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Case number 19-1150 et al.

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Cadillac of Naperville, Inc.

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Petitioner versus National Labor Relations Board.

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Mr. McHarg for the petitioner, Mr. Cantor for the respondent.

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You can start, Mr. McHarg.

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We hope you're feeling better.

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Thank you very much, Your Honor, and may it please this honorable court.

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My name is Michael Patrick McHarg, Sr.

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I'll be speaking briefly on behalf of Appellant Cadillac of Naperville.

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Briefly outline the major points I'd like to cover today.

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The two issues regarding errors in the handling of evidence, the case reversal reverting the 8A3 discharge, John Bezbikus, and if time permits, a couple of the 8A1 issues where the facts and law don't mesh.

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At the outset, I would like to begin your honors by stating that this case is a ample demonstration of the rapidly deteriorating conditions in a workplace after a work stoppage that lasts two months, even between employers and employees that have had 25 years of a positive workplace relationship and the importance of the labor laws that govern that relationship

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Now, turning your attention to my first issue, there was an issue at the trial with respect to respondents council that was me at the time, being permitted to keep the affidavits of the testifying witnesses until the conclusion of the hearing for the purposes of cross examination.

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him board precedent that was precisely on point, and he denied it nonetheless.

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Simply stated, there is board law on this point, the Walmart case, and it states explicitly that if counsel desires, they may retain the affidavits through the hearing for trial purposes.

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This- Mr. McCarg, we have recent circuit precedent in the Napleton case that says

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the argument you're making to have a valid claim, you have to have demonstrated prejudice.

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Can you point us in your briefing to us where you argued prejudice?

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Well, I think the prejudice arguments, if I may, Your Honor, the Napleton case also said that wasn't reaching the merits of the argument and that the prejudice was probably made in the arguments

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made to the board.

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Nonetheless, the I think we're going to ask the full panel to review that and the time on that hasn't run.

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Nonetheless, I think we you know, it's possible that an error was made the the affidavit the board uses the prejudice standard as a smoke screen.

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And the cases they cite there in our I just I would just like to back up.

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We're not talking about

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The board here, our court precedent requires you to have demonstrated prejudice.

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And I didn't see prejudice argued in your brief.

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Did you just say you're asking the full board to review that issue right now?

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That will be open on the Napleton case, Your Honor.

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The petition for rehearing and reconsideration on that.

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The full court or the full board?

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I'm sorry.

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Full court.

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I'm sorry.

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OK.

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But as for now, as for now, that's

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That's our precedent.

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So I take it by your answer that you agree that you haven't argued prejudice in your brief to us, and you're simply raising that legal question.

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You're planning to raise further review of that legal question.

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Is that right?

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There is no argument on I don't believe so, Your Honor.

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I thought I said that.

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I'm sorry.

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No, that's OK.

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But again, the prejudicial argument, if the court will indulge me and take a look at this, is a bit of a smoke stream.

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This is the classic rules standard debate, a rule defining a triggering condition and a consequence, a standard allowing for consideration and options.

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The board continues to say, well, you have to show prejudice.

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But the fact of the matter is that the board was unequivocal in their ruling that the trial counsel was entitled to keep it until the end of hearing.

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The types of cases where prejudice need be shown were on the admission of hearsay testimony or the admission of cumulative witnesses, not something where a specific rule was violated and a penalty could be demonstrated.

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Walmart and the board tries to point to the case handling manual.

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The case handling manual itself states the manual is not binding authority and does not constitute a ruling of the board.

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Accordingly, that can be no more than instructive.

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A simple application of the rule here makes infinitely more sense, and it's consistent with board's law, not interpretations of manuals and the like.

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Moving on from that, Your Honor, I would like to move to the issue of the admissibility of tape recordings.

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We admit at the outset, Your Honor, that this is against the extant law, that the NLRB does permit feloniously recorded tapes into evidence.

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Is it a felony?

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Is that the level of offense under state law?

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I believe it is in Illinois.

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I know it is in Florida, Your Honor.

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I know that it's a very much a minority rule.

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I believe there are only six states that have such a rule, but I believe that it is under Illinois law, yes.

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And we're asking to use this.

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To show it's covered by the Illinois law, you have to show that the communication was made under circumstances

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that the person would reasonably consider to have been private.

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And in this recording here, so that should be an expectation of privacy, a reasonable expectation of privacy.

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And in this case, it was a long call, a long discussion with, I think, all of the mechanics.

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And he began at the beginning saying, you can tell the union everything I'm saying here, and repeatedly,

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throughout the talk that he was giving, he kept saying, and you can tell the union that, and you can tell the union that.

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And he told them they could write it down.

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So how would you argue that he had a reasonable expectation of privacy vis-a-vis disclosure to the union?

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Well, obviously, we weren't afforded the opportunity to make that.

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I'm sorry, you weren't afforded the opportunity to make what?

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At hearing, we weren't afforded the opportunity to make any record regarding what the statute said.

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Did you ask to demonstrate his reasonable expectation of privacy?

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We were just overruled on the black letter law that state laws not followed at the hearing.

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You must have raised the state law issue.

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We did.

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We did.

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When you raised that issue, did you, as part of raising it to the ALJ, did you explain why it applied, like why you had a reasonable expectation of private, why Mr. Lascaris had a reasonable expectation of privacy?

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No, Your Honor.

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We weren't given an opportunity to, and I didn't.

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It happened very, very quickly.

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We raised the objection.

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The judge stated the Black Letter law.

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Before the board, did you raise an argument as to why

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This would even be covered by the statute.

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Why would have a reasonable expectation of privacy under those circumstances.

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I don't.

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I do not recall that argument being in the brief to the board.

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No.

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Is it in the brief to us.

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I don't recall seeing an explanation of since he repeatedly told them they could write it down and they could share what he was saying with the union.

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I didn't see an argument in your brief as to why he nonetheless had a reasonable expectation of privacy.

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No, we probably did not make the argument under the statute either.

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We were trying to attack first the wall that it's an admissible wall by itself before trying to meet the elements of the statute.

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OK.

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Thanks.

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So in any event, our argument is that the Black Letter law here

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ought to be changed and that Illinois' interest, you know, the federal statutes regularly recognize state law.

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The board recognizes state law when it comes to right to work.

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There's no reason that the slight burden of knowing a few states' evidentiary requirements would burden board proceedings here.

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Turning to the most important issue in this case,

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is the termination of John Vizbikis, the 8A3 allegation.

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That allegation had to do with the recent GM case overturning the precedent.

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The respondent in this case asked for a remand on October 8th of last year, anticipating this very dilemma, and we were denied.

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And then ironically, the board stated on the 13th of August,

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that they wanted the issue remand.

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Nonetheless, in that statement, the board stated, quote, the board no longer seeks enforcement of the discharge.

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We can agree with that.

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And based on that statement, we would seek summary dismissal of the allegation.

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But failing that, we would argue that the GM case requires a remand, I mean, a dismissal of the allegation based on the new test

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does it, Mr. McCarthy, did you preserve this issue?

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Because the the A. L. J. Applied both the right line test, which is what GM now says is applicable, um, as well as the Atlantic Steel test.

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And there are findings, uh, in the A. L.

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J.'

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's decision that this biggest has protected union activity was the primary motivation for discharging him.

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And I don't see any

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exception to that on the ground that the employer would have discharged him anyway, even assuming that the union, that there could be a showing of a motivation related to his protected activity?

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Well, yes, Your Honor.

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I believe the exceptions do cover that.

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And just as importantly- Point me to where they do, because I looked at them with this in mind.

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see that as part of them.

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The exception, so in JA page 47, they accept to the decision that union activity was a motivating factor.

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This is exception number 11, exception number 12,

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except to the portion of the finding that this Biccas's behavior was not an egregious violation of company policy, and except to the finding this Biccas's conduct did not extinguish in section seven rights.

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I think those would be inclusive enough to cover that, your honor.

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Walk me through that, how you would, I mean, cause you know, under right line, the burden is on the employer,

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to show that it would have fired the individual anyway.

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And I mean, this is not a case in which someone is using profane language and getting a warning.

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And so it would be important to have the employer have proffered proof here in order to preserve the applicability of GM.

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And I realize there's also the question of the board has said it doesn't want to enforce where that leaves us as a court.

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And I appreciate that is a separate procedural question.

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To your question, Your Honor, the board in achieving its ruling said that Right Line was inapplicable and ruled only on Right Line.

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I'm sorry, I said Right Line.

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I meant Atlantic Steel.

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They essentially reversed the ALJ on that.

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Ironically, again, it leaves us in a bit of a conundrum.

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And as to the, you know, our exception says that the abuse of conduct would not give rise to the protection.

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So the exception- That's a little bit more of an Atlantic steel characterization, right?

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Giving rise to the protection.

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So I guess the question is, do we have anything, any exception to the ALJ's square reliance on

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right line that says, look, this is the kind of thing, we can't tolerate this, we wouldn't have fired him anyway.

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To speak to the boss, I mean, this is a small family run business, this is a man who, you know, his authority in the workplace is really important.

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So we have a record of, you know, if anybody does this kind of direct insubordination, we do fire them.

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And I was looking for and I just didn't see any assertion or, or evidence to that effect or testimony.

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Well, I think the severity of the conduct is what we would rely on in saying that we would have taken the same action anyway.

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We do not think Judge Rosas considered completely in his decision the right line factors, and nor did he give us an opportunity to go in him.

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His decision.

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What do you mean by severity of the conduct?

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It was sort of an insult.

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in Greek, no less, so that maybe no one else would even, Judge Katz's might understand it, but wouldn't.

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So how was that severe?

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How was that severe, particularly given the amount of salty language that had come out of Mr. Lascaris precipitating that comment?

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It's important that you raise that, Judge Mallette, and, you know,

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In terms of how you state it was precipitated, factually, partially, that's not correct.

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The board's brief.

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Okay, it was preceded immediately in time by.

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which was preceded by Basbicus provoking Mr. Lascaris by calling him a liar and raising the temperature in the room.

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Was he fired?

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I thought he was fired just for that epithet.

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I'm not sure it's an epithet for the Greek insult.

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No one pointed to the other parts of the discussion.

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He was definitely fired.

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I would say he was definitely fired for that statement.

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I'm just talking about how the conversation.

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No, I know.

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But I'm saying it was let's let's just say there was there was salty language by Mr. Lascaris as well.

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We do not deny that.

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All I'm saying is, if we're playing kindergarten, he didn't start it.

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No, no.

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So what made this insult in Greek severe?

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I was noting your word that it was severe conduct.

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And we're just looking at that.

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We're not looking back at this.

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But it seems like that type of language was not severe.

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It seems rather commonplace.

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I heard a lot of it in the recording of Mr. LaCascaris' discussion

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With the mechanics.

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So that's what I'm trying to understand what made it severe.

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My understanding is that in fact the the use of the Greek was quite intentional and that that that's an idiom that that has a

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a homophobic basis, you know, obviously it's ethically insensitive, but the nature of the comment itself isn't sort of the routine insulting banner that might've gone on between two of the employees every day on the shop floor.

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If he had insulted him in English, it might've been different.

[00:16:58] Speaker 03:
Obviously, I mean, it depends on what you say, Your Honor.

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He said the same thing in English.

[00:17:05] Speaker 03:
If you say the same thing in English, it probably doesn't have the same idiomatic meaning.

[00:17:11] Speaker 00:
OK, so it's because you said it in Greek.

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That's what made it severe?

[00:17:14] Speaker 03:
The nature of those words in Greek, yes.

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OK.

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All right.

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Do my colleagues have any more questions?

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We're way over time here.

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OK.

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We'll give you a couple of minutes on rebuttal still, Mr. McCurk, OK?

[00:17:27] Speaker 03:
Thank you, Your Honor.

[00:17:28] Speaker 00:
Great.

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We'll hear from the government now.

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The board.

[00:17:33] Speaker 05:
May it please the court, Jared Cantor, on behalf of the National Labor Relations Board.

[00:17:38] Speaker 05:
Your honors, I'm certainly interested and willing in addressing questions about the substantive unfair labor practices, the seven violations of 8A1, the violation of 8A5.

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Arguments so far has seemed very focused on

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the procedural questions, which I am more than happy to.

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I'd like to ask you about the things would not be the same statement.

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Yes, Your Honor.

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That could mean an awful lot of different things.

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And it happened sort of a month before there was a strike.

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So how is that not too ambiguous within the setting of even that whole month?

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uh, to, to count, to, to have reasonably, uh, been interpreted by the employee, Mr., by Sarah Bispikis, as threatening.

[00:18:37] Speaker 05:
Well, Your Honor, so what we have here is, is an implied threat of unspecified reprisals.

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So, so by its nature, we're starting with something- How do we know it's reprisals?

[00:18:45] Speaker 00:
Things would not be the same, could be, we're not going to have our same warm relationship, the sort of family feelings that we had here.

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Things will just get more formalized.

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Is that a threat?

[00:18:56] Speaker 05:
Well, Your Honor, that would be the good, that warm family relationship then starts sounding like the colonial parking case that the board cited, that the good rapport would be over.

[00:19:07] Speaker 05:
I mean, essentially when we're looking at the totality of the circumstance.

[00:19:10] Speaker 00:
It'll be a lot more formality to things, right?

[00:19:14] Speaker 00:
I'll have to go to the union and it'll just be more formal.

[00:19:17] Speaker 00:
How's that different than sort of the, like the employees will be messing up if they join a union from Phoenix Globe?

[00:19:24] Speaker 05:
Well, Your Honor,

[00:19:26] Speaker 05:
Messing up, they're making a mistake, but that doesn't necessarily imply something is going to be different.

[00:19:33] Speaker 00:
We're going to be messing something up.

[00:19:37] Speaker 05:
But nothing, we have nothing else other than messing up.

[00:19:39] Speaker 05:
I think looking at the totality of the circumstances here, an important difference is here we have the company president who is a person and looking at the tableau before the court, everything that ends up spinning out at his direction,

[00:19:55] Speaker 05:
or by his own actions, him during a conversation not about the strike, bringing up the strike and saying, if you guys go on strike, things aren't going to be the same.

[00:20:08] Speaker 05:
Things won't be the same.

[00:20:10] Speaker 00:
I know you're referring to things that happened a month or more later.

[00:20:14] Speaker 00:
And I'm just wondering on when we normally when we look at context in which a statement is made, we look at a

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sort of more immediate context.

[00:20:24] Speaker 00:
If the strike had been three months later, let's assume there's no unfair labor practices in between.

[00:20:30] Speaker 00:
So you have, he says this, and then three months later, there's a strike.

[00:20:34] Speaker 00:
Would that be relevant context on this ambiguous statement?

[00:20:38] Speaker 05:
Well, Your Honor, the board said it wasn't necessary for the violation here, the fact that everything came later.

[00:20:44] Speaker 05:
The substance of the violation here is looking at the circumstances, the board

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that this is an implied threat.

[00:20:53] Speaker 05:
It's unspecified reprisals.

[00:20:55] Speaker 05:
The board made an inference here that what Lascaris was talking about is not that things aren't going to be the same, they're going to be better.

[00:21:04] Speaker 05:
It's that what Gissell talks about, that we might have a disinterested ear here as we're sitting in virtual court,

[00:21:12] Speaker 05:
but that an economically dependent employee is going to pick up on the implications of words such as, if you guys go on strike, things aren't going to be the same.

[00:21:23] Speaker 00:
Except they didn't see any testimony from, and I'm sorry if I'm not saying it right, but this is because about how he reacted to that comment.

[00:21:32] Speaker 00:
It was interesting that they asked him the question, he said that, and then no one said, how did you interpret that?

[00:21:38] Speaker 05:
Well, Your Honor, that's because it

[00:21:41] Speaker 05:
and this is AVACOR, which we cite in our brief, whether that employee is actually coerced or not is not relevant.

[00:21:47] Speaker 00:
Well, that's not an automatic disqualification, but it sure would be some relevant evidence.

[00:21:52] Speaker 00:
If he had sent something, you certainly would have argued it as relevant evidence to show how employees, a reasonable employee, might react.

[00:22:00] Speaker 00:
So I was just curious as to why.

[00:22:01] Speaker 00:
It just struck me as curious that you have this fairly ambiguous statement.

[00:22:07] Speaker 00:
no question to the one person, only one employee heard it and there's no inquiry as to how that person, I'm assuming Mr. Bisbeckis is reasonable, reacted to it.

[00:22:17] Speaker 00:
And then we have to start hunting a month down the road to look for context to transport backwards in time to inform what that sentence meant.

[00:22:29] Speaker 05:
Well, Your Honor, I don't think, again, the board didn't say it was necessary.

[00:22:33] Speaker 05:
The board certainly in footnote seven points to circumstances where it's

[00:22:38] Speaker 05:
It does that, and it's fine to do, but the board's primary finding here, and this is sort of what we talk about in the brief with regards to progressive, that the board here made an inference that what he was talking about were going to be negative consequences.

[00:22:55] Speaker 05:
And I don't think the company, Naperville's ever argued that what he was talking about were things were going to be better.

[00:23:02] Speaker 05:
So what, so maybe we're at the knife's edge here.

[00:23:05] Speaker 05:
So the board's inference here is that this was, he was talking about negative consequences and the reasonable tendency would have been for an employee to pick up on that, that this was an implied threat.

[00:23:18] Speaker 02:
Well, indeed.

[00:23:18] Speaker 02:
I mean, putting it together with the testimony that the ALJ is relying on, you have,

[00:23:30] Speaker 02:
Two pieces of testimony that I saw.

[00:23:32] Speaker 02:
One is Les Curis, who says that he doesn't remember any discussion about this at all.

[00:23:41] Speaker 02:
And then you have Vespiquis, who said, I initiated the meeting to discuss some issues that I was having in the shop.

[00:23:47] Speaker 02:
And after we talked about those issues, he, Les Curis, started the conversation by saying that if we went on strike, things wouldn't be the same.

[00:23:55] Speaker 02:
So it doesn't seem like a big struggle

[00:23:58] Speaker 02:
to see that there is substantial evidence for the ALJ to find that it was in reaction to and adverse to the notion that they should go on strike.

[00:24:13] Speaker 02:
No?

[00:24:15] Speaker 02:
I mean, I take it that's your position.

[00:24:18] Speaker 05:
Yes, your honor.

[00:24:20] Speaker 05:
I think that's what the board articulated here.

[00:24:24] Speaker 05:
before that point that it makes about it, it not being necessary to look at how everything else plays out here.

[00:24:33] Speaker 05:
So your honor is.

[00:24:34] Speaker 02:
I know having some problems.

[00:24:38] Speaker 02:
I have the world's most temperamental camera, but I think it won't affect the.

[00:24:44] Speaker 02:
The audio has stayed so far.

[00:24:47] Speaker 02:
More important.

[00:24:50] Speaker 02:
I would love to, if my colleagues are

[00:24:55] Speaker 02:
fine on that point.

[00:24:55] Speaker 02:
I would love to ask about this question about GM.

[00:24:59] Speaker 02:
And in particular, the board's position that remand is warranted where, as you heard me in questioning Mr. McHarg, I don't see that there's a evidentiary basis for the employer having preserved the second step, you know, bearing its burden under right line.

[00:25:18] Speaker 02:
And so that we have the preliminary, I think I should turn this off, we have the preliminary

[00:25:23] Speaker 02:
determination that, sorry about that, that there was animus, the discharge.

[00:25:32] Speaker 02:
And then we don't have any exception to that or show what the, what the policy would have been and whether this is the kind of thing for which they would have discharged Mr. Vespikas in any event.

[00:25:49] Speaker 05:
Yes, your honor.

[00:25:50] Speaker 05:
I, I, so,

[00:25:54] Speaker 05:
I would have to, you know, I know we just looked at the exceptions here.

[00:25:59] Speaker 05:
I, you know, looking at how this played out, the the judge did this right line analysis.

[00:26:08] Speaker 05:
And then the company's defense, he then sort of analyzed under Atlantic Steel,

[00:26:15] Speaker 05:
And as the board pointed out that that was not the way to do it, that when you have this misconduct that's part and parcel of the protected activity, you don't do right line.

[00:26:25] Speaker 05:
It should have just been an Atlantic steel analysis.

[00:26:29] Speaker 05:
The Council for Naperville accepted to the judges right line analysis.

[00:26:41] Speaker 05:
if my recollection is correct, and the Atlantic steel stuff.

[00:26:45] Speaker 05:
And I believe consistently throughout this, and I might be confusing this maybe with a different case, but my recollection is the council did throughout this argue that Atlantic steel was a bad task, that it privileged horrendous conduct that should not be tolerated.

[00:27:01] Speaker 02:
And the employer also talked about right line, but only on the first prong and didn't say, and even if,

[00:27:11] Speaker 02:
given that the ALJ, I mean, it seems like it has to be preserved in exceptions, right?

[00:27:15] Speaker 02:
That the employer says, you know, look, my position is that we weren't acting in response to protected activity.

[00:27:22] Speaker 02:
That exception was clear.

[00:27:26] Speaker 02:
And then, you know, in order to preserve the issue that GM makes relevant, it would also have had to say, and, you know, even if we had, this is the kind of thing for which we fire people all the time.

[00:27:40] Speaker 02:
And in fact, we have a policy against foul language in the workplace or speaking with indirect and subordination to supervisor, but there's nothing in the evidence regarding that.

[00:27:54] Speaker 02:
So I'm just, I feel like we're a little stuck.

[00:27:58] Speaker 02:
I mean, are we in your view in a position if we disagree with the board on this to enforce where you have said as an institutional matter that you

[00:28:10] Speaker 02:
no longer seeking to enforce.

[00:28:12] Speaker 02:
It seems it puts us in a very odd position.

[00:28:15] Speaker 05:
Well, Your Honor, from my experience, this certainly the instances where the board asks for, depending on the nature of it, either the whole case or an issue to come back based on a change of intervening law that happens in over the last few years has happened with some regularity.

[00:28:35] Speaker 05:
And the board acted consistent with that here.

[00:28:40] Speaker 05:
these issues about what were or were not preserved sort of gets into the arguments that would normally be made based on Section 10E about whether the court would have jurisdiction to consider those arguments because they were or were not raised at various times.

[00:28:56] Speaker 00:
Well, we always, I mean, it's, I thought it was fairly clear that if it seems like remand would be futile, because on the record, it would be irrational.

[00:29:10] Speaker 00:
for the agency to reach a contrary decision.

[00:29:12] Speaker 00:
We do that in administrative law cases, and I don't think the board's an exception.

[00:29:16] Speaker 00:
So we do that as an exception to the remand rule.

[00:29:20] Speaker 00:
And unless the board is planning to allow all kinds of new evidence in, and maybe that's what the board's planning to do, but if they're planning to decide it on this record, and if, and I'm just just hypothetical, but if we were to think that it would be irrational on this record,

[00:29:36] Speaker 00:
to find that the firing was not an unfair labor practice, applying the right line test, where there's no evidence that they would get fired otherwise, then why would we remand?

[00:29:53] Speaker 05:
Well, Your Honor, my recollection is that the company had disputes with the ALJ's right line analysis.

[00:30:03] Speaker 05:
and that the board didn't address those challenges because it went right to Atlantic steel?

[00:30:10] Speaker 02:
I don't recall.

[00:30:12] Speaker 02:
Well, one of the problems that we've had is that the appendix and the administrative record do not contain the employer's exceptions brief, the exceptions themselves.

[00:30:26] Speaker 02:
And the only part that I see them

[00:30:29] Speaker 02:
I mean, they do mostly focus on Atlantic steel and on the notion that it was that there was an animus causing this discharge, but also the more when you can infer what one can infer from the board response to the exceptions describes the respondents exceptions and they don't go into any any argument that they would have taken this action in any event, even apart from any putative animus.

[00:30:57] Speaker 02:
It's just not in there.

[00:31:00] Speaker 05:
Yes, I would have to look at the respondents or the company's brief and supportive exceptions.

[00:31:05] Speaker 05:
I mean, certainly at this point, not necessarily having the foresight maybe to prepare for that line of reasoning.

[00:31:14] Speaker 05:
And that would sort of be presupposing what the board would want to do in terms of, of barring the company from making any of the arguments that it that it had made before.

[00:31:26] Speaker 05:
without, again, sort of looking at what had been argued before.

[00:31:30] Speaker 02:
And counsel, I know, will get a reply and make- Following what you're saying about barring the company from making the arguments it made before.

[00:31:37] Speaker 05:
Well, to the point about what could happen on remand, that basically that this case would come out the exact same way because they hadn't preserved any arguments

[00:31:51] Speaker 05:
to be making.

[00:31:52] Speaker 05:
I thought that was a line of inquiry here.

[00:31:54] Speaker 02:
I'm just confused by the board's position on this, just because right line was in the case before the ALJ.

[00:32:02] Speaker 05:
Correct.

[00:32:04] Speaker 02:
And the ALJ said, this is the governing test.

[00:32:09] Speaker 02:
And later, it turns out the board says otherwise.

[00:32:11] Speaker 02:
But when the ALJ says, this is the governing test, and the parties have briefed, and then the parties have an opportunity to make a record, and then they have an opportunity to raise exceptions,

[00:32:21] Speaker 02:
does seem awfully much like a completely second bite at the same apple for the board to say, oh, now that the board has clarified that it's not interested in Atlantic steel, we're gonna send this back for redo under right line, which as I read the record was already litigated the first time around.

[00:32:42] Speaker 05:
But it was not ruled on by the board itself, Your Honor.

[00:32:45] Speaker 05:
The board didn't address the ALJ dip.

[00:32:48] Speaker 02:
I see, so it could go back to the board

[00:32:51] Speaker 02:
on the existing record and just say board or we could say it wasn't preserved and therefore no jurisdiction.

[00:33:00] Speaker 05:
Well, certainly I can't say if this were to go back to the board.

[00:33:04] Speaker 05:
I can't say whether the whether company would file a motion to reopen the record or or whether the board would ask for position statements or might just file the motion to reopen.

[00:33:14] Speaker 00:
Didn't we get a letter on that.

[00:33:15] Speaker 05:
The company filed a motion to reopen which the board through its executive secretary did deny because at that time the record had been filed with the court.

[00:33:25] Speaker 05:
So the board no longer has any jurisdiction over the case under the act.

[00:33:30] Speaker 05:
So that motion would have to be upon remand and of course at the conclusion of appellate proceedings because the record would have to come back to the board for it to exercise jurisdiction.

[00:33:43] Speaker 05:
You know, certainly

[00:33:45] Speaker 05:
The board always has an interest in having its orders enforced.

[00:33:50] Speaker 05:
This is a discharge where the board obviously always takes great interest.

[00:33:55] Speaker 05:
But in these kinds of cases where there is a change in the law, it does ask for it back to analyze.

[00:34:05] Speaker 05:
I've had some experience with this.

[00:34:07] Speaker 05:
Generally, there's not an opposition to it.

[00:34:09] Speaker 05:
Parties usually

[00:34:11] Speaker 05:
are interested in the change of law because it's often favorable to them.

[00:34:15] Speaker 05:
Obviously, I certainly stand by our briefing on Atlantic Steel as being a strong case under then existing board law.

[00:34:24] Speaker 00:
Well, when you're talking about a discharge of an employee, a lot of time has passed already.

[00:34:30] Speaker 00:
And so if it's just going to the board and not back to the ALJ, how long will this process take?

[00:34:38] Speaker 00:
Because you've got an employee here who's been discharged.

[00:34:41] Speaker 05:
Yes, Your Honor.

[00:34:43] Speaker 05:
And obviously, I can't predict what will happen when it goes back to the board.

[00:34:49] Speaker 05:
The board certainly could solicit position statements from the parties.

[00:34:56] Speaker 05:
I've seen instances in that happening.

[00:34:58] Speaker 05:
The board could decide, look at essentially all the pleadings in this case and say, OK, looking at the party's arguments about the right line issue, we're now going to decide the case just based on those

[00:35:11] Speaker 05:
pleadings, everything's there, the board could decide to send it back for further hearing if it thought that more evidence was warranted.

[00:35:20] Speaker 05:
But it is true that essentially the case was sort of litigated on right line, but based on the company's defense, the ALJ sort of turned the affirmative defense into an Atlantic steel analysis.

[00:35:33] Speaker 05:
And then as the board pointed out, based on what the company's argument was, you don't do a right line, because

[00:35:39] Speaker 05:
pre-General Motors, the board was not pulling apart protected activity and misconduct occurring during it.

[00:35:47] Speaker 05:
It just sort of lumped it all together and analyzed whether the misconduct was so egregious.

[00:35:51] Speaker 05:
But now in General Motors, the board has said, for a lot of concerns voiced by this court and other courts, that we are going to pull those apart.

[00:36:00] Speaker 05:
And we are going to analyze this under traditional right line where the general council will make his showing to the board.

[00:36:05] Speaker 05:
The board will then, then the burden shifts to the affirmative defense.

[00:36:10] Speaker 05:
And there's always the sort of pretext bounce back to the general council.

[00:36:15] Speaker 02:
Can I just ask before I forget that it would be helpful to have the petitioner's sections brief.

[00:36:20] Speaker 02:
As I said, we got the record, but it's not included.

[00:36:23] Speaker 02:
And that would help us evaluate the preservation question, I think.

[00:36:27] Speaker 05:
The board can provide those as soon as argument ends.

[00:36:30] Speaker 05:
to the the clerk that we previously provided the requested for answering brief and reply brief.

[00:36:38] Speaker 05:
I can do that as soon as argument ends your honor.

[00:36:40] Speaker 02:
Perfect.

[00:36:40] Speaker 02:
Thank you.

[00:36:41] Speaker 04:
I mean, certain boards view itself as having discretion to excuse any forfeitures.

[00:36:53] Speaker 04:
Under Section 10 E. Just under whatever.

[00:36:58] Speaker 05:
Well, the board certainly sort of internally, if an issue isn't raised in an exception, then it won't generally address it.

[00:37:10] Speaker 05:
So for instance, a party hasn't accepted to a finding by a judge, and then the board adopts it in that case.

[00:37:18] Speaker 05:
Then maybe you get a motion for reconsideration afterwards.

[00:37:21] Speaker 05:
Generally, absent some extraordinary circumstance,

[00:37:26] Speaker 05:
then the board would say it's been waived or forfeited by not raising it to us.

[00:37:31] Speaker 04:
Maybe an intervening change in law is an extraordinary circumstance.

[00:37:36] Speaker 04:
And the board's ability to consider issues like that may be greater than our ability to consider issues like that.

[00:37:48] Speaker 05:
Yes, Your Honor, certainly.

[00:37:49] Speaker 05:
And again, that sort of depends how this plays out

[00:37:52] Speaker 05:
I've had experience that runs the gamut when a case comes back.

[00:37:55] Speaker 05:
Sometimes the board does ask for parties position statements.

[00:38:00] Speaker 05:
And sometimes the board does not sometimes parties submit them anyways.

[00:38:05] Speaker 05:
And sometimes then the board just decides it really depends on what the board wants to do based on what it sees in the record and how the case was litigated.

[00:38:15] Speaker 05:
And I certainly can't bind the board's hands and commit it to one

[00:38:20] Speaker 05:
course of action or another.

[00:38:21] Speaker 05:
And I'm sure council would have his own strategy if the case were to go back on this issue.

[00:38:29] Speaker 00:
My colleagues have further questions.

[00:38:33] Speaker 00:
Okay, thank you much.

[00:38:34] Speaker 00:
Thank you very much, Mr. Cantor.

[00:38:35] Speaker 00:
And we will give Mr. McCarg two minutes.

[00:38:39] Speaker 03:
Thank you, Your Honor.

[00:38:40] Speaker 03:
I'll be very, very brief to judge Pillard's question.

[00:38:44] Speaker 03:
I thought the clerk asked for these briefs the other day, but for the record, I think it's pages 12 through 15 of our brief in support of exceptions, covers our right-line appeals, and in my opinion,

[00:39:00] Speaker 03:
exceptions 12 and 13 would cover that a finding that the behavior was violated company policy would be inclusive of same thing anyway type defense.

[00:39:13] Speaker 03:
Adding to other issues that came up.

[00:39:19] Speaker 03:
Similarly, the board was silent

[00:39:22] Speaker 03:
in the 8A5 finding that we denied access to the union.

[00:39:28] Speaker 03:
However, the briefs and parties failed to recognize that the board didn't even affirm the ALJ.

[00:39:37] Speaker 03:
They were just silent.

[00:39:38] Speaker 03:
It's effectively a pocket veto.

[00:39:41] Speaker 03:
And it's difficult for an appellant to hit that moving target.

[00:39:48] Speaker 03:
As Your Honor noted, many of these unfair labor practices were vague and not considered within their context.

[00:39:58] Speaker 03:
The first one that Judge Millett mentioned had the quantum leap analysis where they analyzed conduct four months hence and attributed it backwards in time.

[00:40:12] Speaker 03:
the idea of how would a reasonable employee react to that.

[00:40:20] Speaker 03:
I mean, the statement, things will not be the same is possibly the most amorphous.

[00:40:27] Speaker 03:
I mean, it could.

[00:40:28] Speaker 00:
Oh, I don't know about that.

[00:40:30] Speaker 00:
I don't think he's predicting positive improvements.

[00:40:35] Speaker 00:
And there's no evidence that he was making an economic statement of fact about the nature of the business.

[00:40:40] Speaker 03:
I'm not arguing that, Your Honor, I think.

[00:40:42] Speaker 00:
That's what you'd have to do to make it under Cassel.

[00:40:46] Speaker 00:
There has sort of economic business basis for the comment if it otherwise could be, it's interpreted certainly as things aren't getting, things are gonna get worse.

[00:40:59] Speaker 00:
And he's not talking about business.

[00:41:01] Speaker 00:
So what was he talking about?

[00:41:02] Speaker 00:
What was going to get worse?

[00:41:04] Speaker 03:
That section of Gissell goes to predictions, Your Honor, the free speech proviso.

[00:41:10] Speaker 03:
He absolutely does not say things are going to get worse.

[00:41:13] Speaker 03:
The quote that's credited, he denied it, of course.

[00:41:16] Speaker 03:
The finding goes against those.

[00:41:18] Speaker 03:
But the quote is that things would not be the same.

[00:41:22] Speaker 00:
Right.

[00:41:22] Speaker 00:
But no one seems to think, are you telling me that he was making that in

[00:41:26] Speaker 00:
sort of a cockeyed optimist statement that things are going to get much better?

[00:41:31] Speaker 03:
No, I'm sorry, Your Honor.

[00:41:32] Speaker 03:
I'm not saying that either.

[00:41:34] Speaker 03:
I'm saying not the same may mean exactly what it says.

[00:41:38] Speaker 03:
It's not that it's, it is not better or worse.

[00:41:41] Speaker 03:
It literally means different as in, you know, there'll be a third party here.

[00:41:49] Speaker 03:
not the same.

[00:41:51] Speaker 03:
You know, there'll be seniority lists, vacations will be handled different.

[00:41:54] Speaker 03:
I mean, not the same.

[00:41:56] Speaker 03:
I mean, literally what it says.

[00:41:58] Speaker 03:
They didn't even by the credited testimony, there was not extensive conversation about this.

[00:42:04] Speaker 03:
They were talking about the price of t shirts.

[00:42:06] Speaker 03:
I mean, maybe he meant that they'd have to buy t shirts in the future.

[00:42:10] Speaker 03:
I wasn't there either.

[00:42:12] Speaker 03:
But I do think something is vague is not the same.

[00:42:15] Speaker 03:
All of the cases.

[00:42:17] Speaker 00:
I'm not going to provide you t shirts and you guys go on a strike.

[00:42:20] Speaker 00:
I'm not going to provide you t shirts anymore.

[00:42:22] Speaker 00:
Like I have in the past.

[00:42:24] Speaker 00:
if that's what I think that would be worse.

[00:42:26] Speaker 03:
Even that would be worse than what was said, your honor.

[00:42:28] Speaker 03:
He was still buying the t shirts in the course of the conversation that took place.

[00:42:34] Speaker 03:
So I don't think he was trying to change that policy or make it more burdensome at that time.

[00:42:40] Speaker 03:
As I you know, as I said, he denies it.

[00:42:44] Speaker 03:
So you know, we can't get we're not here attacking that clatterily.

[00:42:48] Speaker 03:
We know that's a fool's errand.

[00:42:50] Speaker 03:
So we're taking the finding that we have.

[00:42:54] Speaker 03:
I'm just saying that I think in this circumstance with the evidence we have, the words mean literally what they say, not the same.

[00:43:03] Speaker 00:
My colleagues have any further questions?

[00:43:05] Speaker 00:
No, thank you.

[00:43:06] Speaker 00:
All right.

[00:43:07] Speaker 00:
Thank you, Mr. McHarg.

[00:43:08] Speaker 03:
The case is submitted.

[00:43:10] Speaker 03:
Thank you very much for your time.

[00:43:11] Speaker 03:
You're welcome.

[00:43:11] Speaker 00:
The case is submitted.