[00:00:01] Speaker ?:
Case number 18-11-65 at L. Michael Setta, Inc.

[00:00:43] Speaker ?:
Okay.

[00:01:20] Speaker 04:
Good morning.

[00:01:21] Speaker 00:
Good morning, Your Honors, and happy Law Day.

[00:01:26] Speaker 00:
May it please the Court, my name is John Brooks.

[00:01:29] Speaker 00:
I appear today on behalf of the appellant Michael Setta, Inc., doing business as Sparks Steakhouse.

[00:01:37] Speaker 00:
Your Honors, among the essential principles of law is the importance of words.

[00:01:46] Speaker 00:
And there are four sets of words that are critical

[00:01:49] Speaker 00:
to this case, locked out at this time permanent replacements and open positions.

[00:02:03] Speaker 00:
The record demonstrates clearly that there is no striker who ever claimed to have been discharged.

[00:02:14] Speaker 00:
The Union itself never claimed that there was a discharge.

[00:02:19] Speaker 00:
To the contrary, from the outset, the union took the position that the strikers had been locked out.

[00:02:29] Speaker 00:
That fact is fatal to the claim of discharge.

[00:02:35] Speaker 00:
It's fatal because of the precedent of the board itself.

[00:02:39] Speaker 01:
Isn't the question about the lockout was mentioned by the union lawyer in the letter, right?

[00:02:45] Speaker 00:
Say again, please?

[00:02:46] Speaker 01:
The lockout was raised, it was the union lawyer who mentioned the employees were locked out, right, in his letter?

[00:02:52] Speaker 01:
In his email?

[00:02:53] Speaker 01:
The union treasurer... Isn't the question what the employees think?

[00:02:59] Speaker 00:
If there were... Then the ALJ found they thought they had been discharged and... Yes, but there was no effort to elicit testimony from any of the strikers called.

[00:03:12] Speaker 01:
that in fact there was, they felt there had been... It's not a subjective test, it's objective.

[00:03:18] Speaker 00:
It is absolutely objective, but in order to apply the reasonable prudent standard, the reasonably prudent attorney, excuse me, the reasonably prudent employee test, you first have to have an employee who believes, based on the employer's conduct, that he or she has been discharged.

[00:03:36] Speaker 01:
Is there a case that says that?

[00:03:37] Speaker 00:
There is, there are cases... Is there a case that says what you just said?

[00:03:44] Speaker 01:
There is no case that... Then maybe I just don't know, just tell me what it is, can you say?

[00:03:47] Speaker 00:
No, the brief cites the cases from which we extract the principle that there has to be an actual employee.

[00:03:56] Speaker 01:
You cannot have a hypothetical... But is there a case that says what you just said?

[00:03:59] Speaker 00:
There is no case that specifically rules on this issue, no.

[00:04:05] Speaker 00:
But it was not just the lawyer or the treasurer for the union, the union being the sole negotiator, authorized negotiator for the striking employees, but also the executive director of the union who made that statement, made that statement

[00:04:23] Speaker 00:
consistently made that statement in the course of negotiations, all of this is in the record.

[00:04:30] Speaker 00:
And if we are to look past that fact, then we are into the realm of the hypothetical, which no longer becomes an objective standard, but a retrospective

[00:04:42] Speaker 00:
a standard that is subjective because the board is coming in, as it did here, and saying after the fact, we believe, we are looking at these circumstances.

[00:04:54] Speaker 00:
And we believe that a hypothetical striker could theoretically conclude that he or she had been discharged.

[00:05:03] Speaker 00:
And with respect, that is not an objective standard.

[00:05:09] Speaker 00:
In the Douglas Auto Tech case cited in the brief, is determinative that a striker cannot be both locked out and discharged.

[00:05:25] Speaker 00:
That case is ignored by the board in its brief completely.

[00:05:31] Speaker 00:
And this court, actually 18 years ago today, Judge Titel, in the Bruscoe, Tuggin, Barge case, articulated or reiterated the standard that an agency is bound by its own precedent.

[00:05:51] Speaker 00:
And if it departs from that precedent, must offer a reasoned explanation for doing so.

[00:05:58] Speaker 00:
There is no reasoned explanation here for departing from Douglas Auto Tech.

[00:06:04] Speaker 00:
And respectfully, that case controls the issue of discharge.

[00:06:10] Speaker 00:
The issue of the lack of discharge is manifest also by the fact that the executive director of the union testified that had there been a discharge, the union would have filed a charge with the board to that effect, and no such charge was filed in this case.

[00:06:33] Speaker 00:
Moreover, we can look

[00:06:36] Speaker 00:
to objective, not subjective, issues to determine that there was no discharge.

[00:06:42] Speaker 00:
because the strikers learned from third parties unrelated to the employer that they had not been discharged, for example, through the fact that they were not able to access their 401K money.

[00:06:57] Speaker 00:
In order to do so, one of the requirements of the plan was that they, in fact, be discharged.

[00:07:03] Speaker 04:
Likewise, the maintenance of... Let me go back to your reliance on this.

[00:07:09] Speaker 04:
what is it called, Douglas Auto Tech case.

[00:07:14] Speaker 04:
There the board's saying that a lockout does not sever the employee-employee relationship, all right?

[00:07:24] Speaker 04:
But that doesn't get to the issue as it was decided at the ALJ level and then affirmed by the board, does it?

[00:07:34] Speaker 04:
In other words, if you're locked out,

[00:07:37] Speaker 04:
It's not the same as being discharged, but it doesn't mean that after the union sent a letter talking about lockout, circumstances didn't exist such that the employees had, or a reasonably proven employee, had reason to believe they were fired, namely not being let back in when they came saying,

[00:08:04] Speaker 04:
They were ready to return immediately, et cetera, in those circumstances that were relied on.

[00:08:13] Speaker 04:
So it's not a frozen-in-time case.

[00:08:17] Speaker 04:
It's just, as you say, the two words mean different things, but it doesn't mean they can't both exist at different points in time in an employer-employee relationship.

[00:08:29] Speaker 00:
Absolutely correct, Your Honor.

[00:08:33] Speaker 00:
The three instances relied upon by the board here do not support a change of circumstances that gives rise to a discharge.

[00:08:44] Speaker 00:
Quite the contrary, the complaint states that the only basis for the discharge is the December 22 letter from Sparks' attorney.

[00:09:01] Speaker 00:
The problem with the refusal to be allowed back in under that construct is if it happened, it happened three days prior to that letter.

[00:09:14] Speaker 00:
Of course the refusal to be let back in is inadmissible because it's burdened with double hearsay as explained in the brief.

[00:09:24] Speaker 00:
The only other

[00:09:25] Speaker 00:
example given by the board to justify this is a reference to picket line violence in the December 22 letter.

[00:09:35] Speaker 00:
So we have nothing that's after the fact that changes the relationship between the employer and the strikers that would give rise to a discharge.

[00:09:45] Speaker 04:
Well, I thought the employer never provided that information after the union had requested it as to what violence it was referring to.

[00:09:54] Speaker 04:
And then the whole issue about the health insurance, the pension, and it was one other thing that they realized.

[00:10:04] Speaker 00:
Yeah, the issue about the health insurance, there was one health insurance provider, obviously not controlled by the employer, who sent a notice to an employee that said the COBRA event that occurred was related to termination.

[00:10:21] Speaker 00:
There was a second letter that followed that up and clarified that was a result of a reduction in hours.

[00:10:26] Speaker 00:
Unfortunately, the benefit providers form does not include COBRA event because you decided to go on strike.

[00:10:34] Speaker 04:
So the fourth item that I was trying to remember was the fact that the employer offered a job to one of the strikers after one of the replacement employees left.

[00:10:52] Speaker 00:
Yes, as is required by late law.

[00:10:55] Speaker 04:
That was... That means that the striking employees, a reasonably striking employee would think, well,

[00:11:03] Speaker 00:
Well, because, in fact, Your Honor's point demonstrates that the employer A, had hired permanent replacements, and B, had complied with its obligations under laid law to reinstate those strikers when an open position became available.

[00:11:25] Speaker 04:
Well, that's a whole other issue.

[00:11:26] Speaker 04:
But I'm just getting into your first point about relying on this Douglas Auto case.

[00:11:33] Speaker 00:
But that does not...

[00:11:37] Speaker 00:
The reinstatement under laid law, which occurred in August of 2015, is not any sort of basis from which an employee could determine that he or she had been discharged.

[00:11:53] Speaker 00:
Again, that is compliant with the laid law obligation.

[00:11:57] Speaker 00:
That is the reason Sparks, in response to the strike, established the preferential reinstatement or hiring list.

[00:12:07] Speaker 00:
And that was provided to the union at the first time it asked for it in the wake of this August reinstatement.

[00:12:19] Speaker 00:
Interestingly, the board concedes that the employer affirmatively

[00:12:31] Speaker 00:
declared its hiring of permanent replacements no later than May of 2015 at a meeting.

[00:12:38] Speaker 00:
Notwithstanding that, the union made no effort to ask for the preferential hiring list until late August of 2015.

[00:12:47] Speaker 00:
So obviously, the union did not consider this a critical point, even though it was at the meeting in May and acknowledged that the employer

[00:12:56] Speaker 00:
had made this statement, at least at that time, if not earlier, and we obviously take the position, as indicated in the briefs, that that was made known earlier on.

[00:13:08] Speaker 01:
Moreover, there... Just one quick question.

[00:13:11] Speaker 01:
I want to ask you about a different subject, and that is the adverse inference.

[00:13:14] Speaker 00:
About?

[00:13:15] Speaker 01:
Yeah.

[00:13:16] Speaker 03:
Adverse inference.

[00:13:16] Speaker 01:
The adverse inference.

[00:13:18] Speaker 01:
The board says in its brief that

[00:13:24] Speaker 01:
that even if the adverse inference was inappropriate, the error was harmless.

[00:13:30] Speaker 01:
And I didn't see any response to that in your reply brief.

[00:13:33] Speaker 01:
Did I miss something?

[00:13:34] Speaker 00:
No, we address the adverse inference directly, which is... I know, but I'm asking you about the board's argument that even if you're right, the error was harmless.

[00:13:45] Speaker 00:
That is not addressed in the reply brief.

[00:13:48] Speaker 01:
I assume that meant you conceded that point.

[00:13:53] Speaker 00:
Thank you, Your Honor.

[00:13:55] Speaker 00:
I appreciate the opportunity to clarify that.

[00:13:57] Speaker 00:
We did not concede it.

[00:13:59] Speaker 00:
We believe that the adverse inference flows from the issue that the judge, the ALJ,

[00:14:09] Speaker 00:
took at the outset, which contaminated the entire decision that she made regarding permanent replacements, and that is that the employer had not produced... No, I think you're missing my point.

[00:14:26] Speaker 01:
That's the merits.

[00:14:27] Speaker 01:
They say, the board says, well, even if you're right about the adverse inference, it was harmless.

[00:14:34] Speaker 00:
I understand that, Your Honor.

[00:14:35] Speaker 00:
What I'm trying to point out is that because the ALJ erred, as a matter of fact, that the board had not produced these critical documents, the adverse influence falls when that falls.

[00:14:59] Speaker 00:
Anything further?

[00:15:00] Speaker 00:
I will, I had reserved two minutes for rebuttal and I'll cease at this point.

[00:15:06] Speaker 04:
Thank you.

[00:15:15] Speaker 05:
Good morning, Your Honors.

[00:15:16] Speaker 05:
Greg Sotero for the National Labor Relations Board.

[00:15:18] Speaker 05:
May it please the Court.

[00:15:21] Speaker 05:
I just wanted to pick up on something that Mr. Brooks said with regards to

[00:15:28] Speaker 05:
the Douglas case.

[00:15:30] Speaker 05:
The Douglas case established that you can't discharge employees who are locked out.

[00:15:36] Speaker 05:
And the reason that's irrelevant here is that the board found that the employees were not locked out.

[00:15:41] Speaker 05:
They were, in fact, discharged.

[00:15:43] Speaker 05:
Now, the sparks relies on the lockout idea because it said in its response to the employer that it perceived the employees had been locked out.

[00:15:54] Speaker 05:
The problem, as we've explained in our brief,

[00:15:57] Speaker 05:
is that the determination of whether employees are discharged is an objective determination based on what the reasonable employees would believe in their position.

[00:16:04] Speaker 05:
I'm sorry, yes?

[00:16:05] Speaker 03:
So an employer could think it was locking employees out, but if it did it in a way that created in a reasonable employee the impression that at that very same time he was being fired,

[00:16:23] Speaker 03:
it's your position that that employee is discharged.

[00:16:26] Speaker 05:
That's correct.

[00:16:26] Speaker 05:
The test is from the employee's perspective.

[00:16:28] Speaker 05:
Or, might I add, not necessarily if the employee thought he was discharged, but believed that his employment status, had reason to believe that his employment status has changed or was no longer as stated.

[00:16:41] Speaker 03:
Rendered ambiguous under the test that sounds like everybody agrees applies.

[00:16:45] Speaker 05:
Right.

[00:16:47] Speaker 03:
So from whose perspective do we assess the lockout?

[00:16:52] Speaker 03:
Do we look at what the employer intended?

[00:16:54] Speaker 03:
I was focusing when I was preparing on the perspective and burden for discharge, but I'm just wondering about the analogous question for lockout.

[00:17:08] Speaker 05:
You know, I am remiss on that.

[00:17:11] Speaker 05:
I'm not sure if the analysis is from a reasonable employee's perspective or what it is.

[00:17:18] Speaker 05:
I'm happy to look into that if you'd like.

[00:17:21] Speaker 05:
Because in this case, the board found that the employees reasonably thought they were discharged.

[00:17:25] Speaker 05:
I didn't go into that.

[00:17:27] Speaker 03:
And it could be including some facts that were involved in the lockout that created the reasonable impact.

[00:17:33] Speaker 05:
Sure, of course.

[00:17:34] Speaker 05:
The ultimate issue here, Your Honor, is that you have an employer who is

[00:17:42] Speaker 05:
saying various things and then relying on the union's perception of those things.

[00:17:47] Speaker 05:
But the union's position as the bargaining representative is not to convey or translate how the employees experience the employer's actions.

[00:18:01] Speaker 05:
And that's why sparks can't simply rely on the union's statements in this case.

[00:18:06] Speaker 05:
We have to look at how the employees themselves felt about it.

[00:18:10] Speaker 03:
or reasonable employees in their position.

[00:18:13] Speaker 05:
Exactly, reasonable employees in their position.

[00:18:14] Speaker 05:
I'm sorry, that was a shorthand.

[00:18:21] Speaker 05:
Since Mr. Brooks didn't speak at all about the permanent reinstatement issue, I would like to say a couple things about that.

[00:18:30] Speaker 05:
And that issue turns on- You mean permanent replacement?

[00:18:34] Speaker 05:
Yeah, I'm sorry, permanent replacement, the failure to reinstate.

[00:18:37] Speaker 05:
That issue turns on whether Sparks carried its burden to show that the replacements were permanently hired before the strikers made their offer to return to work.

[00:18:48] Speaker 05:
And so the question is, when were the job offers made and accepted?

[00:18:51] Speaker 05:
In this case, with the board found what Sparks does not dispute is that the job offer letters themselves don't show when the replacement employees accepted Sparks' offer.

[00:19:03] Speaker 05:
And Susan Edelstein's testimony is not probative as to that fact either.

[00:19:09] Speaker 05:
And Sparks hasn't even tried to contest those findings of the board.

[00:19:12] Speaker 05:
So simply on that basis alone, the court should affirm the board's finding.

[00:19:17] Speaker 04:
So what's the issue about the records?

[00:19:20] Speaker 04:
Is that going to clear up any of this?

[00:19:23] Speaker 05:
No, the whole records issue is that I'm assuming you're talking about the adverse inference and so on?

[00:19:29] Speaker 04:
Yes.

[00:19:29] Speaker 05:
Yeah.

[00:19:32] Speaker 05:
So there's two points about the adverse inference.

[00:19:36] Speaker 05:
First, Sparks doesn't dispute the fact that

[00:19:40] Speaker 05:
the legality or the legal reasoning of the board in this case, which is that it had records in its possession that could have helped determine the issue in this case, and it didn't provide them.

[00:19:54] Speaker 03:
Could those records have?

[00:19:55] Speaker 03:
I'm a little bit confused by that, because whether people are on the premises and being paid or not, which is what I gather those records go to,

[00:20:03] Speaker 03:
doesn't actually answer the terms on which they're there.

[00:20:06] Speaker 03:
Are they there as temporary employees?

[00:20:09] Speaker 03:
Are they there as permanent?

[00:20:11] Speaker 05:
Exactly.

[00:20:11] Speaker 03:
Replacements.

[00:20:12] Speaker 03:
And so it seems like a tempest in a teapot to focus on adverse inference from those records or supportive information in those records.

[00:20:22] Speaker 03:
I mean, the whole thing, I don't see its relevance if the point is the nature and understanding of the status of the employees, not whether they were there getting paid.

[00:20:33] Speaker 05:
And that's why we said, Your Honor, to Judge Tatel's point, that even if those records had been included, it wouldn't have changed the results, because all it would have shown was at what time those employees actually started working and started getting paid.

[00:20:50] Speaker 05:
And we know from this Court's decision in Gibson Greetings that you can work for an employer for two months before you actually found to be permanent.

[00:20:57] Speaker 03:
So I guess it could have proved that they were not there as permanent employees if they had shown they were not there at all.

[00:21:05] Speaker 03:
Before we knew what was in them, the reason that they're relevant is maybe these people who didn't come until January do want to see whether they're there.

[00:21:13] Speaker 03:
But once we know that they were actually there,

[00:21:17] Speaker 03:
That's not probative of their permanence or not.

[00:21:19] Speaker 05:
Exactly.

[00:21:20] Speaker 05:
What the board is saying is you're in a very messy situation here.

[00:21:25] Speaker 05:
You don't have specific evidence as to when the employees signed their offer letters.

[00:21:30] Speaker 05:
You don't know exactly when they started.

[00:21:33] Speaker 05:
Any of that evidence can help push you in one direction or the other.

[00:21:39] Speaker 05:
But that doesn't mean that specifically as to this evidence of when they started working, that would be somehow a silver bullet.

[00:21:47] Speaker 05:
The determinative issue.

[00:21:52] Speaker 05:
You'd still have, and this is our position in this case, you'd still have to show that the employees actually

[00:21:58] Speaker 05:
received these offer letters and signed them, accepted the offer on time.

[00:22:02] Speaker 03:
And can you just sum up what the basis is of your position that a reasonable employee in these employees' positions would have believed that they would discharge?

[00:22:13] Speaker 03:
What is the key evidence on that?

[00:22:15] Speaker 05:
The key evidence on that is the fact that SPARC hired security to prevent the employees from even entering the premises.

[00:22:27] Speaker 05:
Sparks refused the employees offer to return to work on December 19th at the height of the busy season when Sparks needs staff the most to cater to its clientele.

[00:22:40] Speaker 05:
At that moment, Sparks said, no, we don't want you here.

[00:22:44] Speaker 05:
And then there is the email that followed a couple days later or three days later saying, we don't want you here because we think

[00:22:52] Speaker 03:
You took the position in argument just a moment ago that just because something's communicated to the union doesn't mean it's communicated to the employees, but it seems like your treatment of Zimmerman letter is inverse to that, where you're saying the fact that a union official gets a letter means that the employees are necessarily on notice of that.

[00:23:12] Speaker 05:
With respect, the position I took is slightly different, which is that the union's view, the employer never said it was locking out the employees.

[00:23:22] Speaker 05:
They never told the union, we're locking out the employees.

[00:23:25] Speaker 05:
It was the union's response to the employer saying, we think the employees are locked out.

[00:23:30] Speaker 05:
And what I was saying is that the union is not

[00:23:34] Speaker 05:
the union's own view of the situation, it's not within the union's scope of agency to say what the employees are going to leave.

[00:23:43] Speaker 03:
But I guess if you assume that an agent and a client are communicating, that could be a two-way street.

[00:23:52] Speaker 05:
So we agree that within the scope of the union's agency,

[00:23:58] Speaker 05:
It's job is to serve as an intermediary between the employer and the employees.

[00:24:03] Speaker 02:
So when it gets the Zimmerman letter, the employees get the Zimmerman letter.

[00:24:07] Speaker 05:
Exactly.

[00:24:08] Speaker 05:
But what we're saying is that

[00:24:12] Speaker 05:
And speaking of two-way street, if the employees decide to make an offer to unconditionally return to work, the union transmits that offer to the restaurant.

[00:24:22] Speaker 05:
However, where it comes to the employee's own perception of the employer's actions,

[00:24:30] Speaker 05:
It's not the union's job to articulate those, whether to the employer or even to the board.

[00:24:36] Speaker 05:
And also it would be unfair to hold the employees responsible for the union's mistake in this case.

[00:24:44] Speaker 05:
Now if there was evidence, if there was evidence that the union had communicated to the employees, we think you're being locked out, don't worry, that would be a different ballgame.

[00:24:55] Speaker 05:
But we don't have anything to say so here.

[00:25:01] Speaker 05:
I don't believe I have anything further.

[00:25:06] Speaker 05:
I just want to make one quick point which is that in

[00:25:11] Speaker 05:
In Sparks' reply, they say that they fully complied with the unlawful solicitation claim.

[00:25:22] Speaker 05:
That is untrue, respectfully.

[00:25:24] Speaker 05:
Sparks has not posted a notice, has not complied with the board's order in this case, and it also waived the issue in its opening brief, so we still ask that be enforced fully.

[00:25:32] Speaker 05:
Yes.

[00:25:32] Speaker 03:
What do you make of the, to the extent that you're saying the Zimmerman letter is sort of constructively or presumptively

[00:25:38] Speaker 03:
They make a big deal out of the fact that he says we aren't able to bring you on at this time as if maybe they're treating them as laid law employees or employees subject to those obligations.

[00:25:55] Speaker 05:
I think that's semantics for two reasons.

[00:25:58] Speaker 05:
We can't bring you on at this time because we think you're a danger to our clientele, our staff.

[00:26:04] Speaker 05:
We think you've trespassed and committed property damage.

[00:26:08] Speaker 05:
I think the board's inference, which this court defers to, that employees, reasonable employees, would consider that as a sign that they're terminated rather than they would look at the fine print to say, oh, we still have a job.

[00:26:22] Speaker 05:
I think the board's inference is more reasonable than Sparks' on that point.

[00:26:26] Speaker 05:
And I would say that even if there was any question on that issue, the further you progress and the longer the employees realize that they're still not being reinstated.

[00:26:36] Speaker 05:
On January 8th, Mr. Zimmerman tells them,

[00:26:41] Speaker 05:
We're not reinstating the employees.

[00:26:43] Speaker 05:
We need to protect the employer's premises.

[00:26:45] Speaker 05:
Within a couple weeks, Sparks cancels its contract as a security agency.

[00:26:50] Speaker 05:
So they clearly don't think there's a security risk anymore.

[00:26:53] Speaker 05:
And yet, they're not reinstating.

[00:26:55] Speaker 05:
They don't reinstate employees until August.

[00:26:57] Speaker 05:
So we respectfully submit, Your Honor, that reasonable employees in that situation would not think that Sparks still has them on its employee list, but believe that they've been discharged.

[00:27:09] Speaker 05:
And on that point, Your Honors, if you have no further questions, we ask that the Board's order be enforced in full.

[00:27:14] Speaker 05:
Thank you.

[00:27:17] Speaker 04:
Thank you.

[00:27:17] Speaker 04:
All right, Council for Petitioners.

[00:27:19] Speaker 00:
Thank you, Your Honor.

[00:27:27] Speaker 00:
Douglas Auto Tech case does not stand for the proposition that an employer cannot discharge locked out employees.

[00:27:35] Speaker 00:
To the contrary, it goes to the issue of the status of the employees and says that when an employer

[00:27:43] Speaker 00:
acknowledges that an employee is locked out, the employee has not been discharged.

[00:27:50] Speaker 00:
The reverse is applicable here.

[00:27:54] Speaker 00:
The union, and Mr. Chowder speaks of a two-way street, but it seems to be running only in one direction, and that's against Sparks.

[00:28:01] Speaker 00:
is that the union is a conduit for all information coming from the employer but is not a conduit from the information coming from the employees.

[00:28:15] Speaker 00:
The lack of a discharge is manifested again by the lack of testimony and the burden of proving the discharge

[00:28:25] Speaker 00:
is clearly and unequivocally on the general counsel.

[00:28:30] Speaker 00:
And that was not done as seen by the failure to ask, let alone elicit, any testimony from any of the Sparks employees about discharge, about the indicia of discharge.

[00:28:46] Speaker 00:
Had they filed a claim for workers' compensation?

[00:28:50] Speaker 00:
Had they been able to achieve to

[00:28:55] Speaker 00:
retrieve their 401k benefits, and the answer to that question was an unequivocal no.

[00:29:01] Speaker 03:
The Zimmerman response has... Those are good points, but they're not in the ALJ's opinion, and we're really looking at it under a substantial evidence lens.

[00:29:16] Speaker 00:
Yes, but there's no evidence.

[00:29:18] Speaker 00:
There's absolutely no evidence in the record.

[00:29:20] Speaker 00:
And the burden is on the board.

[00:29:24] Speaker 03:
What about the evidence?

[00:29:26] Speaker 03:
You have been violent thugs.

[00:29:28] Speaker 03:
We don't want to even physically let you come into the restaurant unescorted.

[00:29:34] Speaker 00:
I want to, if I may, Your Honor, I would like to separate

[00:29:40] Speaker 00:
those two issues.

[00:29:42] Speaker 00:
You have been violent thugs, as stated in not quite those words in the Zimmerman response, is really tailored to fit precisely the standard articulated in Avery Heights.

[00:29:58] Speaker 00:
And Avery Heights says, you can come forward in the existence of picket line violence, you can come forward and you can state that.

[00:30:07] Speaker 00:
And as a result of that, you do not have to disclose that you have hired permanent replacements.

[00:30:15] Speaker 00:
That's what was done.

[00:30:15] Speaker 00:
That's all that was done.

[00:30:16] Speaker 03:
Was there picket line violence here?

[00:30:18] Speaker 03:
There was no evidence or finding of that.

[00:30:20] Speaker 03:
And in fact, in your briefing, you received from that as a reason.

[00:30:24] Speaker 03:
And when the case was actually adjudicated, nobody substantiated any picket line violence.

[00:30:29] Speaker 00:
Well, there was actually uncontroverted testimony from the security company itself, a third party, as to what had happened in terms of broken windows.

[00:30:41] Speaker 01:
Well, Union Council asked specifically for the employer to document claims of violence and it never responded.

[00:30:49] Speaker 00:
Because the claim of violence was not the

[00:30:53] Speaker 00:
The claim of violence was relevant only to the Avery Heights issue.

[00:30:58] Speaker 00:
It wasn't a claim of violence that was being used or ever used as a basis for a discharge.

[00:31:05] Speaker 00:
Quite the contrary.

[00:31:06] Speaker 00:
In the negotiating sessions in January of 2015, to which Mr. Souter made reference, there is testimony that at those meetings,

[00:31:16] Speaker 00:
The status of the employees was reiterated to be active employees.

[00:31:23] Speaker 00:
That is inconsistent with discharge.

[00:31:25] Speaker 00:
We don't have to look to Douglas Auto Tech to get to the issue of discharge being impossible here.

[00:31:33] Speaker 00:
Inconsistent with all of the facts in the record.

[00:31:36] Speaker 00:
We can't look to facts not in the record.

[00:31:41] Speaker 03:
So you're saying that the employer says the employees

[00:31:44] Speaker 03:
we're scared of you and we're scared that you're going to harm our patrons and our property.

[00:31:51] Speaker 03:
They have a right under Abraham Heights to say that rather than we've hired permanent replacements for you because they're permitted, they're shielded in whether they communicate that they've hired permanent, but they're saying that and yet whether that's true or not is not relevant.

[00:32:11] Speaker 03:
I mean, if I'm a reasonable employee and I hear my

[00:32:15] Speaker 03:
employer saying that to me, that's not going to create an ambiguity in my mind as to whether I've been discharged?

[00:32:23] Speaker 00:
I think the answer is the letter has to be viewed, and the comment has to be viewed, in terms of the reasonable, prudent employee standard.

[00:32:33] Speaker 00:
in relationship with Avery Heights.

[00:32:37] Speaker 03:
Avery Heights, I mean, does the employee know, oh, that must be, I mean, think about how people take things they shouldn't take personally, quite personally.

[00:32:47] Speaker 03:
If you're accused of being really a bully and having committed violence, you're gonna think, they don't really mean that, that they're accusing me of that.

[00:32:59] Speaker 00:
I think it's read a little bit out of context because it does not say, we will not return you.

[00:33:05] Speaker 00:
It says, we have decided not to return the strikers at this time.

[00:33:13] Speaker 03:
We're going to put them through anger management and then return them.

[00:33:16] Speaker 00:
No, well, a cooling off period in a strike is not an unusual situation.

[00:33:21] Speaker 00:
And that's actually what happened here.

[00:33:23] Speaker 00:
Because had there been an intent not to return, how do we explain the immediate contemporaneous creation of the Laidlaw List and the later use and implementation of the Laidlaw List and the reinstatement of one by one by one every one of the strikers?

[00:33:44] Speaker 00:
And contrary to the statement made by Mr. Souter, the poster has been placed with respect to the solicitation issue.

[00:33:51] Speaker 00:
And as pointed out in the brief, we didn't argue that issue, because obviously, looking at the comments of Mr. Kupowitz, it was a statement made in his personal capacity that was contrary to the interest of Sparks.

[00:34:06] Speaker 04:
Without arguing the merits of that, you say the notice was posted.

[00:34:11] Speaker 00:
Yes.

[00:34:12] Speaker 04:
Is that in the record?

[00:34:14] Speaker 00:
I know because it was all post-hearing.

[00:34:18] Speaker 00:
The record was posted in compliance with the original order of the ALJ.

[00:34:23] Speaker 00:
So there would be no basis to put it in the record.

[00:34:26] Speaker 00:
I'm unaware of the basis for Mr. Souter's unsupported statement.

[00:34:31] Speaker 04:
Well, presumably he's looking at the record that's before the court.

[00:34:35] Speaker 00:
But there's nothing in the record before the court about what happened post-hearing to comply with the ALJ's order.

[00:34:45] Speaker 04:
Yes.

[00:34:46] Speaker 00:
All right.

[00:34:48] Speaker 00:
Finally, if I may.

[00:34:51] Speaker 04:
Briefly.

[00:34:52] Speaker 00:
Very briefly, Your Honor, and thank you.

[00:34:57] Speaker 00:
The issue of the date of signing of the offer letters is a red herring.

[00:35:02] Speaker 00:
The offer letters were not introduced to demonstrate a start date because Sparks was led to believe that the issue of whether they had hired permanent replacements before the unconditional offer to return to work was not before the ALJ.

[00:35:23] Speaker 00:
The only reason the offer letters were introduced was to demonstrate the number of permanent replacements, because the general counsel made no reference in her opening statement before the ALJ that the issue of whether Sparks had hired permanent replacements was before that body.

[00:35:45] Speaker 00:
The only issue raised by the general counsel with respect to the permanent replacements was whether Sparks had hired enough

[00:35:53] Speaker 00:
And there are two cases that are critical here.

[00:35:56] Speaker 00:
The red herring issue about the date of signing the letters is demonstrated by Gibson Greetings.

[00:36:02] Speaker 00:
Gibson Greetings, as Mr. Souter acknowledged,

[00:36:05] Speaker 00:
The permanent replacements were hired, and it wasn't until two months later that the employer unilaterally posted a memorandum saying, this will confirm that all of you are permanent replacements.

[00:36:18] Speaker 00:
There was no counter-signature required, no statement required, no oral acknowledgment required.

[00:36:24] Speaker 00:
And that is what happened here.

[00:36:27] Speaker 00:
In answer to your questions, Judge Pillard,

[00:36:30] Speaker 00:
The commencement of work, and the ALJ was very clear on this, that those records, the weekly tip sheets and the daily tip sheets from the December 15 to December 21 period was direct probative evidence of when the permanent replacements started.

[00:36:48] Speaker 00:
That is the end of that issue.

[00:36:50] Speaker 03:
Well, she thought, erroneously it turns out,

[00:36:54] Speaker 03:
that they would, first of all, that you hadn't turned them over, and second of all, that they would show perhaps that people hadn't even started working.

[00:37:02] Speaker 03:
But it does seem like once you see they're working, you don't actually know on what term until you have some evidence of permanence, which was your client's burden.

[00:37:16] Speaker 00:
But the permanence is manifested by the mutual agreement.

[00:37:19] Speaker 00:
And the mutual agreement is manifested by reading the offer letter together with the commencement of work.

[00:37:25] Speaker 00:
That is gifts and greetings.

[00:37:26] Speaker 00:
And that is what happened here.

[00:37:28] Speaker 00:
And the judge actually said they would have such records, if they showed these hires had started working on or before December 19, would have tended to substantiate Sparks' position that they were permanent replacements.

[00:37:45] Speaker 00:
And that is what happened.

[00:37:46] Speaker 00:
And if the court believes that that issue is not capable of being determined now on the record because of the status of those documents, then clearly under Blake construction, the issue should be remanded to the board with a direction that the records for that period

[00:38:09] Speaker 00:
be accepted into evidence and be used to determine the issue of permanent replacements.

[00:38:17] Speaker 04:
All right.

[00:38:17] Speaker 04:
Thank you.

[00:38:18] Speaker 00:
Thank you very much, Your Honor.

[00:38:19] Speaker 00:
Thank you, Your Honors.

[00:38:20] Speaker 04:
We will take the case under advisement.