[00:00:00] Speaker 01:
Case number 19-1025.L.

[00:00:40] Speaker 03:
Good morning, judges.

[00:00:41] Speaker 03:
May it please the court.

[00:00:42] Speaker 03:
My name is Tae Young Kim, and with my partner, Michael Patrick McCarty Sr., we represent the petitioner in this matter, Napleton 1050, doing business as Napleton Cadillac of Libertyville.

[00:00:53] Speaker 03:
The NLRB aired by adopting and affirming three procedural rulings and three substantive rulings by the ALJ.

[00:01:00] Speaker 03:
For the procedural rulings,

[00:01:02] Speaker 03:
The board went against its past precedent and did not offer any reasons for why it was diverted from those rulings.

[00:01:09] Speaker 03:
First, the sequestration of our lead attorney, Mr. Hendricks, because he was going to testify at the trial goes against the board's ruling in Greyhound Lines, which allows witnesses who will testify at the hearing to stay in the hearing room if they are essential to the case.

[00:01:23] Speaker 03:
As lead attorney for us, he is obviously essential.

[00:01:25] Speaker 03:
to the case.

[00:01:28] Speaker 01:
And the second procedural error, it was not allowing Mr. McHarg to retain the... Did Mr. McHarg represent in some pre-trial, pre-hearing conferences to the general counsel that he would be, lead respondent's counsel at the hearing because Hendricks was a prospective witness?

[00:01:47] Speaker 03:
Well, Mr. McHarg said that they were, they were both going to represent our client, Nableton.

[00:01:53] Speaker 01:
The general counsel's

[00:01:55] Speaker 01:
brief that state, the pre-hearing brief before the ALJ said that McCargh represented that he would serve as respondent's counsel at the hearing because Hendricks was a prospective witness.

[00:02:10] Speaker 01:
And I didn't see you denying that in your briefing to the ALJ.

[00:02:13] Speaker 03:
Well, we don't deny that Mr. Hendricks was going to be the witness in the matter.

[00:02:19] Speaker 01:
And the key language here is that McCargh said that he would serve as respondent's counsel at the hearing.

[00:02:25] Speaker 03:
Correct.

[00:02:26] Speaker 01:
Okay, so then Mr. Hendricks was not the lead counsel, as you had said?

[00:02:31] Speaker 03:
He was the lead counsel negotiating with the union and the board.

[00:02:34] Speaker 01:
Oh, but not lead counsel for me.

[00:02:35] Speaker 01:
Not lead counsel for me.

[00:02:36] Speaker 01:
I'm sorry, I misunderstood what you said.

[00:02:38] Speaker 03:
My apologies.

[00:02:38] Speaker 03:
I made a mistake.

[00:02:39] Speaker 03:
Judge Malek.

[00:02:40] Speaker 00:
Mr. Kent?

[00:02:41] Speaker 00:
Oh, did you?

[00:02:42] Speaker 00:
Yes, just a second.

[00:02:44] Speaker 00:
I mean, did you allege that there was any prejudice from these procedural errors?

[00:02:48] Speaker 03:
Yes, we did.

[00:02:49] Speaker 00:
In your opening brief?

[00:02:51] Speaker 03:
I believe we did.

[00:02:53] Speaker 00:
And what was that prejudice?

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Mr. McCargh had tried the case on his own.

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He was unable to

[00:02:59] Speaker 03:
I guess, one, proper look at the witness affidavits, two, handle the subpoena issues, which we'll discuss, and it's an LRB hearing or trial by fire.

[00:03:09] Speaker 03:
There's no pretrial discovery.

[00:03:12] Speaker 03:
And with Mr. Hendricks, the lead attorney, as far as with the negotiations with the union part, Mr. McHarg did not have that information squarely within front of him.

[00:03:20] Speaker 03:
So he had to deal with all of that by himself.

[00:03:23] Speaker 03:
That just caused him prejudice.

[00:03:25] Speaker 01:
But you just agree that he went into the hearing planning to be the lead counsel?

[00:03:28] Speaker 03:
Correct, with Mr. Hendricks providing him the information on the facts that he was going to ask.

[00:03:33] Speaker 04:
But being sequestered as a witness doesn't mean that he couldn't speak to him to ascertain any facts that he needed.

[00:03:41] Speaker 03:
Sure, I understand that Judge Wilkins, but Mr. Henderson not being in the courtroom while the other witnesses are testifying, he is – he's missing out on the facts of the case of – I guess the history that he lived through.

[00:03:52] Speaker 03:
So he's not sure or doesn't know what's being said or what the witnesses are testifying to.

[00:03:57] Speaker 03:
So in a sense, that leaves us

[00:03:59] Speaker 03:
fighting a case with one hand tied behind her back.

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So that's the prejudice there.

[00:04:04] Speaker 03:
The board doesn't mention that they had two attorneys with them as well, and the union had one attorney with them.

[00:04:09] Speaker 03:
So it's essential if you want to call us three against one at that time.

[00:04:15] Speaker 03:
And the second issue I wanted to address procedurally was the affidavits.

[00:04:19] Speaker 03:
The ALJ did not allow Mr. McCart to retain the witness affidavits throughout the hearing, which goes directly against the board's own ruling in Walmart.

[00:04:29] Speaker 03:
Walmart states that the council, not the ALJ, has the discretion whether to keep the affidavits throughout the hearing.

[00:04:39] Speaker 03:
Well, as one attorney, Mr. McHarg gets the witness affidavits, and he has about 10, 15 minutes at the most to look over the witness affidavits and do a cross-examination.

[00:04:49] Speaker 01:
Well, that's got nothing to do with retaining it.

[00:04:51] Speaker 01:
The issue here was whether they could retain it after the cross-examination.

[00:04:54] Speaker 01:
You know, you're not challenging the rule on the timing of when the affidavits are released.

[00:04:58] Speaker 03:
Well, no, we're not challenging when they're released.

[00:05:01] Speaker 03:
We're challenging the fact that Mr. McHarg has the right to retain them throughout, because that affidavit can also be used to cross-examine a different witness.

[00:05:09] Speaker 01:
So where's the prejudice?

[00:05:10] Speaker 01:
Which witness were you not able to cross-examine because you didn't have the affidavit?

[00:05:14] Speaker 03:
Well, that's something we really don't know at this point, Your Honor.

[00:05:17] Speaker 03:
We just didn't have that information in front of us for much longer than 15 minutes.

[00:05:23] Speaker 03:
As far as we could have cross-examined Mr. Cincinnati, which I'm sure the affidavits of Mr. Shue Cagle and the other plaintiffs, or the respondents in this one, I'm sorry, the plaintiffs in the matter.

[00:05:37] Speaker 03:
We could have used that for a cross-examination of other witnesses.

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We just didn't have the ability to do that.

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And that ruling just goes directly against the Walmart ruling.

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And as far as the subpoenas, the board's ruling in Midland National Life Sciences and McAllister Towing say it is a violation to dishonor a board subpoena.

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And that is exactly what Mr. Schuchegl did.

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But instead of placing any sanctions on Mr. Schuchegl or applying a preclusion rule,

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the ALJ and the board affirmed Mr. Shue Cagle to introduce and testify evidence on the very subpoena topic that he dishonored.

[00:06:14] Speaker 03:
That is clearly a violation.

[00:06:16] Speaker 03:
And as this board stated in Fort Dearborn v. NLRB... Do you think that toolbox would have been allowed into the courthouse?

[00:06:21] Speaker 03:
Well, the issue is not whether the toolbox... Do you think the toolbox... I'm just asking... No, there was no way we could have brought the toolbox within the courtroom.

[00:06:29] Speaker 03:
But the fact is that Mr. Shue Cagle was served the subpoena 14 days prior to the hearing.

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We heard nothing from Mr. Schubkegel, his counsel, the union, or the board as far as offering an accommodation.

[00:06:41] Speaker 01:
Were any of them served with a subpoena other than Mr. Schubkegel?

[00:06:44] Speaker 03:
I'm sorry.

[00:06:44] Speaker 01:
Were any of them served with a subpoena other than Mr. Schubkegel?

[00:06:48] Speaker 03:
That I don't know.

[00:06:49] Speaker 01:
Well, that would probably explain their silence.

[00:06:51] Speaker 03:
Well, I mean, the union, the board, and Mr. Schubkegel are all working together on this.

[00:06:57] Speaker 03:
The board called Mr. Schubkegel as a witness.

[00:07:01] Speaker 01:
issue a subpoena for something that you knew couldn't possibly be brought into the courthouse?

[00:07:05] Speaker 03:
Well, it's not necessarily that it couldn't be brought into the courthouse.

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That's not to issue judges.

[00:07:08] Speaker 03:
They never offered us an accommodation.

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They never contacted us.

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The only way we found out that the subpoena was not complied with was when we showed up to the hearing that day.

[00:07:18] Speaker 03:
They could have called us and said you could come expect the toolbox at a neutral site.

[00:07:22] Speaker 03:
They could have brought the toolbox in front of the courthouse and we couldn't have expected it there with the ALJ.

[00:07:26] Speaker 01:
And the ALJ offered those kinds of things, right?

[00:07:28] Speaker 03:
They didn't offer us any of that.

[00:07:29] Speaker 01:
I thought the ALJ said that you could go inspect it if you needed to.

[00:07:33] Speaker 03:
Correct, but then he did take the testimony of Mr. Shue Cagle over our objection.

[00:07:39] Speaker 01:
But you could have inspected it during the hearing time.

[00:07:41] Speaker 03:
We could have, but then now we have the problem of Mr. McHarg trying to case it by himself.

[00:07:46] Speaker 03:
So it's kind of a circular argument, but then we have one man trying to case versus three, and he's going to go inspect the toolbox after five.

[00:07:55] Speaker 03:
at the courthouse the next morning.

[00:07:58] Speaker 03:
So with these rulings, as stated in the Fort Dearborn, that go against the Board's precedent, without an explanation why they're diverting from the past precedent, as stated in the Fort Dearborn, is the definition of arbitrary and capricious.

[00:08:11] Speaker 03:
Now moving to the procedural issues, when the Board affirmed the unlawful surveillance violation, Member Emanuel

[00:08:20] Speaker 03:
And Chairman Ring noted that their decision today was not unanimously accepted, and they cited to an A circuit case called Greater Omaha, which I think is key here because the facts are very similar.

[00:08:31] Speaker 03:
In Greater Omaha, we had two employees who were being terminated, and while they were being terminated, the employer said, I know that you two are the ones who started this, and this is being union activity.

[00:08:42] Speaker 03:
The court in Greater Omaha stated that there was no unlawful surveillance because that statement made while those two employees were being terminated could not coerce or restrain their pro-union activity.

[00:08:54] Speaker 03:
Thus, there could not be any unlawful surveillance.

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And that is exactly what we have here.

[00:09:00] Speaker 04:
When Mr. Inman told... But that's not the argument you made in your exceptions to the board.

[00:09:04] Speaker 04:
I mean, we tracked down your brief and all you said was the statement was ambiguous.

[00:09:10] Speaker 04:
And so it couldn't be deemed surveillance.

[00:09:17] Speaker 04:
And so I don't see how that puts, you didn't make the argument before the board.

[00:09:21] Speaker 04:
It seems to me that you can't.

[00:09:23] Speaker 04:
make a new argument here that under our precedent, not under rule 10E, I guess it is, it's four feet.

[00:09:31] Speaker 03:
Well, I believe we made other obsessions to that as well, Judge.

[00:09:34] Speaker 03:
We made obsessions that no one else heard of the statement, that Mr. Russell's wife was with him at the dealership, but she wasn't there at the time.

[00:09:41] Speaker 01:
None of that is what you argued in your brief here.

[00:09:43] Speaker 03:
That is not correct.

[00:09:44] Speaker 03:
What we're saying is that that ruling

[00:09:48] Speaker 03:
there is no, it's applying the improper legal standard is what we're saying now in our briefs.

[00:09:53] Speaker 03:
Because there was no coercion or possibility of coercion or restraint on fair labor acts, there could be no lawful surveillance violation.

[00:10:02] Speaker 04:
But my point is that seems to be different than the argument you made in your exceptions.

[00:10:07] Speaker 03:
Than one of them, yes.

[00:10:09] Speaker 01:
Did you raise it in any of your exceptions?

[00:10:12] Speaker 03:
As far as the proper legal standard?

[00:10:15] Speaker 03:
Yes.

[00:10:18] Speaker 03:
Now, regarding the toolbox removals, under the board's ruling and Judge Emanuel, excuse me, Member Emanuel's cited, concrete pipe, we are allowed to remove the toolboxes of the strikers if they do strike.

[00:10:32] Speaker 03:
It's only a violation if we remove them because of a strike.

[00:10:36] Speaker 03:
And here is where the board's logic falls apart.

[00:10:39] Speaker 03:
The board says, we know that you removed the, and I see my time is up.

[00:10:44] Speaker 03:
Judge, okay.

[00:10:45] Speaker 03:
And the board says, I know that you removed

[00:10:47] Speaker 03:
the toolboxes from the Napleton store because they struck.

[00:10:51] Speaker 03:
We know this because your other six doses that struck on the same day, you did not remove those.

[00:10:56] Speaker 03:
But that logic falls flat considering that the board and its ruling and its brief ignores the 731 meeting that Mr. Rinello had with the technicians prior to the strike recess.

[00:11:08] Speaker 03:
We all know that the NCDC is going to strike tomorrow.

[00:11:12] Speaker 03:
We're not a part of the NCDC.

[00:11:13] Speaker 03:
I'm asking you, are you going to strike with them, or do you want to take advantage of this opportunity and make as much money as you want?

[00:11:20] Speaker 03:
We'll let you come in early.

[00:11:21] Speaker 03:
We'll let you stay late.

[00:11:22] Speaker 03:
We'll funnel in business from one of our Cadillac dealerships that's a part of the NCDC, and you can make as much money as you want.

[00:11:28] Speaker 03:
When Mr. Ranello asked them, are you with me, they said, yes, yes, that sounds great.

[00:11:34] Speaker 03:
When we showed up the next day, we were shocked to find out that they did not show up and they were on strike.

[00:11:41] Speaker 03:
we didn't remove the toolboxes because they struck.

[00:11:43] Speaker 03:
If that was the case, we would have removed the toolboxes from all seven of the dealerships that went on strike.

[00:11:48] Speaker 01:
Okay, I think we understand your argument.

[00:11:52] Speaker 01:
I'll give you a couple of minutes for rebuttal.

[00:11:53] Speaker 01:
Okay, thank you.

[00:12:13] Speaker 05:
May it please the Court, Jared Cantor, on behalf of the National Labor Relations Board.

[00:12:18] Speaker 05:
Your Honors, for Napleton to prevail here, it's asking this Court to blink away the credited undisputed evidence.

[00:12:27] Speaker 05:
It's asking the Court to blink away the Board's reasoned analysis, which as we point out in our brief, much of which is undisputed and unchallenged.

[00:12:36] Speaker 05:
and sometimes only belatedly in the reply brief.

[00:12:39] Speaker 05:
And I think certainly, respectfully submitted, it's shown by Napleton opening argument today talking about the procedural

[00:12:49] Speaker 05:
Not that they're side issues, but the horse and cart are kind of reversed, if really the layoff and discharge are what is so upsetting to them.

[00:12:59] Speaker 01:
Certainly I'm prepared to discuss those, and if your honors have questions, otherwise I will respond to the procedural claims that they have opened with as... Where in the Walmart decision or the case handling manual does the ALJ get the discretion, the ALJ get the discretion to decide whether to allow them to keep

[00:13:19] Speaker 01:
the affidavits till the end of the hearing.

[00:13:21] Speaker 05:
Well, Your Honor, that comes from both the board's rule and then the case handling manual.

[00:13:25] Speaker 05:
So these are confidential witness statements.

[00:13:28] Speaker 05:
These are normally things that are not shown.

[00:13:34] Speaker 05:
They are shown for the limited purpose of cross-examination.

[00:13:38] Speaker 05:
And the board's case handling manual, which I'll make two points about, talks about that they may be permitted to retain them if there's a legitimate trial purpose.

[00:13:49] Speaker 05:
Council talks about Napleton and it talks about a footnote in Wal-Mart.

[00:13:55] Speaker 01:
I'm reading from the manual, 103.94.9.

[00:14:02] Speaker 01:
If counsel for the respondent desires, which they did here,

[00:14:06] Speaker 01:
Respondent may be permitted to retain the affidavits until the hearing is closed, provided that they are retained for legitimate trial purposes.

[00:14:13] Speaker 05:
That's not the manual, Your Honor.

[00:14:15] Speaker 05:
That's the language that they're quoting from footnote three in Walmart, which is language from 1970.

[00:14:23] Speaker 01:
Did it change?

[00:14:24] Speaker 05:
Yes.

[00:14:24] Speaker 05:
The language that we quote in our brief is the language that wasn't effective this hearing.

[00:14:35] Speaker 05:
And so we cite that in our brief.

[00:14:38] Speaker 05:
In their reply brief, Napleton says, you're wrong to rely on this.

[00:14:43] Speaker 05:
It's from 2019.

[00:14:44] Speaker 05:
The most recent version.

[00:14:49] Speaker 04:
What page on your brief are you talking about?

[00:15:06] Speaker 05:
This would be starting at page 50.

[00:15:11] Speaker 05:
50 to 51, we cite the language that wasn't affected this hearing.

[00:15:18] Speaker 05:
We cite the claim.

[00:15:18] Speaker 01:
Sounds like what I just read.

[00:15:20] Speaker 01:
Respondent may be permitted to retain the affidavits until the hearing is closed, provided they are retained for legitimate trial purposes.

[00:15:27] Speaker 01:
That's what I just read to you.

[00:15:28] Speaker 05:
May be permitted.

[00:15:30] Speaker 05:
Sorry, Your Honor.

[00:15:30] Speaker 05:
I thought you had the if he so desires.

[00:15:33] Speaker 05:
That language is not in the case handling manual.

[00:15:35] Speaker 01:
Okay, so.

[00:15:36] Speaker 05:
That was the prior language.

[00:15:38] Speaker 05:
It used to be the footnote three in Wal-Mart, which is citing, and that language was, if he so desires, counsel may retain him.

[00:15:48] Speaker 05:
That language was changed at some point to the language that was in effect in this hearing.

[00:15:53] Speaker 05:
We cite the, and this is a point they make in the reply brief, we cite the most recent version of the case handling manual, which is 2019.

[00:16:03] Speaker 01:
I thought it said, if counsel for respondent desires now.

[00:16:07] Speaker 01:
Does it not say that?

[00:16:08] Speaker 05:
The case handling manual?

[00:16:09] Speaker 01:
The one that you're talking about?

[00:16:10] Speaker 01:
No, it does not.

[00:16:11] Speaker 01:
Does it not say, if counsel for respondent desires?

[00:16:16] Speaker 05:
Yes, he has to ask for it.

[00:16:18] Speaker 05:
OK, yes.

[00:16:18] Speaker 05:
But the may be permitted.

[00:16:20] Speaker 01:
So they have to ask for it.

[00:16:22] Speaker 01:
So the language hasn't changed.

[00:16:24] Speaker 01:
The old version, and that's what's indicated on the cover sheet that says what's changed,

[00:16:30] Speaker 01:
If counsel for respondent desires, respondent may be permitted to retain the affidavits until the hearing is closed, provided they are retained for legitimate trial purposes.

[00:16:38] Speaker 05:
Yes, maybe.

[00:16:38] Speaker 01:
That's the current language?

[00:16:41] Speaker 05:
If counsel for respondent, the respondent desires, counsel may be permitted to retain the affidavits until the hearing is closed, provided that they are retained correct.

[00:16:51] Speaker 01:
That's the exact same language other than maybe it says counsel rather than respondent from the old manual.

[00:16:56] Speaker 01:
So it hasn't changed in any substantive way.

[00:16:59] Speaker 05:
I'll pull the footnote.

[00:17:05] Speaker 01:
Here's the language from the prior manual that they rely on, that Walmart had.

[00:17:13] Speaker 01:
If counsel for the respondent desires, is that the same?

[00:17:16] Speaker 02:
Yes.

[00:17:18] Speaker 01:
Respondent may be permitted, is that the same or it says counsel may be permitted?

[00:17:21] Speaker 05:
Respondent may be, yes.

[00:17:22] Speaker 01:
May be permitted to retain the affidavits until the hearing is closed.

[00:17:26] Speaker 01:
provided they're retained for legitimate trial purposes.

[00:17:29] Speaker 05:
Yes.

[00:17:29] Speaker 01:
Sounds like the language hasn't changed at all.

[00:17:32] Speaker 05:
Well, the parts there have changed, but... What parts?

[00:17:36] Speaker 05:
Well, they're switching to counsel to respond.

[00:17:38] Speaker 05:
Okay.

[00:17:39] Speaker 05:
But they're citing... That doesn't matter.

[00:17:41] Speaker 05:
No.

[00:17:42] Speaker 05:
Certainly the key point is that the case handling manual, in effect at the time, is the one that we cited in the brief, not the footnote... Okay, so maybe they cited the wrong one, but if the language is the same, why does that matter?

[00:17:54] Speaker 05:
Well, all that matters is the maybe permitted part.

[00:17:57] Speaker 05:
And this is the prejudice argument that at the hearing, counsel was insisting, citing Walmart, that he had the right to retain these throughout the hearing.

[00:18:13] Speaker 01:
Is there any escape that they wanted to retain them for legitimate trial purposes?

[00:18:17] Speaker 05:
Well, they never said why they wanted to, Your Honor.

[00:18:19] Speaker 05:
They asserted that they had a right to.

[00:18:24] Speaker 05:
And certainly the rule is, yes, if they desire, so they have the option to ask for it because the normal rule is that they do not.

[00:18:33] Speaker 04:
What was the ALJ's rationale for not allowing them to retain them?

[00:18:41] Speaker 05:
He said that that was not his normal practice to let them keep it throughout.

[00:18:46] Speaker 05:
And I believe he also said, if something comes up, you can ask for them.

[00:18:53] Speaker 05:
And that's what the board pointed out here in a footnote, citing its decision in Naperville, that there's nothing preventing them from asking them again.

[00:19:02] Speaker 01:
Well, it's hard to know when you want to ask if you don't have the information in front of you.

[00:19:08] Speaker 05:
They got to, counsel gets to review these before they cross-examine a witness.

[00:19:13] Speaker 05:
They did get to review if they asked for any of them, that's standard.

[00:19:17] Speaker 05:
There's no dispute, or at least they're certainly not claiming if there are any, they were denied the ability to review.

[00:19:23] Speaker 05:
And certainly, you look at these things, you look at them in light of the direct examination that just went on.

[00:19:32] Speaker 05:
And certainly in my years at the board, often people then when they go to cross-examination, they're doing it for the purpose of impeaching a witness because the testimony changed from their affidavit to the hearing.

[00:19:43] Speaker 05:
But in this case, they

[00:19:45] Speaker 05:
They did not explain, and they certainly have not made any prejudice argument in their opening brief or in their reply brief, what the prejudice was not getting to retain these throughout.

[00:19:56] Speaker 05:
And again, at the hearing, much like the sequester issue, they were asserting some type of a right to something, but not making any type of showing, even a bare minimum of explaining what the

[00:20:08] Speaker 05:
What the purpose was?

[00:20:08] Speaker 00:
Can I switch direction a little bit?

[00:20:10] Speaker 05:
Absolutely.

[00:20:11] Speaker 00:
So I'm interested in what the board says, what you say on your brief here on page 26, about the mass discharge context, right?

[00:20:23] Speaker 00:
So right line requires that the board demonstrate an employer had knowledge of the employee's union activity.

[00:20:30] Speaker 00:
And the exception to that is in the mass layoff context.

[00:20:34] Speaker 00:
But here, the board suggests that that principle is not cabin to cases involving numerous discriminities.

[00:20:42] Speaker 00:
Can you cite to any cases that support that principle?

[00:20:46] Speaker 05:
No, Your Honor, I was not able to uncover a situation exactly like the one at bar.

[00:20:51] Speaker 00:
So then is it the Board's position that this is a mass layoff context?

[00:20:55] Speaker 05:
No, Your Honor.

[00:20:56] Speaker 00:
It's that the principle that the Board relies on in those cases is also applicable here, where you have... It seems to me that all of the Board's cases and our precedent in Davis Supermarket suggests that a mass layoff is a necessary precondition.

[00:21:14] Speaker 00:
in order to eliminate the knowledge problem of Rightline?

[00:21:19] Speaker 05:
Well, Your Honor, Rightline is a test, and it's a test that the board uses in going after the fundamental question of whether protected activity was a motivating factor in an adverse employment action.

[00:21:32] Speaker 05:
And Rightline is a test that the board uses.

[00:21:34] Speaker 00:
And has the board satisfied?

[00:21:36] Speaker 00:
Did the general counsel prove all the elements of Rightline in this case?

[00:21:39] Speaker 00:
It doesn't seem to have.

[00:21:41] Speaker 05:
Well, it did, Your Honor, because the general counsel's theory of the case was that, based on these statements that had been made, that the motivating, unlawful motivation here was not individually what either of these men did, but it's that them, these technicians as a group,

[00:22:01] Speaker 00:
But then how does that fit within Rightline, which requires an employer's knowledge of each individual's union activity?

[00:22:08] Speaker 05:
Well, Your Honor, that is understandable in a case where the adverse action is predicated, the theory of the case is it's predicated on what that specific employee did.

[00:22:18] Speaker 05:
So certainly in a very traditional right-line case based all on circumstantial evidence, we don't have the admissions that we have here, two days after the election, Bob is called and is told, you're being let go, and maybe he's given a reason.

[00:22:34] Speaker 05:
Your performance has been unsatisfactory.

[00:22:36] Speaker 05:
The general counsel in building his case in front of the board is then going to have to show, well, Bob was engaged in union activity.

[00:22:44] Speaker 05:
He's going to have to show the employer knew about that.

[00:22:47] Speaker 05:
He's going to have to show some type of animus, whatever his case is going to be.

[00:22:53] Speaker 05:
The general counsel's theory was based on the evidence.

[00:22:56] Speaker 05:
And then certainly at this point, the question just is whether substantial evidence supports the board's finding of unlawful motivation.

[00:23:03] Speaker 00:
That's not my question.

[00:23:04] Speaker 00:
My question is whether the board applied its precedence in a consistent manner.

[00:23:09] Speaker 05:
Yes, Your Honor.

[00:23:10] Speaker 05:
Respectfully, yes.

[00:23:12] Speaker 05:
This is certainly a unique case.

[00:23:13] Speaker 05:
It's very novel.

[00:23:14] Speaker 05:
It would be, from my perspective, wonderful if all of my right-line cases had undisputed statements

[00:23:21] Speaker 05:
Basically, for Geisler, the board talks about that this is a veritable admission that his layoff was unlawfully motivated.

[00:23:31] Speaker 05:
And certainly, you know, canvassing discharges broadly.

[00:23:35] Speaker 05:
You know, Your Honor, there are cases which are sometimes known as black sheep, white sheep, where an employer, in order to get rid of the union adherence, discharges people who had no union activity or who might have been against the union.

[00:23:48] Speaker 05:
But they're still protected by the Act.

[00:23:50] Speaker 01:
Well, as a mass layoff issue, was there a prior board precedent that said you don't have to show individualized, knowledge of individual activity

[00:24:01] Speaker 01:
only in mass layoff situations or in what you call black-white?

[00:24:07] Speaker 01:
Had they said that principle is limited to those two situations?

[00:24:11] Speaker 05:
No, Your Honor, I'm not aware of any case where the board has said

[00:24:18] Speaker 05:
what your honor is describing it that way.

[00:24:22] Speaker 00:
It certainly, as I just said to Judge Rout, this is a novel and... You can't cite any cases where they have applied it outside of the mass layoff context either, this principle.

[00:24:32] Speaker 05:
I mean, this case stands somewhat unique and respectfully, again, I would love to have a case where we have these direct type of admissions of unlawful motivation that are credited and undisputed as we stand in the Court of Appeals.

[00:24:52] Speaker 05:
you know, to blink away that evidence.

[00:24:55] Speaker 05:
You know, if I might just conclude, as the board points out in cases like Tito and print fulfillment, often when you have those type of admissions, you don't even apply right line.

[00:25:07] Speaker 00:
But in Tito it was also obvious that there was a mass layoff situation.

[00:25:11] Speaker 00:
You still haven't cited a case where there wasn't.

[00:25:15] Speaker 00:
a mass layoff.

[00:25:16] Speaker 05:
Correct, Your Honor.

[00:25:17] Speaker 05:
And certainly in mass layoff cases, you don't always have admissions.

[00:25:19] Speaker 00:
And you're not suggesting this was a mass layoff here.

[00:25:22] Speaker 05:
No, Your Honor.

[00:25:23] Speaker 05:
It's the principle that underlies it there, that an employer can violate the act by discharging someone where that discharge is motivated.

[00:25:32] Speaker 00:
I understand that principle.

[00:25:34] Speaker 00:
I just don't see where it's consistent with the precedents.

[00:25:39] Speaker 05:
I'm over time.

[00:25:40] Speaker 05:
Unless there are any further questions.

[00:25:43] Speaker 05:
Thank you, Your Honor.

[00:25:47] Speaker 01:
We'll give Mr. Kim two minutes.

[00:25:49] Speaker 01:
Two minutes.

[00:25:51] Speaker 03:
Thank you, Judge Mudd.

[00:25:54] Speaker 03:
Judge Mudd, just two things.

[00:25:56] Speaker 03:
To address your first, the Walmart question case on the case handling manual you asked opposing counsel here.

[00:26:04] Speaker 03:
That manual that counsel is discussing, that was published in January or, I'm not actually, excuse me, I'm not sure if it was January, but it was published in 2019.

[00:26:15] Speaker 03:
The board entered the decision on September 28, 2018, so whatever manual he's talking about didn't even apply at the time when the board made its hearing.

[00:26:23] Speaker 03:
Secondly, as a case manual, it has no barrier.

[00:26:27] Speaker 03:
It doesn't overrule Walmart.

[00:26:30] Speaker 03:
And as you pointed out, the language is still the same as far as counsel has discretion whether to keep the affidavits throughout the hearing.

[00:26:38] Speaker 03:
Now, going to the mass layoff issue here, Judge Rausser pointed out there are two buckets.

[00:26:45] Speaker 03:
There's the right right, whether we knew that the employees Russell and Geiser were up to union activities and we terminated them.

[00:26:51] Speaker 03:
Because of that, or the second, the exception, the right kind exception under the mass layoff.

[00:26:57] Speaker 03:
It has to be either or.

[00:26:58] Speaker 01:
Why?

[00:26:59] Speaker 01:
Why would the National Labor Relations Act, why would Section 883

[00:27:04] Speaker 01:
want to allow employers to engage in retaliatory, retaliatory firings, as long as it's not done en masse.

[00:27:12] Speaker 03:
I'm sorry, Judge Milano.

[00:27:14] Speaker 01:
Why would Section 883 allow employers to engage in admittedly retaliatory firings

[00:27:22] Speaker 01:
as long as they don't do it en masse.

[00:27:25] Speaker 03:
Well, first we will disagree that it's retaliatory firing.

[00:27:28] Speaker 01:
I'm not, I'm just asking you the legal question.

[00:27:30] Speaker 01:
Sure, so what it is?

[00:27:31] Speaker 01:
I'm not talking about this case in particular, I'm talking about your legal principle.

[00:27:33] Speaker 01:
Why would Section 883 allow an employer to engage in admittedly retaliatory firings as long as they don't do it en masse?

[00:27:45] Speaker 01:
It's just three or four people.

[00:27:47] Speaker 03:
Well, it would have to be a mass layoff because we would have to know whether they were involved in the union or not.

[00:27:53] Speaker 03:
If we were setting an example to the other folks and saying, you better not conduct this pro-union activity because you've seen me laid off your friends or your colleagues, it would have to be on a mass scale.

[00:28:02] Speaker 03:
That is not our test.

[00:28:04] Speaker 01:
Why?

[00:28:04] Speaker 01:
You pick a few popular employees.

[00:28:06] Speaker 03:
But you fired them.

[00:28:08] Speaker 01:
Everyone knows what's going on.

[00:28:10] Speaker 03:
Sure, Judge, but under your hypothetical, respectfully, that is not the test that the board has set forth at the right line, and it's frankly not the test that this board has called.

[00:28:18] Speaker 01:
I'm asking you why Section 883?

[00:28:20] Speaker 01:
The other cases have involved, not all of them actually, but most of them have involved mass layoffs.

[00:28:28] Speaker 01:
or the black sheep, white sheep.

[00:28:30] Speaker 01:
But they haven't said only in these circumstances.

[00:28:34] Speaker 03:
Well, those cases have said either it's in a mass layoff where we didn't have to know whether they were pro-union or conducted pro-union activities, or we would have to do it under a straight right-line test, whether we would actually have to know whether they were pro-union or conducted.

[00:28:48] Speaker 01:
Where did the board say, you say the board's being inconsistent, where have they said that if it's not a mass layoff or firing,

[00:28:58] Speaker 01:
It's just a small number of targeted layoffs or firings.

[00:29:02] Speaker 01:
We must march through Whitemind.

[00:29:04] Speaker 01:
Where have they said that?

[00:29:05] Speaker 03:
Well, that's the thing, Judge.

[00:29:06] Speaker 03:
There is no third bucket, as you're trying to say.

[00:29:09] Speaker 01:
So they haven't said there's not.

[00:29:10] Speaker 03:
Right.

[00:29:10] Speaker 03:
Well, what I'm saying is that.

[00:29:11] Speaker 01:
They haven't said either way until this case.

[00:29:13] Speaker 03:
No, it is either way.

[00:29:14] Speaker 03:
What I'm saying is that bucket just does not exist.

[00:29:15] Speaker 03:
That third bucket, that second section, just doesn't exist.

[00:29:19] Speaker 01:
So if there was a prior case where they had found retaliatory firing applying the same text, where only

[00:29:27] Speaker 01:
three employees were fired, then there would be no inconsistency.

[00:29:32] Speaker 03:
But that would have to be a mass layoff.

[00:29:34] Speaker 00:
Isn't that third bracket precluded by the terms of right line?

[00:29:38] Speaker 03:
It is, Judge.

[00:29:40] Speaker 03:
You're absolutely right.

[00:29:41] Speaker 03:
A right line gives two tests, whether it's the straightforward one, as you said, that we would know, or it's either that or the mass layoff where we didn't know where we conducted a mass layoff.

[00:29:50] Speaker 03:
The terminations of two employees, it's just not a mass layoff.

[00:29:54] Speaker 04:
So if you had a situation where

[00:29:57] Speaker 04:
There was an employee who, let's say, the record is undisputed that he was against the union.

[00:30:04] Speaker 04:
And he said, I don't want a union.

[00:30:07] Speaker 04:
I want to keep my job.

[00:30:09] Speaker 04:
I have a sick wife and kids, and I need this job.

[00:30:12] Speaker 04:
I need the insurance.

[00:30:14] Speaker 04:
And he was a very popular employee.

[00:30:18] Speaker 04:
and the union gets voted in, and the employer says the way to really hurt these guys is to terminate that employee, like this most vulnerable employee, because they brought in the union.

[00:30:39] Speaker 04:
And that's the undisputed record, that they fire that employee kind of as a way to hurt

[00:30:48] Speaker 04:
hurt and embarrass and demoralize the workers who voted for the union.

[00:30:58] Speaker 04:
You don't think that violates 8A3?

[00:31:00] Speaker 03:
Not under the mass layoff.

[00:31:01] Speaker 03:
That would have to be a separate charge.

[00:31:04] Speaker 03:
And that's similar to the statement of Mr. Inves.

[00:31:08] Speaker 04:
It wouldn't be a separate charge.

[00:31:10] Speaker 04:
It wouldn't be... If an 8A3 violation were charged, that wouldn't be... It wouldn't fit within the terms of that.

[00:31:16] Speaker 03:
As far as 8A3, there are many charges you could bring under an 8A3 charge, whether it's an unlawful surveillance charge, whether it's an unlawful termination charge, or it's a disciplinary charge.

[00:31:26] Speaker 03:
It would just have to be a separate... It couldn't be an unlawful termination.

[00:31:31] Speaker 03:
if we did not know in your hypothetical, Judge Wilkins, that we knew that he was not pro-union.

[00:31:38] Speaker 03:
and we still terminated him.

[00:31:41] Speaker 03:
I guess a similar example of that is the one violation which we did not accept and which did not appeal was Mr. Inman's statement to Geisser where he says, I'm sorry, you got laid off.

[00:31:52] Speaker 03:
It's because we brought the union.

[00:31:53] Speaker 03:
That was a separate charge, but that does not take away the board's burden to establish the prima facie case under Whiteline, either under the straightforward test or the mass layoff test.

[00:32:04] Speaker 03:
They just not done that.

[00:32:08] Speaker 04:
So just so that I'm clear, your answer to whether that would be an unlawful termination, my hypo, where they say they brought in the union and we think that the way that we can best kind of punish them or teach them a lesson is to fire this innocent guy who's going to lose his job and his insurance and his kids and his wife are sick, but that will teach them a lesson.

[00:32:34] Speaker 04:
We'll fire that guy.

[00:32:36] Speaker 04:
And we won't even be able to be a charge because that guy was against the union.

[00:32:44] Speaker 04:
So this is perfect.

[00:32:45] Speaker 04:
We can fire that guy, use him as a scapegoat, and we'll never suffer any repercussions.

[00:32:52] Speaker 04:
Do you think that's the way the act is supposed to work?

[00:32:55] Speaker 03:
Judge, I would agree that under your circumstance that would have to be a separate charge though.

[00:33:01] Speaker 03:
It wouldn't fall under the two charges under the right line here as far as under the mass layoff theory or the straight right line.

[00:33:10] Speaker 03:
It would have to be a certain violation as far as you laid this person off because of the pro-union activities in general.

[00:33:18] Speaker 01:
But it would be an 83 violation.

[00:33:20] Speaker 03:
I would assume it followed it.

[00:33:21] Speaker 03:
As far as I apologize, Judge Wilkins, in your hypothetical, it's not something I was thinking about and I haven't conceptualized it.

[00:33:28] Speaker 03:
But as far as under the theories that the board brought, it falls into two buckets, and they've not met the prime efficient burden under either.

[00:33:36] Speaker 01:
So I apologize that I can't.

[00:33:37] Speaker 01:
When you say their theory, did their theory

[00:33:40] Speaker 01:
Did they charge you?

[00:33:41] Speaker 01:
They didn't charge you with a mass layoff.

[00:33:43] Speaker 03:
Well, that was the charge.

[00:33:44] Speaker 03:
A mass layoff?

[00:33:46] Speaker 03:
Yeah, that was stated by the ALJ and the JA24.

[00:33:51] Speaker 03:
If you look at the JA24, and I believe it's footnote 20, every single case of those are mass layoff cases.

[00:33:57] Speaker 01:
No, no, they may be like mass layoff cases.

[00:33:59] Speaker 01:
I'm just talking about the charge.

[00:34:00] Speaker 01:
Was the charge here an 8A3 violation, or was it a mass layoff at A3, or discrimination under 8A3?

[00:34:08] Speaker 03:
I'm sorry, I butted into your comment.

[00:34:11] Speaker 01:
I'm just, I want to understand what you mean by that they charged a mass layoff here.

[00:34:15] Speaker 03:
Well, that was their theory.

[00:34:17] Speaker 01:
This was a mass layoff?

[00:34:18] Speaker 03:
Well, that was their theory.

[00:34:20] Speaker 03:
Their theory was not a straightforward right line test as far as you know that Russell and Geist were pro-Union.

[00:34:26] Speaker 01:
Oh yeah, I get that they weren't doing a straight right line.

[00:34:29] Speaker 01:
What I'm asking is were they doing what Judge Wilkins hypothesized?

[00:34:33] Speaker 01:
How do we know they weren't doing what he hypothesized?

[00:34:35] Speaker 01:
That it was just discrimination?

[00:34:36] Speaker 03:
Because that's not in the record.

[00:34:37] Speaker 01:
Because of union activity.

[00:34:40] Speaker 03:
That's just not in the record.

[00:34:41] Speaker 03:
That's not part of the charge.

[00:34:42] Speaker 03:
They would still... When you say that's not part of the charge, that's not... I guess I'm misstating.

[00:34:47] Speaker 03:
So that would have to be part of the prime efficient case as far as

[00:34:51] Speaker 03:
the mass layoff, that's still part of their burden.

[00:34:54] Speaker 03:
They would have to prove, the board has to prove that we conducted a mass layoff under this alternative or exception under right line.

[00:35:04] Speaker 01:
But you just said that it would violate 8A3 even if it wasn't a mass layoff, if it was a punishment.

[00:35:10] Speaker 03:
Well, in Judge Wilkins' hypothetical, I would imagine it would be a separate charge.

[00:35:13] Speaker 03:
It would not be the charge that the board brought against us in this case.

[00:35:18] Speaker 01:
I know that they cited mass layoff cases for this principle, but did the charge

[00:35:29] Speaker 01:
Did you say you engaged in a mass layoff, or did you just say you engaged in a discriminatory firing?

[00:35:35] Speaker 03:
It was a discriminatory firing, but that falls under the bucket of the mass layoff, because it's either or.

[00:35:40] Speaker 03:
It's either the straight right line test, or... You just said it's not either or.

[00:35:43] Speaker 03:
Well, what I was saying under Judge Wilkinson there, I would imagine... I'm picturing a complaint, and I'm looking at the allegations of a complaint, and I see count one, straight right line, count two under Judge Wilkinson there, it's a different charge.

[00:35:56] Speaker 03:
That charge is not brought against us, Your Honor.

[00:35:59] Speaker 03:
The charge against us was kind of an ambiguous charge that falls into the mass layoff bucket, not the straight right line bucket.

[00:36:06] Speaker 01:
Do we have the complaint, the general counsel's complaint, in the record?

[00:36:10] Speaker 03:
I have it with me, yes.

[00:36:11] Speaker 01:
Is it in the JA?

[00:36:12] Speaker 01:
Sorry.

[00:36:13] Speaker 03:
I believe so.

[00:36:14] Speaker 01:
Can you tell me what page?

[00:36:16] Speaker 03:
I can't tell you off the top of my head.

[00:36:18] Speaker 03:
I can take a look.

[00:36:19] Speaker 01:
I'd be grateful if you would.

[00:36:20] Speaker 01:
Thank you.

[00:36:29] Speaker 03:
Judge Muller, counsel told me to look at JA-274, please.

[00:36:33] Speaker ?:
Okay.

[00:36:36] Speaker 01:
Got it.

[00:36:36] Speaker 01:
Okay.

[00:36:36] Speaker 01:
Thank you very much.

[00:36:38] Speaker 01:
Thank you, judges.

[00:36:38] Speaker 01:
Questions?

[00:36:39] Speaker 01:
Great.

[00:36:40] Speaker 01:
Thank you both.