't a sexually demeaning epithet.

[00:04:25] Speaker 01:
That's what I understand.

[00:04:26] Speaker 01:
Your opening brief, the first two headings are all about defacement.

[00:04:30] Speaker 01:
Your reply brief says, look, it was the act of defacement.

[00:04:33] Speaker 01:
That's the reason we discharged him, none of which has anything to do with the epithet he used.

[00:04:39] Speaker 00:
There is no question that the face of the standing line would be an independent reason versus a discharge, and there's no question that it's one of the primary reasons.

[00:04:47] Speaker 00:
If you look at the notice that was given to the employee, though, about his conduct and why the employer had a problem with it, it does mention that it was harassing.

[00:04:57] Speaker 00:
And the testimony by the Hermason, who was... Who did the employer think was being harassed?

[00:05:03] Speaker 00:
everyone in the plan.

[00:05:05] Speaker 00:
I mean, this employer had a million dollar jury verdict rendered against it for offensive gender workplace environment.

[00:05:19] Speaker 00:
And that's the reason why it had the zero tolerance policy.

[00:05:23] Speaker 01:
There were also several- You had a zero tolerance policy, but you said that the board found that

[00:05:32] Speaker 01:
Oral use of this phrase is commonplace, including by a supervisor.

[00:05:38] Speaker 01:
Not denied, as I read it.

[00:05:40] Speaker 01:
And so that doesn't sound like a zero tolerance.

[00:05:43] Speaker 01:
So that's what I'm trying to understand exactly.

[00:05:45] Speaker 01:
Is your argument a zero tolerance for defacing property?

[00:05:49] Speaker 01:
A zero tolerance for writing?

[00:05:51] Speaker 01:
epithets as part of defacement?

[00:05:54] Speaker 00:
I understand, Your Honor.

[00:05:55] Speaker 00:
Basically, the employer had never allowed defacement of this kind before, number one.

[00:06:01] Speaker 01:
Of this kind, just defacement?

[00:06:03] Speaker 00:
Just defacement, yes.

[00:06:04] Speaker 00:
Number two, because of the zero tolerance policy, the employer did regard this as an escalation in the types of epithets that were used.

[00:06:12] Speaker 00:
Number three, there is testimony in the record, and the board didn't make any fact finding to discredit any of this testimony, that the decision makers in this case, vis-a-vis Williams, never consciously allowed other supervisors, for example, to go on and use this term, never consciously allowed employees to get away with this term.

[00:06:37] Speaker 00:
The fact is that they testified.

[00:06:39] Speaker 01:
What does consciously allowed mean?

[00:06:41] Speaker 00:
Well, they see and know about a supervisor using this term, for example, and then they go ahead and allow it.

[00:06:48] Speaker 00:
I think if you go through the record, yes, there is evidence that there's some employees who testified the term was used, the employees used the term.

[00:06:55] Speaker 00:
There's some employees that say supervisors used the term, but at the end of the day, there was a good faith attempt here to tamp down on the workplace culture, and we think that goes right to the

[00:07:09] Speaker 00:
the heart of the problem that the NLRA, the board spin on the NLRA has in this case because the repeated use of an epithet, of course, under Title VII creates an hostile work environment.

[00:07:23] Speaker 00:
Under the board's lodging in this case, the repeated use of an epithet creates an excuse for more epithets and even an escalation to get from a verbal epithet to a written epithet posted up on a board for 24 hours or even 48 hours.

[00:07:40] Speaker 00:
We think at the end of the day.

[00:07:42] Speaker 02:
Does the record say anything about the use of the word, the oral use of this or other related words in the presence of female employees?

[00:07:52] Speaker 00:
No, there is nothing in the record affirmatively on that.

[00:07:56] Speaker 00:
In fact, most of the discussions were apparently on the radio.

[00:07:59] Speaker 00:
This particular maintenance department appears to have all male employees.

[00:08:03] Speaker 00:
Some of the male employees were offended, Your Honor, which is what brought this to the employer's attention.

[00:08:09] Speaker 00:
In fact, one of the employees broke down during the interview process and started crying.

[00:08:14] Speaker 01:
Employees that were signed up to do the overtime.

[00:08:16] Speaker 00:
Yes, it was one of those people.

[00:08:19] Speaker 01:
Were there any women that would have seen, any evidence that women would have been in the area that would have seen where this sign up sheet was?

[00:08:26] Speaker 00:
The record is it was in heavily trafficked, openly accessible area of the plant.

[00:08:32] Speaker 00:
Next to a time clock, next to an official bulletin board.

[00:08:35] Speaker 00:
What do you mean a blur?

[00:08:35] Speaker 01:
Did you put on evidence that women were in this area?

[00:08:39] Speaker 00:
There is evidence in the record.

[00:08:41] Speaker 00:
You can see it in joint appendix at 20.

[00:08:43] Speaker 00:
You can see it from the fact that two women actually sued the employer who were employees about the prior.

[00:08:49] Speaker 00:
About different postings.

[00:08:51] Speaker 00:
Yes, that was a different post.

[00:08:52] Speaker 01:
Seeing it's heavily trafficked doesn't answer the question, heavily trafficked by whom.

[00:08:57] Speaker 01:
And so was this in an area?

[00:09:00] Speaker 01:
Did you put evidence in the record?

[00:09:02] Speaker 01:
That's what I'm really asking.

[00:09:03] Speaker 01:
Did you put evidence in the record that women were in this area?

[00:09:07] Speaker 00:
There is evidence in the record that women could come through this area.

[00:09:13] Speaker 00:
To be direct with you, to be responsive to your question, Your Honor, there isn't anything in the record that says a certain woman definitely passed through this area and we knew about it.

[00:09:25] Speaker 00:
But certainly it's the employer's reasonable belief.

[00:09:27] Speaker 00:
If you look at the AdTrans case,

[00:09:29] Speaker 00:
Basically, the DC circuit tells employers, you've got to have a zero tolerance policy and you've got to try and tamp down on this kind of thing.

[00:09:37] Speaker 00:
And that's simply what the employer was doing.

[00:09:40] Speaker 02:
Does the record indicate whether there were any female employees who either do work overtime sometimes or are in positions where overtime was possible?

[00:09:53] Speaker 00:
On this particular overtime board, the record is silent on that.

[00:09:57] Speaker 01:
But I also would point out... I thought you said that this particular unit for which this overtime applied was all mail.

[00:10:06] Speaker 00:
It appears from the record that it is all mail.

[00:10:11] Speaker 00:
And but I would point out that the Forrest case from the First Circuit basically says that it's a gender-specific epithet.

[00:10:19] Speaker 00:
The Reeves case says that even where a term like whore is used to refer to men, that usage may not make the epithets any less offensive to women on account of gender.

[00:10:29] Speaker 00:
If this poster, if this posting had been up for 48 hours if the employer hadn't detected it,

[00:10:35] Speaker 00:
Originally, anyone could have walked through there.

[00:10:38] Speaker 00:
There is no question that this is a mixed workforce of males and females.

[00:10:42] Speaker 03:
It looks like I don't have that much- Mr. Johnson, I just want to ask you a quick question about whether you properly raised this issue before the board.

[00:10:52] Speaker 03:
In your entering brief, you discuss the issue, that is, the relationship between this and anti-arrestment laws.

[00:10:59] Speaker 03:
But they're in sections dealing with dealing with defacement, whether defacement constitutes protected activity, and on the Atlantic steel factors, which is different argument that you're making here.

[00:11:16] Speaker 03:
And I didn't see anywhere in the brief where you discussed this accommodation issue or cited all the cases.

[00:11:23] Speaker 03:
Why is this issue properly raised?

[00:11:27] Speaker 00:
The standard is to just put the board on adequate notice.

[00:11:31] Speaker 03:
Do you think the board would have had adequate notice for this?

[00:11:34] Speaker 00:
I do think so, because Constellium expressly argued in its original brief that this was foul language, especially in the context of gender discrimination, and the general counsel's contrary position would, quote, eliminate the company's ability to police the workplace, unquote.

[00:11:48] Speaker 00:
and would cause, quote, serious tension, unquote, with, quote, the law and workplace standards.

[00:11:54] Speaker 00:
And that's in Joint Appendix 114 through 115.

[00:11:57] Speaker 00:
And the employee's violation in this case was described in the notice precisely as harassment in Joint Appendix 234.

[00:12:04] Speaker 00:
We don't think in some ways we're required to do anything more, especially given the fact that the ALJ's decision here, if you remember, didn't get to Title VII at all.

[00:12:13] Speaker 00:
And in fact, the general counsel didn't raise any... Would you argue Title VII to the ALJ?

[00:12:17] Speaker 00:
In the brief.

[00:12:18] Speaker 00:
that we argued that under the totality of circumstances test, for example, this was offensive language.

[00:12:26] Speaker 01:
And that's... Did you argue that as part of the Atlantic Steel analysis or the totality of circumstances analysis, the implications for EEO laws had to be factored in?

[00:12:39] Speaker 01:
Did you argue that to the ALJ?

[00:12:41] Speaker 00:
Well, that was argued before the board when I did those quotes I just made in terms of the ALJ.

[00:12:47] Speaker 01:
Why didn't you mention federal?

[00:12:50] Speaker 01:
I didn't see the words.

[00:12:52] Speaker 01:
acronym EEO or Title VII or federal anti-discrimination law anywhere in there.

[00:12:58] Speaker 00:
There was a case made to the ALJ that this was foul and offensive language.

[00:13:02] Speaker 00:
There was put in front of the ALJ the noticed employees saying that they violated the harassment policy.

[00:13:08] Speaker 00:
And the last thing I can say, just in terms of how the workplace regarded this, Kevin Gall, who's the union committee,

[00:13:16] Speaker 00:
The grievance committee chairman who sees all the disciplines testifies in this case that it was never appropriate to put up this kind of posting in the workplace.

[00:13:24] Speaker 00:
So if basically this had been some acceptable form of conduct, you would have expected him to testify, oh, this happened all the time.

[00:13:32] Speaker 03:
Well, that's the merits.

[00:13:33] Speaker 03:
The question is whether you've raised the issue.

[00:13:35] Speaker 03:
That's the only reason I asked.

[00:13:36] Speaker 00:
Right.

[00:13:37] Speaker 00:
And we did, like this court tells us in HTH, we did put forth a motion for reconsideration that quite expressly reached the issue.

[00:13:45] Speaker 00:
And the board simply said, well, we already considered this.

[00:13:51] Speaker 00:
And one of the members.

[00:13:51] Speaker 03:
Thank you.

[00:14:07] Speaker 05:
May it please the court, Jared Cantor on behalf of the National Labor Relations Board.

[00:14:13] Speaker 05:
The board asks the court to enforce its order because Williams did not lose the protection of the act and that finding was reasonable and supported by substantial evidence.

[00:14:23] Speaker 05:
Picking up where my brother at the bar left off, the board would, and as we do, strongly pushes back

[00:14:29] Speaker 05:
on its argument that its answering brief apprised the board of the argument it's making in front of this court, that the boards should have, in this case, accommodated EEO Title VII state anti-discriminations, that that's a very specific, when you're asking the board to essentially accommodate other statutes, that that's a very specific

[00:14:55] Speaker 05:
claim that they make very well in their belated motion for reconsideration.

[00:14:59] Speaker 05:
So they knew that argument, but they did not flesh it out at the time that they should have.

[00:15:06] Speaker 05:
And this similarly goes to the board's finding that this is a case about discipline arising from the protected content of what Mr. Williams did, that this is not a defacement case.

[00:15:19] Speaker 05:
And that goes once again to the notice that Mr. Williams received, that if what concerned them was defacement, it would say, we are suspending you with the intention to discharge you because you defaced.

[00:15:31] Speaker 05:
Instead, it talks about your willful and harassing conduct, insulting and harassing conduct, using this, what I would submit, and essentially become a term of art within this shop.

[00:15:46] Speaker 01:
So look at J-125-126.

[00:15:50] Speaker 01:
That's where they talk about, look, the word used here was exactly the same, or the functional equivalent of the words, and this is their telling the board, for which we were just held liable under state anti-discrimination laws for creating a hostile and abusive work environment, that's EEO law, by a court in West Virginia.

[00:16:13] Speaker 01:
And if you rule against us here, we're not going to be able to

[00:16:16] Speaker 01:
police foul language like that.

[00:16:18] Speaker 01:
How did that not put them on notice?

[00:16:21] Speaker 05:
Well, Your Honor, I think that puts the board on notice in the sense of the analysis that it conducted as to the employer's legitimate concerns here balanced against the employee's rights.

[00:16:32] Speaker 05:
But to say then that the board needs to reconfigure its entire jurisprudence to accommodate these statutes or rule them.

[00:16:39] Speaker 05:
I know it just means we needed to answer it.

[00:16:42] Speaker 05:
I think the board answers it in its analysis here when it looks at what this term meant in the shop.

[00:16:49] Speaker 05:
How can you say now it's not preserved?

[00:16:51] Speaker 05:
What's not preserved is, well, first of all, they brief none of the Atlantic Steel analysis or the totality of the circumstances.

[00:16:58] Speaker 05:
So the board's actual analysis under all the factors stands unchallenged in front of the court.

[00:17:03] Speaker 05:
What's to need is the argument they're making that this decision needs to be denied enforcement and sent back because they asked the board at the appropriate time and place

[00:17:14] Speaker 05:
to reconfigure its jurisprudence to accommodate.

[00:17:18] Speaker 05:
Essentially, they're asking this court what the board is considering in its notice and invitation for briefs, reconceptualizing its entire jurisprudence in this area.

[00:17:27] Speaker 05:
Their concerns about harassment are addressed.

[00:17:30] Speaker 02:
I don't think any respondent comes before the board and asks for some enormous rethinking of its jurisprudence.

[00:17:36] Speaker 02:
It raises a specific issue, which may then trigger the board's doing that.

[00:17:41] Speaker 02:
Turns out the board's doing it anyway.

[00:17:45] Speaker 05:
Well, yes, Your Honor.

[00:17:45] Speaker 05:
But their argument here was, and certainly at this point, as we argue, has been waived.

[00:17:50] Speaker 05:
They disputed the Atlantic steel analysis.

[00:17:53] Speaker 05:
They disputed the totality of the circumstances analysis.

[00:17:56] Speaker 02:
I mean, what Judge Mallette read to you is from their alternative analysis under Atlantic steel.

[00:18:03] Speaker 01:
Or totality of circumstances.

[00:18:05] Speaker 01:
I think one, right?

[00:18:06] Speaker 01:
Under both.

[00:18:06] Speaker 01:
Right, they do it under both.

[00:18:07] Speaker 01:
They do it also on 122.

[00:18:09] Speaker 05:
Correct, Your Honor.

[00:18:10] Speaker 05:
And respectfully submitted, that is

[00:18:13] Speaker 05:
would be insufficient to apprise the board that they're making this argument.

[00:18:18] Speaker 05:
When you read their motion for reconsideration in their brief to this court, there that argument is you read it and you understand the argument that they are making.

[00:18:26] Speaker 05:
The argument that they are making in their answering brief on those two is essentially reiterating the fact part of their brief where they say, we were really concerned about this.

[00:18:36] Speaker 05:
That's why we did what we did.

[00:18:39] Speaker 05:
And the board doesn't just

[00:18:41] Speaker 05:
The board didn't say you didn't have a concern over... Didn't the dissenting member of the board acknowledge this issue?

[00:18:48] Speaker 05:
The dissenting member, Emmanuel, he departs from the board when he says, this is a case about defacement, which is what the ALJ had said.

[00:18:56] Speaker 01:
The board disagrees... But he also notes this issue as well, does he not?

[00:18:59] Speaker 01:
Does he?

[00:19:00] Speaker 01:
He also notes the concern about

[00:19:03] Speaker 01:
Yes, he telegraphs that.

[00:19:06] Speaker 01:
And then when the petition for reconsideration comes in, he says, while I obviously disagree, I would deny reconsideration because it doesn't argue anything when it makes the EDO point that it hadn't already argued.

[00:19:21] Speaker 05:
Well, Your Honor, respectfully.

[00:19:22] Speaker 05:
Was he wrong?

[00:19:23] Speaker 05:
That's not what he said.

[00:19:25] Speaker 05:
They quote part of a member of Emanuel's footnote from denying the motion for reconsideration.

[00:19:30] Speaker 05:
His language there basically just merely parrots what's in the CFR subsection that governs motion for reconsideration.

[00:19:37] Speaker 01:
He agrees that respondent has not raised any issue not previously considered or shown as ordinary circumstance.

[00:19:45] Speaker 01:
So he agrees that respondent's brief

[00:19:49] Speaker 01:
motion for reconsideration has not raised any issue not previously considered.

[00:19:54] Speaker 01:
And as you said, they very well briefed in their motion for reconsideration, the CEO issue.

[00:19:59] Speaker 01:
So how could he say that they haven't raised any issue that wasn't previously considered if

[00:20:05] Speaker 01:
It hadn't previously been presented to them.

[00:20:07] Speaker 05:
Well, Your Honor, the second part, his full footnote talks about agrees that the respondent has not raised any issue not previously considered or shown extraordinary circumstances warranting reconsideration.

[00:20:17] Speaker 05:
And their motion for reconsideration had three bases.

[00:20:21] Speaker 05:
Remember Emmanuel's footnote there?

[00:20:23] Speaker 01:
When he raised it in his initial dissent, was he making it up for them?

[00:20:28] Speaker 05:
No, I think he was telegraphing his joining the majority in

[00:20:33] Speaker 05:
in the General Motors-Nelson invitation over the dissent of McFerrin, I view that more as a dialogue between the dissent and the majority, which is very common in board decisions hashing out.

[00:20:45] Speaker 01:
Are board members allowed to raise arguments that parties haven't?

[00:20:47] Speaker 01:
I have no idea, just procedurally, do they get to raise arguments that parties haven't?

[00:20:50] Speaker 05:
Yes, they do, and under well-established board 10E jurisprudence, even if the board, sua sponte, raises an issue, that does not preserve it for 10E because a party has to raise the objection.

[00:21:07] Speaker 05:
There was a lot of discussion earlier about the record here, and what the record, to the extent your honors are interested in it, otherwise I'll yield back the balance of my time because I know it's been a long day for the panel,

[00:21:19] Speaker 05:
The way you look at these overtime sheets.

[00:21:21] Speaker 03:
We can go a lot longer if we need to.

[00:21:24] Speaker 03:
Don't worry about us.

[00:21:25] Speaker 05:
The record shows that indeed that this

[00:21:29] Speaker 05:
sub unit, sub shop where Mr. Williams worked that the ALJ looks at all the names that were on the two sign up sheets and he says, well there's three that have, it could be one gender or the other, Terry, Bobby, and I think there was one more.

[00:21:44] Speaker 05:
Mr. Williams testified when asked about the names on these overtime sheets, one of which is his, that everyone on there was all men.

[00:21:53] Speaker 05:
Judge Millett, you were asking my brother at the bar about, or he was talking about how long this was up and women passing back and forth.

[00:22:01] Speaker 05:
What the record indicates is that Mr. Williams wrote this at the end of his shift.

[00:22:06] Speaker 05:
And then it was brought to management's attention, and it was taken down essentially almost immediately.

[00:22:10] Speaker 05:
Because as the board talks about in its analysis, this was scheduled to be taken.

[00:22:14] Speaker 01:
But 24 hours isn't almost immediately.

[00:22:16] Speaker 05:
Huh?

[00:22:16] Speaker 01:
24 hours isn't almost immediately.

[00:22:18] Speaker 05:
It was not up there for 24 hours.

[00:22:20] Speaker 01:
I thought it was due to go down the next day.

[00:22:21] Speaker 05:
It was due to, but it was taken down once this was brought to management's attention.

[00:22:24] Speaker 01:
I don't know how long that was.

[00:22:26] Speaker 05:
There's no discussion in the record about when it was just brought to management's attention.

[00:22:31] Speaker 05:
I believe Mr. Williams, in the record, one of the exhibits has his clock out time, his punch out time.

[00:22:38] Speaker 05:
I believe it was three or four, mostly a normal working period date, but it was brought to management's attention.

[00:22:45] Speaker 05:
And as the board focuses on in its analysis, it was taken down early.

[00:22:50] Speaker 05:
And it was already scheduled to go the next day.

[00:22:53] Speaker 05:
So it was not up there for a very long time.

[00:22:55] Speaker 05:
There is nothing.

[00:22:56] Speaker 01:
So if it had been up for 48 hours, would it be a different issue?

[00:23:00] Speaker 05:
I don't think that would.

[00:23:02] Speaker 01:
I was just curious as to why they thought that.

[00:23:04] Speaker 01:
I mean, I get if something's up there for such a fleeting time that nobody but the supervisor who tears it down sees it, that's one thing.

[00:23:11] Speaker 01:
But that's not what was argued here.

[00:23:13] Speaker 01:
So I'm not sure why you get to use racial or gender epithets as long as it's not for very long.

[00:23:21] Speaker 05:
Well, Your Honor, I think that goes to the board looking at the Atlantic steel and looking at what their interest would be.

[00:23:28] Speaker 05:
Certainly, as we point out in the footnote in our brief, there's nothing wrong with them then taking this down.

[00:23:33] Speaker 01:
I mean, the governing question in this case is... But I think... Am I reading the decision of the board right?

[00:23:39] Speaker 01:
That every single day this could get written on the paper again?

[00:23:46] Speaker 01:
No, Your Honor, I don't... This protected activity as part of this continued... I assume it's... Well, let's assume it's still ongoing.

[00:23:53] Speaker 01:
I don't know what's happened in the interim, but assuming we're still in an ongoing dispute, it wouldn't be a protected activity to keep writing it?

[00:23:58] Speaker 05:
Well, Your Honor, this dispute eventually was resolved on the parties end of the changing agreement.

[00:24:02] Speaker 05:
Okay, but let's assume it wasn't.

[00:24:02] Speaker 01:
But yes, Your Honor.

[00:24:03] Speaker 01:
The next day, it got really bad.

[00:24:04] Speaker 05:
No, well, I think that would go... That would affect the board's analysis where it talks about that this was spontaneous, it was unplanned,

[00:24:12] Speaker 05:
misconduct.

[00:24:15] Speaker 01:
And certainly... I don't know how it can be spontaneous and unplanned when it was the natural outgrowth of an ongoing course of protective activity.

[00:24:21] Speaker 01:
That seems a little odd.

[00:24:22] Speaker 05:
Well, no, Your Honor, I don't, respectfully don't think so because it certainly did, this did not come out of the blue.

[00:24:28] Speaker 05:
This was not him raising a personal gripe out of the blue.

[00:24:33] Speaker 05:
That this is part of the unit's concerted action against the employer's implementation.

[00:24:38] Speaker 01:
That's how everyone referred to this sheet?

[00:24:40] Speaker 01:
It was common parlance that this sign up was referred to by that phrase?

[00:24:46] Speaker 05:
Yes, Your Honor.

[00:24:47] Speaker 05:
As I said, this had become essentially a term of art.

[00:24:49] Speaker 05:
I would think that if he had went up there and written anything else to describe it.

[00:24:53] Speaker 05:
A term of art?

[00:24:55] Speaker 05:
In the sense of people knew what this meant when people were referring to it.

[00:24:58] Speaker 05:
Ideally, yes, of course, we would have wanted them to have picked the oppressive board, some other term.

[00:25:03] Speaker 05:
But in the context, this is what employees were calling it, the record shows.

[00:25:08] Speaker 01:
If a dispute was going on, let's say it went on for another year, what would stop an employee from writing it?

[00:25:14] Speaker 01:
Every time the sheet goes up, an employee writes it.

[00:25:17] Speaker 05:
Well, a couple things around her.

[00:25:18] Speaker 05:
Again, it would start weighing against that employee for the repeated part of the misconduct.

[00:25:23] Speaker 05:
That's the balancing in Atlantic Steel.

[00:25:25] Speaker 01:
And certainly as the... But is it not a repeated exercise of protective conduct?

[00:25:30] Speaker 05:
Well, but you can eventually lose the protection of the Act.

[00:25:33] Speaker 01:
And as some of the board cases discuss... Should you say we repeat the epithet often enough?

[00:25:38] Speaker 01:
You lose the protection?

[00:25:39] Speaker 05:
Well, you may indeed, Your Honor.

[00:25:42] Speaker 05:
It really would depend.

[00:25:43] Speaker 05:
And certainly, as some of the cases discuss, where it then becomes an issue of

[00:25:50] Speaker 05:
of insubordination or repeated bad conduct.

[00:25:55] Speaker 05:
At some of the cases where we have multiple instances of graffiti or vandalism before and after an employee is warned, that changes the calculus.

[00:26:04] Speaker 05:
All of these cases are, as in any Atlantic Steel or loss of protection case, they're extremely fact intensive.

[00:26:12] Speaker 05:
Whether you're looking at the totality of the circumstances or going through each one of the factors,

[00:26:17] Speaker 05:
It really is a fact-intensive type inquiry.

[00:26:20] Speaker 01:
Can I just ask you one other question?

[00:26:24] Speaker 01:
The board said the United Artists Theater argument was raised.

[00:26:28] Speaker 01:
That's on a different, sort of categorical role against defacement.

[00:26:32] Speaker 01:
And the answer is the board has never held that employee graffiti is always unprotected.

[00:26:38] Speaker 01:
And United Artists Theater, on which the judge relied, did not establish such a per se rule.

[00:26:43] Speaker 01:
I want JA 133.

[00:26:45] Speaker 05:
Yes, ma'am.

[00:26:46] Speaker 01:
But that is exactly what United Artists said, right?

[00:26:51] Speaker 01:
I find that the writing of graffiti on elevator walls and restroom walls is not protected activity.

[00:26:58] Speaker 01:
That's 127 of United Artists on 128.

[00:27:04] Speaker 01:
My conclusion turns on the proposition that the writing of graffiti or defacing an employer's property as a means of the propagation of the slogan is under no circumstances a protected activity at the threshold.

[00:27:16] Speaker 01:
Section seven.

[00:27:17] Speaker 05:
Yes, Your Honor.

[00:27:18] Speaker 01:
So it seems like the board's distinction was just not accurate.

[00:27:24] Speaker 05:
Respectfully, Your Honor, certainly the language that the judge used in this case is the judge's language.

[00:27:30] Speaker 01:
The board adopted this decision, so this is the board's language.

[00:27:33] Speaker 05:
Yes, it is the board's language.

[00:27:34] Speaker 01:
So the language of the board there.

[00:27:36] Speaker 01:
I'm just asking you whether they were wrong when they said, they might have other explanations, like we've overtaken, that was a one-off, other precedents overtaken it, but the explanation they gave was, we've never held that employee graffiti is always unprotected.

[00:27:52] Speaker 05:
Yes, Your Honor, and I think it's- That was just wrong.

[00:27:55] Speaker 05:
No, the board is correct in saying it has never held that.

[00:27:58] Speaker 05:
I think when you look at the language there, the judge, as adopted by the board in United Artists, was really focusing on the specific facts of that case.

[00:28:07] Speaker 05:
Indeed, the first sentence that you read where the judge said, at the threshold, I find that the writing of graffiti on elevator walls and restroom walls of an employer is not, I mean, he was very much.

[00:28:18] Speaker 01:
My conclusion turns on, so this sounds like a holding.

[00:28:21] Speaker 01:
The proposition of the writing of graffiti or defacing of employer's property as a means of propagation of slogans is under no circumstances a protected activity and therefore the threshold is contact associated from section seven.

[00:28:35] Speaker 01:
That doesn't have any of those qualifications and that seems to be his sum up conclusion holding that the board adopted.

[00:28:41] Speaker 05:
Well, two parts, Your Honor.

[00:28:43] Speaker 05:
One, I mean, he capitalizes the employer.

[00:28:45] Speaker 05:
So once again, he's very much looking at what this employee did in that case.

[00:28:50] Speaker 05:
And indeed, in that case, he found that the graffiti in there was unprotected, the content of it, because it was obscene and offensive.

[00:28:59] Speaker 05:
And he also, as the rest of that sentence makes clear, he talks about it's clearly unlike misconduct occurring during the course of protected activity.

[00:29:06] Speaker 01:
So for this particular employer, you could never have protected

[00:29:10] Speaker 01:
to face under graffiti, that's your answer?

[00:29:13] Speaker 05:
Well, Your Honor, I think it would turn on the graffiti that was being written.

[00:29:17] Speaker 05:
And certainly in this, as the board emphasizes in a footnote in this decision when talking about this, it says even to the extent that the judge here used this very strong language, he also, there are findings in here consistent with the loss of protection analysis and where the judge also

[00:29:38] Speaker 05:
I'm thinking of the board's footnote, and it's escaping the meme where the board made one other point.

[00:29:43] Speaker 01:
That they were obscene and offensive.

[00:29:44] Speaker 05:
Yes.

[00:29:45] Speaker 05:
That he was looking at what was done there.

[00:29:47] Speaker 05:
And I think interpreting United Artists in this way, then, makes sense when you look at all of these board cases.

[00:29:53] Speaker 05:
The company points to some, we point to some.

[00:29:55] Speaker 05:
It would be like any old verbal Atlantic steel case, where you can find a dozen cases where someone said something in a loud voice or aggressively or made aggressive movements.

[00:30:06] Speaker 05:
And just because in some cases,

[00:30:08] Speaker 05:
that loud, aggressive language was found to have cost you the protection of the act.

[00:30:14] Speaker 05:
And just because in other cases you retain the protection of the act, it's not that the board is departing from its jurisprudence and is all over the place.

[00:30:22] Speaker 05:
It's because these are really very fact-intensive.

[00:30:25] Speaker 02:
Mr. Kennedy, wouldn't you agree that insofar as the cases arise from picket line conduct,

[00:30:34] Speaker 02:
the board could reasonably be more tolerant than cases arising of epithets and so on or insults arising in a placid environment.

[00:30:50] Speaker 05:
Yes, Your Honor, I have never litigated a picket line misconduct case.

[00:30:55] Speaker 05:
But certainly, it's true when the board under Atlantic Steel looks at the location.

[00:30:59] Speaker 05:
It does look whether this was in a supervisor's office, whether it was out in the open.

[00:31:05] Speaker 05:
One of the factors of Atlantic Steel looks at.

[00:31:07] Speaker 05:
I mean, this is almost your quintessential old school industrial setting.

[00:31:13] Speaker 05:
This is an enrolled aluminum manufacturing on the floor of the shop.

[00:31:18] Speaker 01:
And the fact that the employer's property was used for the epithet factoring, or should that factor in?

[00:31:27] Speaker 05:
Well, I think it certainly does, Your Honor.

[00:31:29] Speaker 05:
At page four of the D&O, which is page 135 of the appendix, the board is part of its analysis.

[00:31:36] Speaker 05:
And it's also in discussion with the dissent on this says, we are considering the employer's interest here.

[00:31:43] Speaker 05:
It has a property interest.

[00:31:44] Speaker 05:
It had an interest in its overtime system.

[00:31:46] Speaker 05:
It had an interest in not having this defaced.

[00:31:50] Speaker 05:
But the question is, as under all Atlantic steel.

[00:31:53] Speaker 01:
But they don't have an interest in not having their property used

[00:31:56] Speaker 01:
racial or gender evidence?

[00:32:01] Speaker 05:
Well, I mean, I think that's still captured within the... That would be the employer's interest, of course, in maintaining a harassment-free workplace, just like it would be... That's a distinct interest, and I don't want my property used for those types of distinctly offensive and harmful words.

[00:32:22] Speaker 01:
On top of my general desire to control how my property is used.

[00:32:26] Speaker 05:
And certainly the board is, as they point, as the company points out, is considering your honor's concerns as expressed in your concurrency.

[00:32:33] Speaker 01:
And could a woman who walks by and sees that, we're not going to know who wrote it up there, they're going to see this official posting of the employer captioned this phrase.

[00:32:44] Speaker 05:
Well, Your Honor, that maybe would be a slightly different case if those were the facts.

[00:32:47] Speaker 01:
No, that's this case.

[00:32:49] Speaker 01:
It was written at the top.

[00:32:50] Speaker 01:
So it was like the caption of the sign-up sheet.

[00:32:52] Speaker 01:
And they know that this is something the employer puts out, the sign-up sheet.

[00:32:57] Speaker 01:
I mean, certainly, Your Honor, there's a distinct interest there.

[00:33:00] Speaker 05:
Well, Your Honor, again, that's why they were allowed to remove it.

[00:33:03] Speaker 05:
And that's why, certainly, these Atlantic Steel cases are about misconduct.

[00:33:07] Speaker 01:
Why were they allowed to remove it?

[00:33:08] Speaker 01:
Because it was their sign-up sheet?

[00:33:10] Speaker 05:
Correct.

[00:33:13] Speaker 05:
And certainly I know they focus a lot on the bulletin board aspect of this.

[00:33:18] Speaker 05:
This could have just as easily been taped to a wall or a door.

[00:33:21] Speaker 05:
What else was on the bulletin board?

[00:33:24] Speaker 05:
So the bulletin board that they have here is the bulletin board itself.

[00:33:28] Speaker 05:
The pin board is actually under glass.

[00:33:30] Speaker 05:
So this then is taped on the outside of the glass because employees are expected to write on it.

[00:33:36] Speaker 05:
What else was on the bulletin board under the glass?

[00:33:40] Speaker 05:
There are photos.

[00:33:41] Speaker 05:
I believe there were notices to employees.

[00:33:43] Speaker 05:
There might have been an OSHA notice.

[00:33:46] Speaker 01:
Maybe an EEO notice?

[00:33:50] Speaker 05:
I believe there's testimony that they had one of their workplace policies up there.

[00:33:54] Speaker 05:
I don't know if they had an EEO notice up there.

[00:33:58] Speaker 02:
It sounds like employees were expected to look at this bulletin board even if they weren't there to sign up for overtime.

[00:34:06] Speaker 05:
Yeah, I mean certainly I don't think we could dispute that this is where the employer posted notices to this group of... They were expected to look and learn about messages the employer wanted to communicate to them.

[00:34:17] Speaker 05:
Yes, I mean, again, this is a misconduct case.

[00:34:21] Speaker 05:
The board is not saying here that there is a right to go and do this.

[00:34:25] Speaker 05:
It's a question about whether this was so egregious as to be indefensible and as to justify terminating Mr. Williams.

[00:34:33] Speaker 05:
And that brings in all the protections of well-established labor law and the board's very reasoned analysis under Atlantic Steel or totality, none of which, again, the company, I mean, it's hung its hat on the first part of the argument.

[00:34:47] Speaker 05:
and I think very strategically decided not to fight the board on any of the loss of protection analysis.

[00:34:54] Speaker 05:
I see I am way over my time if there are... Thank you.

[00:34:59] Speaker 03:
Did Mr. Johnson make time?

[00:35:01] Speaker 04:
There was notes on your name.

[00:35:02] Speaker 03:
You can take one minute.

[00:35:07] Speaker 00:
Excuse me.

[00:35:08] Speaker 00:
So I'll just cover a bunch of points.

[00:35:10] Speaker 00:
Parkwood is the waiver standard.

[00:35:15] Speaker 00:
That's if the respondent neglects to discuss everything.

[00:35:18] Speaker 00:
I think it's a complete failure of the board's fact finding to find that this is a provoked act or a spontaneous act.

[00:35:25] Speaker 00:
This notice, this policy dispute had been in effect for six months by the time this person engaged in the premeditated act.

[00:35:32] Speaker 01:
We're here just making a fact dispute now.

[00:35:34] Speaker 01:
Right, the board found it was spontaneous, and that's a fact finding.

[00:35:37] Speaker 00:
So you're making a fact... Right, I'm making a universal camera point that if you look at the evidence in this case, there are no facts that this was some sort of provoked or spontaneous act, given the fact that the policy had been up.

[00:35:49] Speaker 00:
There's no legitimate communicative value given the policies of NLRA, and the whole message was the two-word horror board.

[00:35:56] Speaker 00:
Under Emerson Electric, the board held employees can't even put graffiti on pieces of scrap metal that are going to be used.

[00:36:06] Speaker 00:
This is last point.

[00:36:08] Speaker 00:
This is in essence a color speech case because I think the zero tolerance policy was up on the board if you look at joint appendix 40 through 41, 48, and 240 through

[00:36:19] Speaker 00:
And that policy said, we as the employer do not approve of harassment.

[00:36:25] Speaker 00:
We want harassing and insulting conduct to stop.

[00:36:27] Speaker 00:
This employee came up and replaced that message in effect with, we think... Could you ever use the phrase coerced speech in an argument to the board or ALJ?

[00:36:38] Speaker 00:
No.

[00:36:39] Speaker 00:
I think that it was argued in the context of the employer's right to maintain discipline in production.

[00:36:46] Speaker 03:
Thank you, Your Honor.

[00:36:47] Speaker 03:
Thank you.

[00:36:47] Speaker 03:
The case is submitted.