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Case number 18-1299 at L. Windsor and Reading Care Center, LLC, Petitioner versus National Labor Relations Board.

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Mr. Manion for the petitioner, Mr. Hickson for the respondent.

[00:00:36] Speaker 07:
It looks like everybody's leaving.

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Let's wait over in the courtroom.

[00:00:43] Speaker 01:
All right.

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Good morning.

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Good morning.

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Thank you, your honors.

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May it please the court, Tom Manier for the petitioner Windsor Reading.

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This is a case where the National Labor Relations Board

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failed to demonstrate to clearly show error by an impartial experienced administrative law judge who specifically found that the employee here, Angelia Rowland, actually engaged in elder abuse.

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This finding was based on the testimony of three highly credible and completely neutral and unbiased witnesses not employed by Windsor Ready.

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Would you argue it would be different if the ALJ was not experienced?

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Well, the case has come about.

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That's irrelevant.

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Universal camera, I'm actually plotting for universal camera.

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I know.

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It's our notion.

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You look at the record.

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Yes.

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I've actually been before this court on three board cases, and he was the ALJ in all of them.

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So he's pretty experienced.

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He's sustained in all our cases.

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I'm sorry?

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Has he been sustained in all our cases?

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In any event, doesn't matter.

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Yes, doesn't matter.

[00:02:01] Speaker 04:
So I gather your main point here is that the board, one of your points, is that the board, whatever the merits of its reasoning may be, it was arbitrary to the extent it failed to address

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the evidence that would show that the employer acted lawfully, which one of the dissenters specifically addressed and addressed the employer's, not primary purpose rule,

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Hard and fast rules.

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And so that's the first problem, you say.

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Yes.

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Yes, I think you can't get past that problem in and of itself.

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In particular, this ALJ, in addition to finding, based on the credibility of the witnesses, that Ms.

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Rowland actually engaged in elder abuse,

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and talking about the policy, which again was undisputed.

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They took it with the utmost seriousness, as dissenting member Emanuel said.

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Rowland herself admitted that if she had committed the act which the ALJ found she had committed, it would have been grounds for discharge.

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There was no progressive discipline policy here, unlike many other employers that the board sees.

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And the ALJ made a specific finding that she would have been terminated, not merely could have been.

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And so the board did not address the underlying bases for the ALJ's finding that Windsor-Redding had met its burden under the right-line test.

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And so there were three pillars of the board's decision.

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They relied very heavily, and we argue over-reliable, on the comment attributed to Anne Gillis, the administrator.

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But let me ask you about that.

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Did you accept to that?

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Because you have the ALJ saying this was particularly telling and was enough for the prima facie showing.

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Then he goes on to

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not consider that again as part of the right line, second or third pong, whatever, about she would have been fired anyway.

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But then the board calls it an admission.

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Right.

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Thus, what did you accept to, with respect to this conversation about it's all about the union,

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What did you accept to specifically?

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We did not file exceptions.

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So we did not accept the ALJ's findings.

[00:05:06] Speaker 01:
Well, of course, you won.

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Right.

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And then I know in your motion for reconsideration, you said they gave too much weight to it, not that they misconstrued it.

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Well, which is your position in the motion for reconsideration?

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It's fundamentally that they gave too much weight to it because, and the big reason we did not file exceptions, and of course there are strategy reasons for filing and not filing, but just in terms of our position, which has been consistent, is that, again, the impartial experience ALJ, this was not some rubber stamp of what the company did.

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This was a long decision by the ALJ, very factually detailed,

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He deeply discusses the evidence, pro and con.

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Most of his findings were in our favor.

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Some, like the finding that Ms.

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Gillis made this remark, were not in our favor.

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But what he clearly did was he reviewed the witness credibility.

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He made very specific and detailed findings on this ground.

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He also actively questioned the witnesses.

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This was not some potted plant ALJ.

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He actively, we point in our briefs to who he questioned.

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He questioned all the major leases, including Ms.

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Rowland and Ms.

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Gillis.

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So we felt that in context, we did not feel that it would be prudent to accept his findings because, again, we did win and he did not

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If he had made findings like what the board found, I think that probably would have been a different decision.

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Do you have any explanation for why the dissent did not discuss this it's all about the union conversation?

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Well, I think that the dissent

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was focused on the rebuttal burden.

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The dissent noted that we had not accepted to the finding.

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So it moved on from that.

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And again, the dissent clearly didn't put the weight on the finding that the majority did.

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And as we've argued, the evidence does not support the weight that the board put on it.

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The board, it really reads like an advocacy brief.

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One of the quotes that, in preparing for this argument, that really struck us is that the board said that Gillis would not be deterred and went on to talk about the union.

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And that's just nonsense.

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I mean, that's not supported by the record.

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And I would specifically point the court.

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The nonsense is the idea that Gillis would not be deterred and that she was basically hell-bent on making sure that she made this discussion about the union.

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If you look at the testimony of both Angelia Rowland and I think it's Alice Martinez, so those were the two witnesses who the ALJ credited on this point.

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So you have to take those credibility findings.

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And it's at pages eight.

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Well, Gillis was never asked about if she made the comment.

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Oh, no.

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She denied it.

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She said Gillis.

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Well, that's right.

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She said not at that point.

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Not at that point.

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She said not at that point.

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She said she made it later.

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And interestingly, we could have accepted to this we didn't.

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But it'll just note for the record that Alice Martinez was at that later meeting.

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And she said that Gillis made the comment both times, not just at the earlier time.

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That's kind of neither here nor there, but I point it out because, and again, if you look at Appendix A7071 for Rowland,

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A, 196 to 97, and 209 to 210 for Martinez, you certainly, and again, those are the witnesses the ALJ credited.

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I defy anybody to come away from reading that credited testimony adverse to us and find that Gillis would not be deterred and that she was- Well, let me just ask you though.

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What I'm not clear about is if you didn't accept to it by the strategy reasons or whatever, but you didn't accept to it.

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So the board had no opportunity to respond, as it were.

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So in that record testimony where Mrs. Martinez says, you said this twice, all right?

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And the supervisor says, he's concerned about there being negotiations, et cetera, and he doesn't want to get into a fight about that.

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So the whole union thing is swirling around all of this.

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I don't understand why you want to place so much weight on that, because the board talk about experience, talk about Congress delegating to the board to make these sensitive judgments in this collective bargaining and union management arena.

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Normally, the court wouldn't get into that.

[00:10:15] Speaker 07:
Well, normally, they wouldn't.

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And you say it put a lot of weight on it.

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It wasn't our primary argument.

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Our primary argument was what you articulated at the beginning Judge Rogers, which is that.

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I understand.

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But I'm just saying, why would we fault the board on this second point?

[00:10:33] Speaker 07:
Well, I think that you can grant the petition for review without faulting the board.

[00:10:39] Speaker 04:
No, I understand that.

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But I'm just trying to understand.

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Let's assume that we disagreed with your first point.

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OK.

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And now we're on your second point about they put too much weight.

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Fourth point, but.

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Martinus says, you have said it twice.

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The supervisor says, all concerned about the fact we're in this labor negotiation arena.

[00:11:02] Speaker 07:
Well, now again, though, so Ken Sess, who's the supervisor of the decision maker, he's talking about that in the context of why he went to interview these witnesses after the decision was made.

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And one thing to note, too, is that it was in the termination meeting where

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Rowland first raises to the company her view that this, at that time it was suspension, but she anticipated it might become a termination.

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But it was the suspension, she said, was because of her union activity.

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So now she has planted that flag and raised that as an issue.

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And Ken Sess has been around enough to know.

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She's high up in the union food chain.

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this easily could be, and in fact was, made into a case before the board.

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And so he, at that point, even though he had three days earlier, concurred in the termination decision, with no discussion about the union, by the way, there's no evidence that the union was discussed in that decision-making conference call, late Friday afternoon, May 25th, 2012.

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Ken Sess makes a decision that, you know, I just need to make certain myself.

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I mean, he trusted Ann Gillis, but he doesn't know these three people.

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They are not Windsor Reading employees.

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He's never met them before.

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He's only able to talk to two of them, but he wants to make sure that he is as credible as Ann Gillis said they were.

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He was satisfied that they were.

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That is the biggest consistency in this case, are those three witnesses.

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They were unwavering and unimpeached.

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And so again, this is classic right line, where you have the nexus that is found, but the overwhelming evidence proved that not only would the employer have made the same decision in the absence of union activity, but the ALJ went further and found that the weight of the evidence showed that the act of abuse wasn't just alleged, it actually occurred.

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He was that convinced by these witnesses.

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And so you really have...

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You know, the board in its appellate briefs says that we have a heightened burden of rebuttal.

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That's not what it says in the decision.

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So it just says it's a strong case.

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It doesn't ascribe to us a heightened burden.

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But I would submit that we met that heightened burden in spades in this case because of the testimony of those three witnesses.

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I just don't see how you get past that.

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And the board really dodges the issue.

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They drop a footnote and said, well, we don't decide.

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Why not?

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They don't explain why they don't.

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They only say they don't have to.

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Well, with dissent notes, you don't have to.

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That's not part of our burden.

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But it's still a, isn't it obvious that if you've actually proven that the offense actually occurred to the satisfaction of the ALJ, that that's a stronger case than the usual rebuttal case?

[00:14:13] Speaker 04:
Well, but I thought on the right line, all at issue was, did the employer have reasonable grounds to believe?

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Not whether it actually happened.

[00:14:22] Speaker 07:
Right, but what I'm saying is that the reasonable grounds is a lower burden, and we went well above and beyond that.

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And if you're going to say, even if you think, even if you agree with the board's brief, not its decision, that you have a heightened burden, well, heightened evidence would logically meet a heightened burden, it would seem to me.

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And then the other.

[00:14:44] Speaker 01:
Let me just ask, what I don't understand is why you haven't emphasized the environment that this took place in.

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Because when I read the conversation of Rowland, Martinez, and Gills, and Rowland says, why did these people say this?

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Why did these three people say this?

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Why, why, why, why, why?

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And Gills says, you have to understand

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that when the public hears about nursing homes, when it hears about retirement centers, it automatically thinks there's something wrong.

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And she says these three outsiders heard what they thought was Roland saying a threat of physical abuse against a resident in a wheelchair.

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And they're in a public place.

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They're in a doctor's office, as I understand it.

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coming into the doctor's office.

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I mean, they're not in the nursing home.

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And then she says that is why we have to take anything like this so seriously, not just because substantively we can't have people abusing our residents, but that the outside world is prone to thinking that's what we're doing.

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And then that leads her into, and every time the public sees something about patient care, for instance, signs on cars that don't say unfair collective bargaining agreement, but instead says substandard patient care, whatever the sign said, that's what led her into saying, just like we can't have any allegation like this made

[00:16:38] Speaker 01:
in public with outsiders, without acting as strongly as we can, when you all put these signs, she should have never done it, when you all put these signs on the cars, that does the same thing.

[00:16:53] Speaker 01:
And that's when Martina says, this isn't about the union, this is about your job.

[00:17:00] Speaker 01:
And she said, it is about, I mean, Gil says, it is about the union.

[00:17:03] Speaker 01:
That part is, the signs on the cars.

[00:17:06] Speaker 07:
Right.

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It's unclear from the testimony as to what was all about the union.

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The inference was that the termination was, but they were really talking about the signs on the cars, and I might add that

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Because I reread the testimony in preparation for this argument.

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And Your Honor, I made the exact same critique of our brief as you just raised.

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Why didn't we do it?

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I mean, it's in there, but it's not you laid it out better than I did.

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I'll give you credit for that for sure.

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But it is in there.

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And again, the testimony that I cited to you, especially appendix page A70, that is Rowland's testimony, and it completely

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corroborates what you just described.

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That's the testimony of both

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Rowland and Gillis about this conversation.

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And I think even the ALJ didn't fully grasp, but I think that might be one reason why I didn't go into it as much.

[00:18:03] Speaker 01:
Well, you said Gillis.

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Gillis denied it happened.

[00:18:06] Speaker 01:
You mean Martinez.

[00:18:08] Speaker 07:
Gillis denied saying it was all about the union.

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That's really the discrepancy, is whether she made that comment.

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And she said she didn't.

[00:18:18] Speaker 01:
And she also... I thought she said I didn't talk about the signs until, not at that point.

[00:18:24] Speaker 07:
She did, but there was also, but they were talking, but I think what she acknowledged was that she was talking about the public perception of nursing homes.

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Not so much about the signs.

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It was Rowland's credited testimony where the signs came into that context.

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And you're right, that is the context in which it was made.

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And by the way, this isn't something that was briefed.

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But it's not at all clear that a sign accusing Winsor-Retting of bad patient care would actually be protected activity.

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Obviously, signs saying that they needed a union contract, that's quintessential protected activity.

[00:19:04] Speaker 06:
The sign said both, so it's... The thing that's perplexing, I guess, is why even go off on this tangent?

[00:19:13] Speaker 06:
Because under right line, the employer can win even if the employer is guilty of being anonymous.

[00:19:21] Speaker 06:
Well, I mean, that's the whole point of right line, whether you would have discharged in any event.

[00:19:26] Speaker 06:
Why wouldn't you just focus on the fact we showed that she did what she was accused of.

[00:19:32] Speaker 06:
The ALJ agreed.

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That's not discredited.

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There's no progressive discipline.

[00:19:37] Speaker 06:
And the woman herself agrees she should have been fired if she was guilty.

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That's the end of the discussion on the right line, if you're right.

[00:19:43] Speaker 07:
Right.

[00:19:44] Speaker 07:
Well, and again.

[00:19:45] Speaker 06:
I'm not understanding why we're off in this tangent.

[00:19:49] Speaker 06:
It doesn't matter.

[00:19:50] Speaker 06:
It's like an employee goes up and punches the daylights out of the supervisor.

[00:19:58] Speaker 06:
And there's no question about it.

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Everybody witnesses it.

[00:20:00] Speaker 06:
And everyone knows the supervisor hates you news.

[00:20:04] Speaker 06:
Is the employer going to lose?

[00:20:06] Speaker 06:
Of course not.

[00:20:07] Speaker 07:
Of course not.

[00:20:07] Speaker 07:
And we, yes, I think, so first of all,

[00:20:13] Speaker 07:
I think it was our last argument in the brief, so it wasn't our primary.

[00:20:17] Speaker 07:
We had three other arguments in the brief.

[00:20:21] Speaker 07:
Okay, okay, good.

[00:20:22] Speaker 07:
Because the other things were that the board tried to make a disparate treatment argument.

[00:20:31] Speaker 07:
Another thing that I wish I had articulated better in the brief, but it's in the record and portions of the record that we cite in the brief,

[00:20:39] Speaker 07:
The board accused Windsor-Redding of not discussing really the differences between Nancy Antonson and Angela Rowland.

[00:20:53] Speaker 07:
And if you look specifically at the appendix page A461,

[00:21:01] Speaker 07:
that maybe you need to read.

[00:21:02] Speaker 07:
We recited A458 to 462, so maybe you want to read the whole thing in context.

[00:21:07] Speaker 07:
So that is where Ms.

[00:21:09] Speaker 07:
Gillis is testifying about Ms.

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Antonson.

[00:21:14] Speaker 07:
And that's the only testimony in the record, by the way, about Antonson.

[00:21:17] Speaker 07:
Everything else is just cold hard paper.

[00:21:20] Speaker 07:
And you have... Well, one difference there was... I'm sorry?

[00:21:24] Speaker 01:
One difference there, they never... I thought they decided she'd never done what

[00:21:32] Speaker 01:
What?

[00:21:33] Speaker 01:
She's the one who abused, verbally abused a patient.

[00:21:41] Speaker 01:
Role?

[00:21:41] Speaker 01:
Right.

[00:21:41] Speaker 01:
No.

[00:21:42] Speaker 07:
Oh.

[00:21:42] Speaker 01:
Antonson?

[00:21:43] Speaker 07:
Antonson.

[00:21:43] Speaker 07:
Oh, she did.

[00:21:44] Speaker 07:
There was verbal, I'm not even sure it was characterized as abuse so much as it was certainly unprofessionalism.

[00:21:51] Speaker 01:
OK.

[00:21:52] Speaker 01:
But the difference was they never found she had actually, Antonson had ever done what was alleged.

[00:21:59] Speaker 07:
They had not found that she had abused the patient.

[00:22:02] Speaker 07:
So what they actually did, so the patient and Antonson's versions of the event were actually not

[00:22:11] Speaker 07:
contradictory.

[00:22:13] Speaker 07:
So the resident from her standpoint, she's complaining, it's basically, I would describe it as unprofessionalism and perhaps negligence because this is someone who is very sensitive to the touch and Antonson is touching her as gently as she feels she can

[00:22:33] Speaker 07:
nevertheless is causing, apparently, extreme pain to the resident who complains about it and also complains that she made some very unprofessional comments.

[00:22:46] Speaker 07:
What the write-up that the record suggests shows is that she was given a written warning.

[00:22:53] Speaker 07:
Really, it was for the unprofessionalism.

[00:22:55] Speaker 07:
You're not supposed to roll your eyes, and you're not supposed to get all upset.

[00:23:00] Speaker 07:
And Gillis goes into how this employee, who later, by the way, was terminated according to the record.

[00:23:07] Speaker 03:
What about Mr. Rich?

[00:23:09] Speaker 07:
Well, Mr. Rich, that disproves disparate treatment.

[00:23:12] Speaker 07:
And I honestly am at a loss.

[00:23:15] Speaker 07:
to how the board completely fails to discuss this.

[00:23:19] Speaker 07:
The ALJ sure did.

[00:23:21] Speaker 07:
And to me, that's a shining example of how there is no disparate treatment.

[00:23:26] Speaker 07:
You have basically an anonymous whistleblower in that case who, all respect to whistleblowers, but they never knew this person's identity.

[00:23:37] Speaker 07:
Because this whistleblower, he or she only spoke to the state.

[00:23:42] Speaker 07:
So the rich situation didn't even proceed to the same channels as Rowan.

[00:23:47] Speaker 07:
Rowan, the complaint was made by the doctor's employees to Windsor-Reddick.

[00:23:54] Speaker 07:
Windsor-Redding's management then made the report to the state as a mandatory reporter.

[00:24:00] Speaker 07:
In the Rich case, an anonymous whistleblower made a report directly to the state.

[00:24:05] Speaker 07:
That is how Windsor-Redding found out about it.

[00:24:07] Speaker 07:
And they never know, and to this day do not know, who said that.

[00:24:11] Speaker 02:
Well, whatever did they make?

[00:24:13] Speaker 02:
I mean, we don't need to get into that, but it just wasn't addressed.

[00:24:16] Speaker ?:
Yeah.

[00:24:18] Speaker 07:
And then the other thing that we highlighted is the post-discharge investigation that they said cast out.

[00:24:27] Speaker 07:
And as a legal writer, if the big case that you're relying on, you only refer to with a CF site, that's a sign of weakness in your argument.

[00:24:39] Speaker 03:
Not necessarily.

[00:24:41] Speaker 03:
It's a sign that this hasn't come up before in this particular way.

[00:24:43] Speaker 07:
But it's their only argument.

[00:24:46] Speaker 07:
And they're relying, they're putting all their eggs in the Lowry trucking basket.

[00:24:50] Speaker 07:
And Lowry trucking was such a different case from this one.

[00:24:54] Speaker 07:
And the board just is resistant to acknowledging this.

[00:24:57] Speaker 07:
The dissent explained it.

[00:25:00] Speaker 07:
And it's also a point that neither the general counsel nor the union raised.

[00:25:04] Speaker 07:
And the board is technically free to raise these.

[00:25:06] Speaker 07:
But again, we're talking about, well,

[00:25:08] Speaker 07:
in a situation where they came up with it on their own, and it's so unpersuasive at best.

[00:25:16] Speaker 07:
And then they tried to ascribe doubt to Ann Gillis, not just before she interviews the witnesses, but even after the decision has been made.

[00:25:24] Speaker 04:
Yeah, but remember, there's a lot of evidence that you haven't even talked about here.

[00:25:28] Speaker 04:
Right.

[00:25:28] Speaker 04:
You know, about a patient and her ability to mimic.

[00:25:32] Speaker 04:
And according to Johnson, she was the one who was doing all the screaming, not

[00:25:38] Speaker 04:
Roan didn't say anything.

[00:25:39] Speaker 04:
The three witnesses didn't see who was making the statement.

[00:25:46] Speaker 04:
They just heard.

[00:25:48] Speaker 04:
So they didn't know who it was either.

[00:25:50] Speaker 04:
But, you know, that's not the way the board went.

[00:25:53] Speaker 04:
And it could bulk up its decision in those ways.

[00:26:00] Speaker 04:
But I think the first point you made is the key one here.

[00:26:04] Speaker 07:
So I realize that I'm well over my time.

[00:26:07] Speaker 07:
I would like to have some rebuttal time.

[00:26:10] Speaker 07:
Thank you so much, Your Honors.

[00:26:12] Speaker 01:
All right.

[00:26:13] Speaker 01:
Mr. Hickson.

[00:26:19] Speaker 05:
Good morning.

[00:26:19] Speaker 05:
May it please the court, Michael Hickson for the NLRB.

[00:26:23] Speaker 05:
The board reasonably found that the company unlawfully suspended and discharged its longtime employee, Angela Rowland, because of her extensive union activity.

[00:26:32] Speaker 05:
In making that finding, the board carefully applied the right-line analytical framework to the particular record and the unusual facts before it.

[00:26:41] Speaker 04:
You know this court has repeatedly said that where there's a dissenting opinion, and it makes a point that's not frivolous, that the majority has to address it.

[00:26:52] Speaker 04:
And Mr. Member Emanuel made an argument here, and the board just didn't address it.

[00:26:58] Speaker 05:
Your Honor, I feel that the board did address the arguments made by the dissenting member in its opinion by disagreeing with them.

[00:27:06] Speaker 05:
And the board majority is of course... And it didn't deal with the evidence that we were lying on.

[00:27:12] Speaker 05:
I can maybe answer your question better if I better understood the specific point at issue.

[00:27:16] Speaker 05:
Do you mean with respect to the finding that the abuse occurred?

[00:27:20] Speaker 05:
In terms of the finding that the abuse occurred?

[00:27:23] Speaker 04:
Or the evidence that supported a finding that the employer acted lawfully?

[00:27:30] Speaker 04:
Didn't the board have to engage in that, particularly given the dissent?

[00:27:35] Speaker 05:
Yes, Your Honor, and I think that the board did.

[00:27:38] Speaker 05:
I think that the...

[00:27:40] Speaker 05:
In explaining the basis for its decision, Your Honor, primarily it seems that the point that's being the most discussed is the finding about that the abusive conduct was found to have occurred by the judge.

[00:27:54] Speaker 05:
But under this court's precedent, for example, the Fort Dearborn case, it's well established that right line is not about what actually happened.

[00:28:03] Speaker 05:
It's about an employer's adverse actions, what motivated those actions.

[00:28:10] Speaker 05:
It's about employer motive and the court was clear in Fort Dearborn and in the Nova Health and other cases that assessing an employer's affirmative defense on the right line does not concern what the employee actually did, whether the employee actually engaged in the misconduct.

[00:28:26] Speaker 05:
It assesses the employer's proof, its burden to prove

[00:28:30] Speaker 05:
what it actually and reasonably believed, whether it acted on those beliefs, and whether it demonstrated through record evidence that it would have taken the same actions even in the absence of the union activity.

[00:28:44] Speaker 05:
The fact that these three staff persons for the doctor's office who are not company agents, who do not work for the company, who are no part of the decision-making process in the adverse actions, the fact that those people

[00:28:58] Speaker 05:
actually genuinely believed that the misconduct occurred, not only does it not establish the employer's burden, it does not establish that the employer actually believed, and as the board found,

[00:29:12] Speaker 05:
its actions and the testimony of its managers demonstrate that it did not believe that the misconduct had occurred, rather that it continued to harbor significant doubt that... Because of this post-discharge investigation?

[00:29:28] Speaker 05:
Because of the post-discharge investigation primarily and as further illuminated by its manager's testimony, the testimony of, I guess I've learned now it's Miss Gillis, I've been mispronouncing it in my head, Miss Gillis and Mr. Sess, showing a consistent thread, particularly with Miss Gillis because she was more involved in the earlier stages, a consistent thread through her testimony that from the time the accusation was reported to her through the

[00:29:57] Speaker 05:
26, 28, 30 hours or so that led to the investigation and then the discharge decision, and then through the carrying out of the discharge decision on the next business day after the long weekend, that Ms.

[00:30:08] Speaker 05:
Gillis was skeptical.

[00:30:12] Speaker 06:
And as you said, the record well demonstrates... The record indicates that this was a valued employee.

[00:30:20] Speaker 06:
mostly liked, had done a good job, and allegedly had committed something that everyone agreed, including that employee, you will lose the job if you're guilty.

[00:30:31] Speaker 06:
And so management acted very responsibly in saying, we really need to check this out every which way.

[00:30:38] Speaker 06:
We don't want to do this whimsically.

[00:30:40] Speaker 06:
It seems to me that it proves just the opposite of what you're saying.

[00:30:44] Speaker 06:
They're being totally responsible.

[00:30:46] Speaker 06:
He said, we've got to check this out.

[00:30:47] Speaker 06:
This is a really good employee.

[00:30:48] Speaker 06:
He's been here a long time.

[00:30:50] Speaker 06:
But we all agree, because of what's at stake, if she did it, she's gone.

[00:30:56] Speaker 06:
And the employee agreed, if I did it, I'm gone.

[00:30:59] Speaker 05:
Your honor, I'd like to try to make a couple points in responding, if I may.

[00:31:04] Speaker 05:
First, the employee's testimony, a non-attorney employee's subjective opinion that if she had engaged in the conduct, it would have been appropriate, which is the question she was asked, would it have been appropriate for you to have been terminated.

[00:31:18] Speaker 05:
That is not evidence that the employer

[00:31:20] Speaker 05:
would have terminated her.

[00:31:22] Speaker 05:
It's the employer's burden.

[00:31:24] Speaker 05:
It's not, you know, the employee's subjective opinion that it would have been appropriate is not evidence establishing that the employer would have taken that action even in the absence of her union activity and not withstanding the remarkably strong evidence demonstrating the unlawful motive in its adverse actions.

[00:31:41] Speaker 05:
And I guess if I could further respond, Your Honor.

[00:31:44] Speaker 05:
I guess the point that you're making or the interpretation that you're offering about the employer's investigation, I could see that argument holding much more weight if it was not a continued post-discharge investigation.

[00:31:59] Speaker 05:
Why?

[00:32:00] Speaker 06:
Because, Your Honor... Why?

[00:32:03] Speaker 06:
Believe it or not, there are some employers who really feel responsible if they take what they're doing seriously.

[00:32:10] Speaker 06:
And they want to pursue it.

[00:32:11] Speaker 06:
They can still have more than enough case at the moment the discharges announced, and they go on to say, let's look at this further.

[00:32:19] Speaker 06:
Why is that damned them to say, let's look at it further?

[00:32:22] Speaker 06:
Just let's check everything again.

[00:32:24] Speaker 06:
Why is that bad?

[00:32:26] Speaker 06:
I wish we did that in society more often.

[00:32:31] Speaker 05:
Well, Your Honor, it's not a question of good or bad.

[00:32:33] Speaker 05:
It's a question of what it does.

[00:32:34] Speaker 06:
It doesn't damn you, because you say, I want to make double issue.

[00:32:37] Speaker 06:
I want to check it three, four times, every which way I can, to make sure what we did was right.

[00:32:42] Speaker 06:
I understand.

[00:32:43] Speaker 05:
A couple of points first, Your Honor.

[00:32:44] Speaker 06:
That seemed to me the silliest part of the board's discussion, that the employer gets damned because the employer double, triple checked after the fact.

[00:32:52] Speaker 06:
The question is whether or not the employer, at the moment of discharge, did something the employer otherwise would have done.

[00:32:59] Speaker 05:
That's right, Your Honor, and the board reasonably found that the totality of the evidence, including the admitted post-discharge investigatory actions and the testimony of Sess and Gillis about those actions showed a wouldn't have.

[00:33:13] Speaker 05:
I mean, it showed that on this record, the evidence substantially supports the point.

[00:33:18] Speaker 06:
There's nothing in the post-discharge action on body and court suggesting that

[00:33:25] Speaker 06:
If we confirm that she's guilty, we may or may not discharge her.

[00:33:30] Speaker 06:
They weren't hesitant on that.

[00:33:32] Speaker 06:
If they confirmed again and again and again that she was guilty of what she was accused of, the employer didn't doubt for a minute she was done.

[00:33:40] Speaker 06:
That was the whole point.

[00:33:44] Speaker 06:
That's why they went out of their way to try and confirm, to make sure again.

[00:33:48] Speaker 06:
But that doesn't mean they were wrong when they did it at the moment of the original discharge.

[00:33:53] Speaker 05:
Well, but Your Honor, it's a question not of whether they were right or wrong of what actually happened, but of what it reveals about the employer's belief.

[00:34:00] Speaker 05:
And the board reasonably found, I understand the alternative interpretation Your Honor is offering, but respectfully, the fact that there's an alternative interpretation is not a reason for the court to displace the board's reasonable interpretation.

[00:34:11] Speaker 06:
If I don't think the board's reasoning can stand up to scrutiny that we require, reason decision-making is what we look for.

[00:34:18] Speaker 06:
This doesn't look like reason decision-making to me.

[00:34:21] Speaker 05:
Your Honor, I guess maybe if I highlight some of the testimony that I feel demonstrates that the significant doubt continued beyond the collection of the statements from the doctor's office witnesses.

[00:34:34] Speaker 05:
For example, at appendix page 430, Ms.

[00:34:37] Speaker 05:
Gayless testified that on May 29th when the employers were discussing Ms.

[00:34:41] Speaker 05:
Rowland's circumstances and what to do, she testified that they discussed how can we in any way get around this.

[00:34:47] Speaker 05:
That evidence is doubt.

[00:34:48] Speaker 05:
On May 29th, at appendix page 439, Ms.

[00:34:51] Speaker 05:
Gillis admitted that after having already discharged Ms.

[00:34:54] Speaker 05:
Rowland, she asked Ms.

[00:34:55] Speaker 05:
Rowland, where was the van driver?

[00:34:58] Speaker 05:
According to Ms.

[00:34:58] Speaker 05:
Gillis, just to be clear in my mind, she's seeking additional clarity about the events of May 24th because she continues to doubt that Ms.

[00:35:07] Speaker 05:
Rowland did this.

[00:35:08] Speaker 06:
No, because she wants to give her the benefit of the doubt.

[00:35:11] Speaker 06:
I just don't understand how that can be.

[00:35:13] Speaker 01:
And there's evidence that the

[00:35:15] Speaker 01:
resident who was supposedly verbally abused, her daughter, her husband, both said, we don't believe this happened.

[00:35:25] Speaker 01:
I mean, when you've got a patient whose own family says, we think so much of Ms.

[00:35:32] Speaker 01:
Rowland, we don't think this happened, of course you're going to say, I've got to talk to everybody I can think of.

[00:35:39] Speaker 01:
Because even, I think, Gills, I don't know if this is in her testimony,

[00:35:44] Speaker 01:
But the impression you get reading it is everybody was astounded that this happened.

[00:35:53] Speaker 01:
And the resident herself mimics people, has different voices.

[00:35:59] Speaker 01:
And the three witnesses, the only was we heard two distinct voices rather than one voice.

[00:36:07] Speaker 01:
I mean, one sentence in one voice and one sentence in another voice.

[00:36:13] Speaker 01:
I think it shows there.

[00:36:15] Speaker 01:
their good faith in trying to make sure that when they fired Ms.

[00:36:20] Speaker 01:
Rowland, they were not acting unfairly to her.

[00:36:25] Speaker 01:
But their hands were tied.

[00:36:27] Speaker 05:
This shows that there was a reasonable basis for the employer to have believed that Ms.

[00:36:33] Speaker 05:
Rowland did it at the time they carried out the discharge.

[00:36:36] Speaker 05:
There was also a reasonable basis, some of the evidence that Your Honor and

[00:36:40] Speaker 05:
Your honors on the panel have made reference to, there was also a reasonable basis for the employer to have been quite skeptical and doubtful that Ms.

[00:36:49] Speaker 05:
Rowland did it.

[00:36:50] Speaker 05:
And what does the evidence show about which path the employer, this employer, on this record actually took?

[00:36:56] Speaker 05:
The board reasonably found that the path they took was that they doubted.

[00:36:59] Speaker 05:
They continued to doubt.

[00:37:01] Speaker 05:
And I guess I'd like to add, too, that Ms.

[00:37:02] Speaker 05:
Rowland is on suspension.

[00:37:04] Speaker 05:
She's suspended.

[00:37:05] Speaker 05:
She's at home.

[00:37:06] Speaker 05:
She's not interacting with residents.

[00:37:09] Speaker 05:
She's not coming to the facility.

[00:37:11] Speaker 05:
So what is the employer's rush?

[00:37:12] Speaker 05:
What is the explanation for the employer's rush to carry out this discharge when she is not there, when they continue to harbor doubt that she did it, and they harbor so much doubt

[00:37:25] Speaker 05:
that they determined we need to keep investigating whether she did it even though we've already fired her.

[00:37:30] Speaker 01:
I'll tell you one reason for the rush that is not in the record and that is this happened in public and those three ladies we don't know that there weren't patients in the room we don't know that those three women didn't say you won't believe what happened in our office this morning and the whole point of Gill is saying everything we do in a nursing home

[00:37:53] Speaker 01:
Once the public hears about it, we always get the bad interpretation, or they always believe we're here abusing these vulnerable people.

[00:38:07] Speaker 01:
That's one reason to continue to try to tie it down, even if she was at home not anywhere near the nursing home.

[00:38:19] Speaker 05:
Well, I guess, Your Honor, first I just

[00:38:21] Speaker 05:
point out, of course, that the employer hasn't made that kind of argument.

[00:38:24] Speaker 05:
But additionally, I can see that as a reason to further investigate, to tie it down, but not as a reason to pull the trigger on discharging this 11 and a half year employee, who is undisputed before this event, had always had a beyond exemplary record, had never once been accused of any inappropriate conduct toward a resident.

[00:38:42] Speaker 05:
Why pull the trigger before you complete that investigation?

[00:38:47] Speaker 05:
Some of the additional evidence, for example, on appendix pages 436, 439, 442 to 445, Ms.

[00:38:56] Speaker 05:
Giles testified that she reached out to Mr. Johnson, that's the van driver, that she reached out to the van driver's dispatcher on May 30th after the discharge to make sure that I understood or to make sure that I'm clear in my mind about the events of May 24th.

[00:39:12] Speaker 05:
And specifically, she sought to probe whether

[00:39:15] Speaker 05:
any threat that Mr. Johnson may have heard may have been made by the resident rather than Ms.

[00:39:22] Speaker 05:
Rowland.

[00:39:24] Speaker 05:
Additionally, at appendix page 447, Ms.

[00:39:27] Speaker 05:
Giles testified describing her general post-discharge distress about the whole situation, that she was very distressed to have discharged Ms.

[00:39:36] Speaker 05:
Rowland, and she specifically highlighted in explaining that distress, her own ultimate failure

[00:39:44] Speaker 05:
to dissuade the doctor's office staff persons from claiming that that voice that they heard make that threat was Ms.

[00:39:53] Speaker 05:
Rowland as opposed to resident B. A failure to dissuade conveys clearly a feeling that it was not Ms.

[00:40:05] Speaker 05:
Rowland.

[00:40:05] Speaker 05:
She was trying to dissuade them because she did not believe that it was Ms.

[00:40:09] Speaker 05:
Rowland.

[00:40:09] Speaker 05:
And she articulates that in her own words in describing why she

[00:40:14] Speaker 05:
continued to be very distressed about the discharge after having already carried out the discharge.

[00:40:21] Speaker 05:
I mean, it's undisputed the judge even found, this is at appendix page 1178, it's undisputed that the reason for the post-discharge investigation, in the words of the judge, for example, was to continue the investigation of whether she had actually threatened and yelled at resident B. I mean, that's why they're doing this.

[00:40:41] Speaker 05:
They're continuing to examine and to scrutinize whether she did it.

[00:40:46] Speaker 05:
Mr. Sess testified at appendix page 608 to 610 that his role in this post-discharge investigation was to check or establish the, quote, veracity of the claims made by the doctor's office staff persons and to, quote, find out if they were credible.

[00:41:03] Speaker 05:
I don't have much time on my clock.

[00:41:05] Speaker 05:
I wondered if I could quickly talk about disparate treatment.

[00:41:09] Speaker 05:
If I may?

[00:41:10] Speaker 05:
If I could talk about disparate treatment briefly?

[00:41:12] Speaker 05:
Just briefly, yeah.

[00:41:13] Speaker 05:
Okay, well I guess that just briefly, I think I heard some discussion regarding primarily Nancy Antonson.

[00:41:19] Speaker 05:
I mean, the board, we respectfully submit to the court that the board's finding of disparate treatment is supported by the record and further

[00:41:27] Speaker 05:
supports its finding that the company failed in its burden.

[00:41:30] Speaker 05:
But regarding Ms.

[00:41:31] Speaker 05:
Antonson specifically, I believe there was discussion about whether that the employer did not believe that she had done the misconduct or at least the physical misconduct.

[00:41:41] Speaker 05:
And I would submit to you that that notion is not supported by the record.

[00:41:47] Speaker 05:
The company, the documentary evidence sets forth Ms.

[00:41:51] Speaker 05:
Antonson's conduct

[00:41:53] Speaker 05:
her explanations for that conduct and then what the employer did.

[00:41:56] Speaker 05:
So the company heard all of Ms.

[00:41:59] Speaker 05:
Antonson's innocent protestations or attempts to explain what happened and yet the company both disciplined her for the conduct based on the report of the resident and furthermore reported her conduct

[00:42:14] Speaker 05:
to the state of California, again, based on the account of the resident and in both the discipline and in the report to the state of suspected abuse, that the company suspected abuse, the company listed not only the eye roll and the verbal statement, but also listed in both of those documents that Ms.

[00:42:33] Speaker 05:
Antonson handled the resident in a rough manner and that she, despite the resident's request that she be more gentle, that she continued to handle her in a rough manner.

[00:42:42] Speaker 05:
If there are any more questions, I'm more than happy to answer any of them.

[00:42:45] Speaker 05:
Otherwise, I respectfully request the court enforce the board's order in full.

[00:42:49] Speaker 01:
All right.

[00:42:50] Speaker 01:
Thank you.

[00:42:54] Speaker 01:
Do you have any questions?

[00:42:56] Speaker 01:
No.

[00:42:56] Speaker 01:
I think we have your argument.

[00:42:59] Speaker 07:
Oh, you don't want to ask me?

[00:43:00] Speaker 07:
Yeah.

[00:43:01] Speaker 07:
OK.

[00:43:02] Speaker 07:
I'll defer.

[00:43:02] Speaker 01:
Thank you so much, Your Honors.

[00:43:05] Speaker ?:
OK.