[00:00:00] Speaker 01:
Case number 18-1219 et al.

[00:00:04] Speaker 01:
Advance your food zinc to the conditioner versus National Labor Relations Force.

[00:00:09] Speaker 00:
Mr. Lindstrom for the conditioner.

[00:00:15] Speaker 00:
Mr. Lindstrom, good morning.

[00:00:18] Speaker 00:
Good morning, yeah.

[00:00:22] Speaker 00:
Can you sort of step away from the receiver?

[00:00:29] Speaker 00:
Mr. Lindstrom, can you just say something so?

[00:00:32] Speaker 04:
Yes, Your Honor.

[00:00:33] Speaker 04:
Can you hear me now?

[00:00:35] Speaker 00:
No, it's all garbled.

[00:00:37] Speaker 00:
Are you on a speakerphone?

[00:00:40] Speaker 04:
I am not on a speakerphone, Your Honor.

[00:00:42] Speaker 00:
OK.

[00:00:42] Speaker 00:
Well, that's better.

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

[00:00:44] Speaker 00:
Would you please proceed with your opening statement then?

[00:00:48] Speaker 04:
Yes, Your Honor.

[00:00:49] Speaker 04:
Thank you.

[00:00:50] Speaker 04:
Aaron Lindstrom on behalf of Advanced Peer Foods.

[00:00:52] Speaker 04:
I've asked her as I've reserved two minutes for a bottle.

[00:00:55] Speaker 04:
There are two issues this morning, the board's imposition of a read-aloud remedy and the board's treatment of non-coercive speech as an unfair labor practice.

[00:01:06] Speaker 04:
On the first, the board imposed an extraordinary remedy without explaining why traditional remedies would be insufficient.

[00:01:14] Speaker 04:
That approach is not just an abuse of discretion, it's also arbitrary and capricious under state farm, which requires that agencies do not fail

[00:01:23] Speaker 04:
to consider an important aspect of the problem?

[00:01:27] Speaker 02:
That's an attack on the reasoning of the board, correct?

[00:01:35] Speaker 02:
Yes, it's a failure to explain.

[00:01:37] Speaker 02:
Failure to explain, but you never presented to the board the claim that the order on which you seek review was inadequately reasoned.

[00:01:53] Speaker 04:
Yes, Your Honor, there was no motion for reconsideration.

[00:01:58] Speaker 04:
But our argument here is that when an agency is acting in excess of its authority, as the US Supreme Court explained in Detroit Edison, then in that instance, 160E is no bar to this court considering it.

[00:02:14] Speaker 04:
And when an agency acts arbitrary capriciously, that is a violation of its statutory authority.

[00:02:21] Speaker 04:
It violates the APA.

[00:02:23] Speaker 04:
And therefore, it's in excess.

[00:02:27] Speaker 04:
And I think the City of Arlington case shows that there's no distinction between some jurisdictional statutory limitations and other statutory limitations that might be thought to be non-jurisdictional for agencies.

[00:02:41] Speaker 04:
All limits on statutory authority are limits that mean the agency is acting ultra viras, to use the Supreme Court's words in the City of Arlington.

[00:02:52] Speaker 04:
when it exceeds those limits.

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And I think in this case, it's also something that's important that it's not just us invoking the court's jurisdiction.

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This is also a case where the board is asking this court to enforce the order.

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And so this court needs to determine, as the US Supreme Court explained in LRB versus Cheney Lumber, needs to consider whether

[00:03:22] Speaker 04:
the order that this court would be enforcing is a lawful order or not.

[00:03:27] Speaker 04:
So, in this case, I think both the merits of the arbitrary and capricious argument about the read-aloud remedy and the jurisdictional point, they both overlap and are the same point, essentially, that when an agency fails to consider a key factor, that means it's acting arbitrarily and capriciously.

[00:03:45] Speaker 04:
And so, that means that acting outside its statutory authority, hence ultra-virus,

[00:03:52] Speaker 04:
Therefore, it's cold compute destruction and something that this court has jurisdiction to consider.

[00:03:58] Speaker 03:
Doesn't that make any kind of garden variety arbitrary and capricious argument then outside the ambit of Section 10E if we were to accept your argument?

[00:04:17] Speaker 03:
And doesn't that, in effect,

[00:04:20] Speaker 03:
really undermine Congress's intent when it drafted section 10E?

[00:04:29] Speaker 04:
I don't think it undermines Congress's intent, Your Honor.

[00:04:32] Speaker 04:
It would still preclude parties from raising arguments they had to inject to to go to lots of other issues, questions of fact, applying standards to facts, applying judicial precedents.

[00:04:45] Speaker 04:
But I think Congress would have thought

[00:04:47] Speaker 04:
that it's an extraordinary circumstance, for example, if an agency is acting outside statutory authority and... Why are those any less fundamental?

[00:05:01] Speaker 02:
I mean, on your reasoning, just as an agency lacks authority to enforce an unreasoned decision, it also lacks authority to enforce

[00:05:14] Speaker 02:
a decision that is unsupported by substantial evidence, which is all fact questions.

[00:05:24] Speaker 04:
I think, Your Honor, that the difference is there may be some questions of fact that go beyond the substantial evidence.

[00:05:32] Speaker 04:
There may be other issues where there's still a question of fact that's in dispute.

[00:05:38] Speaker 04:
I guess I have to acknowledge that this is an argument

[00:05:42] Speaker 04:
that it takes statutory limits like those found in the APA seriously, that those are limits that Congress imposed on all agencies.

[00:05:53] Speaker 04:
And when an agency, I mean, I think that's what City of Arlington says very clearly, that whenever an agency steps beyond the bounds of its authority, whether, both in how it's acting and

[00:06:09] Speaker 04:
in its authority to act, it's essentially the same question.

[00:06:14] Speaker 04:
And so in both instances, they're acting ultra viras.

[00:06:21] Speaker 04:
So for example, in the city of Arlington, they said, the Supreme Court said, both an agency's power to act and how they act is authoritatively described by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra viras.

[00:06:37] Speaker 04:
And the court also said that,

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There's no difference in as far as the ability of an agency action is concerned between an agency's exceeding the scope of its authority, its jurisdiction, and succeeding authorized application of authority that unquestionably has.

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So both the application of authority and the things you might think of as jurisdictional in both instances, it goes to the agency's power to act because they're different from courts.

[00:07:04] Speaker 04:
They don't have power under the Constitution.

[00:07:06] Speaker 04:
All of their power comes from the statutes that govern them.

[00:07:09] Speaker 02:
Suppose I disagree with you on preservation of the claim that the order was unreasoned.

[00:07:22] Speaker 02:
Is there any other argument you have with regard to the remedy?

[00:07:29] Speaker 02:
Yes, Ron.

[00:07:30] Speaker 02:
I mean, I think we frame this.

[00:07:34] Speaker 02:
There's the second strand of argument you make that

[00:07:39] Speaker 02:
the board abused its discretion.

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And I can't quite tell whether that's a freestanding argument about the evidence which might be preserved or sometimes you articulate it as just an argument for reversal without remand assuming that the explanation is no good.

[00:08:02] Speaker 04:
So I think even if you disagree with me about this preservation issue, we could still

[00:08:09] Speaker 04:
prevail on that second part that's abuse discretion on these facts where there's no high-level manager involved, there's no history, the acts are not, the violations were not egregious, and then the fact that they didn't provide any persuasive explanation for what the traditional, why traditional remedies would be insufficient.

[00:08:32] Speaker 04:
So I think I tied them together because I think the first point is important as well.

[00:08:36] Speaker 04:
There is a separate argument, abuse of discretion, just considering this as a whole on the facts of this case, that it wasn't warranted.

[00:08:46] Speaker 03:
The board says that you should be foreclosed from arguing that Ramirez was not a high-level manager because you did not make that argument anywhere in your exceptions or responses to the general counsel's exceptions below.

[00:09:07] Speaker 03:
What's your response to that?

[00:09:10] Speaker 04:
Our response to that, Your Honor, is that that's kind of going beyond what this Court has required to preserve an issue.

[00:09:18] Speaker 04:
To preserve an issue, it just has to put the Board on notice.

[00:09:23] Speaker 04:
And when we put the Board on notice that we're challenging the remedy because the factors don't total up to it, that puts them on notice that we're going to be arguing about the individual factors, I think.

[00:09:35] Speaker 04:
This Court has said,

[00:09:37] Speaker 04:
that it's 160 is not supposed to be requiring a hyperrefinement of the issues, and that when it's something that's implied, necessarily implied within the arguments that are made, then that's sufficient.

[00:09:48] Speaker 04:
I think an argument about one subfactor is necessarily implied when we're challenging the results of combining those factors as a whole.

[00:09:59] Speaker 03:
So if there's a five-factor test,

[00:10:07] Speaker 03:
And you file exceptions that say that these facts don't meet the standard of the test without articulating which, if any of the five factors aren't met, you believe that's sufficient to allow you to later challenge any of the five factors as being present if the board

[00:10:35] Speaker 03:
finds all of them to be present in their decision, and there's no motion for reconsideration that's filed.

[00:10:45] Speaker 04:
I think, Your Honor, I guess yes.

[00:10:47] Speaker 04:
I mean, it's a totality of the circumstances type analysis, and here, I mean, in one and, well, can I continue to respond, Your Honor?

[00:11:00] Speaker 04:
Go ahead, yes.

[00:11:03] Speaker 04:
Thank you.

[00:11:05] Speaker 04:
In particular here, particularly where the ALJ specifically said that she distinguished her from upper management by saying that she had to report to upper management.

[00:11:19] Speaker 04:
I think that is another reason that it's something that was fair to bring up now.

[00:11:30] Speaker 04:
I don't know if I've lost my rebuttal time or if I can turn to the 158C issue.

[00:11:37] Speaker 00:
All right, but you're over your time, so can you do it quickly?

[00:11:43] Speaker 04:
I guess for 150HC, I'd just like to point out the board has not made any statutory interpretation response to the fact that the statement itself must contain the threat, and they're pointing purely at separate content.

[00:11:58] Speaker 02:
Could we start with preservation?

[00:12:01] Speaker 02:
Where did you make that argument to the agency?

[00:12:05] Speaker 02:
That's a frontal attack on the Mohawk framework.

[00:12:11] Speaker 02:
The way you articulated the point before the agency was that the Mohawk test wasn't met because the ULPs were less pervasive and so on.

[00:12:25] Speaker 04:
So, Your Honor, at CA 571 and 572 is where we made our arguments in the answering brief

[00:12:35] Speaker 04:
where we cited the statute and said that the employer's speech was protected.

[00:12:41] Speaker 04:
So, for example, we said that all of the speech was fully permissible under the Act and solidly within Section 8C and get cell packing.

[00:12:49] Speaker 04:
We referred to the fact that the communications didn't contain a threat or a promise.

[00:12:54] Speaker 04:
We noted the employers have a right.

[00:12:56] Speaker 02:
You cited 8C for the uncontested proposition

[00:13:04] Speaker 02:
that speech is protected if it's not misleading.

[00:13:09] Speaker 02:
But you didn't really engage on this crucial point about, I'm sorry, not threatening.

[00:13:16] Speaker 02:
You didn't really engage on this crucial point about whether you assess the threatening nature of the speech within the four corners of the speech or whether you can make neutral speech threatening

[00:13:33] Speaker 02:
just by reference to other ULPs?

[00:13:37] Speaker 04:
Well, Your Honor, I think going back to what Section 160E says in our obligation, our obligation is to present an objection to the board.

[00:13:45] Speaker 04:
And it seems to me that by saying the board is violating a statute, that is presenting in a specific statute, 158C, to protect the employer's right to speech and we're

[00:14:02] Speaker 04:
That's the binding law, not the board precedent.

[00:14:06] Speaker 04:
And so we're relying on the statute that Congress wrote that grants us our rights and protects our rights.

[00:14:15] Speaker 04:
So the fact that the board put a gloss on it, I don't think that means we didn't preserve our argument that the statute is what matters and has to be filed.

[00:14:22] Speaker 04:
It's a necessary part of the analysis to look at what the statute says.

[00:14:27] Speaker 04:
And if the board precedent has departed.

[00:14:30] Speaker 04:
Thank you, Your Honor.

[00:14:33] Speaker 00:
All right, if there are no more questions, then Mr. Lindstrom will give you a couple minutes in reply.

[00:14:39] Speaker 00:
Mr. Hickson.

[00:14:43] Speaker 01:
Yes, good morning, Your Honors.

[00:14:44] Speaker 01:
May it please the Court, Michael Hickson, for the NLRB.

[00:14:46] Speaker 01:
Substantial evidence supports the sole disputed finding of a violation here, and the Board acted well within its broad remedial discretion in ordering a notice reading to remedy that violation, as well as the 16

[00:15:01] Speaker 01:
additional violations that are undisputed before the court.

[00:15:04] Speaker 01:
I guess I would turn to the Section 10E issues that have been discussed as they've been a focus of conversation thus far.

[00:15:12] Speaker 01:
In terms of the company's attack on sufficiency of the board's explanation, the company concedes that it did not raise that argument before the board.

[00:15:24] Speaker 01:
It says in its reply brief that its failure should be excused.

[00:15:28] Speaker 01:
Because it knew when it filed its opening brief that it had not raised this argument to the board, it should have made this excuse contention in its opening brief since it waited till the reply.

[00:15:40] Speaker 01:
We've not had a chance to respond, but the argument is meritless.

[00:15:44] Speaker 01:
We maintain this court in fact has consistently held many times in reviewing NLRB orders specifically that employers arguments that the board failed to adequately explain a remedy.

[00:15:57] Speaker 01:
or failed to consider a factor in ordering a remedy are jurisdictionally barred by Section 10E because the employer never raised those arguments before the board.

[00:16:07] Speaker 01:
Looking just at the cases that are included in our brief, some of them are cited for this point, some are not, but for example, the Veritas decision, the Pacific Coast Supply decision, the Fallbrook Hospital decision, the Parkwood Developmental Center decision, and the Traction Wholesale decision.

[00:16:26] Speaker 01:
are all examples of cases where this court has rejected as jurisdictionally barred arguments that the board failed to explain a remedy or failed to consider a factor in determining a remedy.

[00:16:41] Speaker 02:
That seems right to me, but what about the second strand of their argument that just focuses on, they just say, regardless of the explanation, they say,

[00:16:56] Speaker 02:
It would not be defensible to impose that remedy on this record, which is essentially the point they did make to the board.

[00:17:09] Speaker 02:
Why can't they make that argument here?

[00:17:14] Speaker 01:
Your Honor, I could see we have not, we did not contend in our brief that they are jurisdictionally barred from arguing that the record does not warrant the remedy.

[00:17:23] Speaker 01:
Honestly, I could see that argument because the board did find additional violations that the judge did not find.

[00:17:32] Speaker 01:
And the board also relied in ordering the remedy on Ms.

[00:17:35] Speaker 01:
Ramirez's high level status and her pervasive involvement in the ULPs, which the judge also did not consider in making the recommendation against the remedy.

[00:17:46] Speaker 01:
So I could see an argument that because of that,

[00:17:49] Speaker 01:
that they're also jurisdictionally barred on that strain, although we did not pursue that argument in our brief to the court.

[00:17:58] Speaker 01:
But, I mean, the boards, our position is that the board simply did not abuse what this court has recognized as its extraordinarily wide discretion in finding that the violations were sufficiently serious and widespread to mirror a notice reading.

[00:18:15] Speaker 01:
I'm sorry, did someone ask me a question?

[00:18:17] Speaker 02:
Yes, so just on the merits of that point, look, if we're just deep in the weeds of the NLRA and you get discretion as to fact-finding, you get discretion as to remedial choice, all of that's fine.

[00:18:38] Speaker 02:
You're obviously in a very strong position.

[00:18:41] Speaker 02:
But why shouldn't we think of this case

[00:18:46] Speaker 02:
think of that question as not having at least a First Amendment overlay to it.

[00:18:57] Speaker 02:
And even the NLRA cases describe it as an extraordinary remedy and not take lightly when you want to compel speech or compel

[00:19:14] Speaker 02:
association with speech rather than just informing the employees yourselves of your ruling.

[00:19:26] Speaker 01:
Your Honor, if I understand, I'm understanding your question to mean a First Amendment concern in terms of the employer, an employer representative reading the remedy.

[00:19:37] Speaker 01:
Reading the notice.

[00:19:38] Speaker 01:
Yeah.

[00:19:39] Speaker 01:
OK.

[00:19:39] Speaker 01:
Sure.

[00:19:40] Speaker 01:
So I guess a couple of responses.

[00:19:42] Speaker 01:
First, the employer, I think, has waived any such contention because they've never raised that to this court.

[00:19:49] Speaker 01:
They've said they make their HC and First Amendment argument with respect to the merits of the solicitation of revocation cards argument as to that sole individual fine of a violation.

[00:20:02] Speaker 01:
But as to the remedy, that argument is waived.

[00:20:05] Speaker 01:
The employer has never said.

[00:20:07] Speaker 01:
that First Amendment concerns should inform the court's determination of whether to enforce the Notice Remedy.

[00:20:13] Speaker 01:
But aside from that, this court has repeatedly enforced this remedy for the past 30 plus years.

[00:20:20] Speaker 02:
It recognized, for example... We have, but I didn't see in any of the cases consideration of a First Amendment issue, and I did see a lot of commentary from

[00:20:35] Speaker 02:
Judge Williams, Judge Ruth Ginsburg, and so on, making points that under current First Amendment compelled speech law would seem to support a pretty good case.

[00:20:49] Speaker 01:
Well, I guess, yeah, Your Honor, as you pointed out, there are older decisions in which some judges have raised concerns about what they see as a level of embarrassment involved on the part of the reader of the notice.

[00:21:02] Speaker 01:
And I do think that their discussion, as you say, could be read to kind of relate to or tie to some First Amendment related concepts.

[00:21:11] Speaker 01:
But the fact is not withstanding that commentary by those judges in past decisions, for 30 plus years, the court, with the knowledge of its prior precedent, has repeatedly enforced this remedy.

[00:21:25] Speaker 01:
And it has recognized that this remedy can serve to dissipate

[00:21:30] Speaker 01:
or to relieve a coercive or intimidating atmosphere created by the employer's unlawful conduct, or as the court articulated it in federated logistics, that this remedy can properly allow the employees to perceive that their employer, their managers are bound by the requirements of the Act and assure the employees of their rights under the Act.

[00:21:56] Speaker 01:
So this court has repeatedly recognized the proper remedial purpose

[00:22:01] Speaker 01:
of the notice reading requirement under Section 10C and not withstanding the prior commentary about, you know, as mentioned, has continued to uphold this remedy.

[00:22:14] Speaker 01:
And again, I would just urge that on top of all that, that the employer has never raised this to the court.

[00:22:20] Speaker 01:
Got it.

[00:22:21] Speaker 01:
I got it.

[00:22:22] Speaker 01:
Thanks.

[00:22:23] Speaker 01:
Thank you, Ron.

[00:22:25] Speaker 01:
The board did, you know, act well within its extraordinary remedial discretion in light of the company's sustained and varied campaign of unlawful conduct, establishing 17 distinct violations of Section 8A3 and Section 8A1.

[00:22:42] Speaker 03:
Can you just address the issue of Ramirez as the high-level manager in the response by your friend on the other side that they

[00:22:55] Speaker 03:
that it would be, you know, a hyper-technical requirement for them to have raised that in their exceptions below when they made clear that they did not believe that the circumstances warranted the notice reading remedy.

[00:23:18] Speaker 01:
Yes, Your Honor.

[00:23:19] Speaker 01:
Thank you for the question.

[00:23:20] Speaker 01:
I'd love to clarify that point.

[00:23:22] Speaker 01:
Their contention is meritless and the argument is jurisdictionally barred because the only thing that the company can point to is the answering briefs that it filed in response to the general counsel's exceptions to the ALJ's decision.

[00:23:39] Speaker 01:
But the ALJ's decision did not discuss Ms.

[00:23:43] Speaker 01:
Ramirez's high-level status.

[00:23:45] Speaker 01:
The ALJ did not consider or discuss anywhere in his discussion of the remedy.

[00:23:51] Speaker 01:
anything about Ms.

[00:23:53] Speaker 01:
Ramirez's high-level status or about the involvement of high-level managers in the unfair labor practices.

[00:23:59] Speaker 01:
When it filed its exceptions and it said that the circumstances did not warrant the remedy, what it was talking about, if you read its answering brief, is just the nature of the violations.

[00:24:13] Speaker 01:
And it basically was saying, we agree with the judge.

[00:24:16] Speaker 01:
Well, the judge, as I just noted, the judge did not say anything.

[00:24:20] Speaker 01:
about the involvement of high-level managers, or about Ms.

[00:24:23] Speaker 01:
Ramirez's high-level status.

[00:24:25] Speaker 03:
So it had an opportunity then to bring up the... So if the ALJ decision had said that the ALJ had concluded that Ms.

[00:24:35] Speaker 03:
Ramirez is not a high-level manager, and that was one of the reasons that it had given, and the exception said in advance piers,

[00:24:48] Speaker 03:
exceptions said the exact same thing, would the issue be preserved?

[00:24:54] Speaker 01:
Yes, if the judge said, if the judge in deciding not to recommend the remedy said Ramirez was not high level, and then Advance Pierre said in the answering brief to the GC's exceptions that we agree with the judge, Ramirez was not high level, then yes, that issue, in my view, would have been adequately preserved.

[00:25:14] Speaker 01:
I think I may be over your time, Your Honor, although I frankly lost count of which time we're on.

[00:25:20] Speaker 00:
Well, we're on the 10-minute time, but are there any more questions?

[00:25:26] Speaker 03:
No, I do not have any more.

[00:25:28] Speaker 00:
All right.

[00:25:28] Speaker 00:
Okay, then.

[00:25:31] Speaker 00:
Let's give Mr. Lindstrom two minutes in reply.

[00:25:35] Speaker 04:
Thank you, Your Honor.

[00:25:39] Speaker 04:
Focusing on the second strand that Judge Katz has asked about for our arguments,

[00:25:44] Speaker 04:
Even under that strand, the SCOMAS case, for example, says that there should be no deference to the reasoning of the board if it doesn't explain, if it fails to consider the relevant factors.

[00:25:57] Speaker 04:
And so there's less reason for deference here to their weighing of these factors when they didn't consider why traditional remedies are not, were not appropriate or not necessary.

[00:26:13] Speaker 04:
Also, in our brief, with regard to whether or not the read-aloud remedy is an extraordinary remedy, I think we tie that into First Amendment concepts because the reason it's an extraordinary remedy is because of its oppressive nature.

[00:26:30] Speaker 04:
That's why Justice Ginsburg, when she was on this court, was concerned about it.

[00:26:35] Speaker 04:
So I remember this court had said that the public confession of sins is something you'd expect in a regime by Stalin or Mao.

[00:26:44] Speaker 04:
So there's been criticism of this extraordinary remedy, particularly because of the underlying First Amendment issues it relates to.

[00:26:52] Speaker 04:
As for Ramirez, there's been no fact finding that she's a higher level manager.

[00:26:57] Speaker 04:
There's certainly no fact finding in the ALJ decision.

[00:27:00] Speaker 04:
It says on JA71, she did not wait to bring the attention of upper management, which seems to be contrasting her and ALJ's eyes with upper management.

[00:27:11] Speaker 04:
And if you look at the findings of the board,

[00:27:13] Speaker 04:
that are on footnote four and the surrounding pages of its opinion, it doesn't make any fact finding about her status.

[00:27:19] Speaker 04:
It just assumes it.

[00:27:21] Speaker 04:
So I don't see any evidence in this record that shows upper management.

[00:27:25] Speaker 04:
And so I think that's why it's another reason why it was an abuse of discretion on these facts to... Isn't that another reason why you should have filed a motion for reconsideration?

[00:27:38] Speaker 04:
Your Honor, I guess, first of all, we weren't counsel at the time.

[00:27:42] Speaker 04:
It would have been better

[00:27:43] Speaker 04:
But I think that the objections that have been raised to this extraordinary remedy are sufficient to include the components that make up and the factors that necessarily go into it.

[00:27:58] Speaker 00:
All right.

[00:27:58] Speaker 04:
Any more questions?

[00:28:01] Speaker 00:
All right.

[00:28:02] Speaker 00:
Thank you, counsel.

[00:28:03] Speaker 00:
And Madam Clerk, would you please call the next case?