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Case number 20-1030 et al.

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DH Longpoint Management LLC petitioner versus National Labor Relations Board.

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Mr. Delaquil for the petitioner, Mr. Hickson for the respondents.

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Good morning.

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Good morning, Your Honors, and may it please the court.

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I'm Mark Delaquil arguing on behalf of the petitioner, which I'll call Terra Naya Resort after the name of the property.

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There were three fundamental mistakes in the board's decision that merit granting the petition for review in this case.

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The first was the board's failure to consider significantly similar precedent concerning when kitchen managers constitute 211 supervisors under the National Labor Relations Act.

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Terranea raised this precedent and its exceptions to the board and the board did not address it at all.

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Under this court's decisions, including Brusco Tug and Lemuino in college, that merits granting the petition.

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Separate and aside from the board's failure to consider its precedence, its decision that Mr. Lovato

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was not an LRA section 211 supervisor, was unsupported by substantial evidence.

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And third, the board's decision that Terranea's discipline of Mr. Lovato was motivated by animus cannot be supported because it is materially based on consideration of imputed animus

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from the president of Terranea to the actual disciplinary decision makers under circumstances that this court has held were not appropriate in its flag staff decision.

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Turning to my first argument that the board ignored its precedence over the years, the board has had occasion to consider when kitchen managers constitute to 11 supervisors on numerous occasions, most notably in the Piccadilly cafeterias case.

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The board the board determined that an assistant chef and a relief chef constituted to 11 supervisors, despite the fact that they did not prepare the recipes they had no input over the menus and they had no input over work schedules.

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where those cooks directed their subordinate cooks for a substantial portion of their shifts, even though the head chef frequently exercised overall supervision.

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And the board made that decision because it concluded that the preparation, timing and presentation of dishes and ensuring that those were prepared correctly and appealingly required the exercise of independent judgment.

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Each of those considerations applies equally to the case of Barb.

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Mr. Lovato was in charge of the kitchen frequently, generally from eight to 10 to 30.

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During that time, he had authority to direct the chefs who worked under his supervision.

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And there's no dispute in this case that Mr. Lovato had the authority to direct those cooks.

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And as well, he also had responsibilities reorganizing the kitchen, dismissing employees when the workload was insufficient, training and ensuring that the line was prepared.

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Under this court's decisions in Bruscoe Tug and Lemoyne Owen, when a party raises a precedent to the board and that precedent is significantly similar to the case at bar

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the board is required to discuss it and explain why it's reached a different decision.

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The board did not do so at all in this case, and that merits granting the petition.

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In response to this argument, the board's primary position was that Piccadilly cafeterias was outdated in light of the NLRB's subsequent decisions in Oakwood

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and the Supreme Court's decision in Kentucky River.

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But that raises a chennery problem.

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If the board believes that Piccadilly, Pioneer Hotel, and the other cases that the employer cited are no longer good law, or that they should be afforded less weight, it should be the board making that explanation, not the general counsel in litigation.

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And apart from the board's failure to consider whether Mr. Lovato considered the Piccadilly case and the other applicable precedent about kitchen managers, its decision that Mr. Lovato was not a 211 supervisor is unsupported by substantial evidence.

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There are three elements that the employer needs to meet in a case like this to show that an employee is a 211 supervisor.

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The first is that he has the authority to direct subordinate employees.

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The second is that he exercises independent judgment.

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And the third is that he may be held accountable for his supervision.

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In this case, there is no dispute as to the first element.

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While the chef de cuisine and the sous chef were out of the kitchen, Mr. Lovato was a junior sous chef, inspected the dishes prepared by subordinate chefs to make sure that they were prepared correctly, prepared in a timely manner, and that if they were incorrect, they were redone.

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He often acted as an expediter directing the kitchen in that way.

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He trained and monitored in terms and reorganized the line.

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The second consideration is independent judgment.

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And on this ground, the board aired because it found that Mr. Lovato did not exercise independent judgment because he did not make the menu.

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He did not write the recipes.

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But in Piccadilly, which I had discussed earlier, that wasn't what the board considered relevant for independent judgment.

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What the board considered relevant for independent judgment was whether the kitchen manager ensured that the dishes were prepared in a timely, appealing, and proper manner.

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And that's what Mr. Lovato did.

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The third prong is the accountability prong, which under Oakwood,

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requires that the employer prove that there is a prospect of adverse consequences for a supervisor's failure to supervise.

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And on this is a classic substantial evidence problem where the record as a whole simply does not support the board's decision.

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Mr. Lovato's performance reviews in 2011 and 2015, those are located at JA540 and JA532, both noted that Mr. Lovato lacked leadership and needed improvement.

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Performance reviews for another

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Junior Sous Chef, Mr. Santos, also graded the Junior Sous Chef on leadership.

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In May of 2018, within a few months of the election.

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Excuse me, can I pause?

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I want to think a little bit more about this chenry problem that you're talking about.

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So in Oakwood, didn't the board say that it was establishing a definition for the first time with respect to responsible

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direction and didn't it say that with respect to independent judgment?

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Didn't it say it was changing the definition in response to Kentucky River?

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And in Brusco, didn't we say that pre Oakwood cases therefore had limited presidential value?

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I'll take all three of those in turn.

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On the question of responsible direction, it is fair to say that the board established a new precedent.

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And we believe for the reasons described earlier that we met it.

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And we also believe- But doesn't that mean that the prior, with respect to the prior cases, they are not, they have limited to presidential value and there's no reason for the board to have to say that again, is there?

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But I think there is a reason, at least under the facts of this case, because there is also the question of what the independent judgment that the board should be considering was.

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And this gets to the question of independent judgment.

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In Kentucky River and Oakwood,

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What happened was the Supreme Court found that the NLRB standard for 211 supervisor status was too stringent and that some employees who ought to be found to be 211 supervisors were incorrectly found not to be because of the board's categorical carve out of ordinary professional and technical judgment.

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So you essentially had too many type two errors.

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In Piccadilly, there was a finding that the employees were statutory supervisors.

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So as to independent judgment, that error did not infect and could not have infected the Piccadilly decision.

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And on the question of what independent judgment means for a kitchen manager,

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Whether it means do you write the menu or whether it means do you make sure that dishes are prepared properly, appealingly, and in a timely manner, Piccadilly is on all fours and needed to be considered.

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Third, turning to Bruscoe Tug, I believe what the board or what this court, excuse me, actually said in that case was that the board considered its pre-Oakwood decisions and that it found there that they were of limited precedential value with an explanation.

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And if that is going to be the outcome in this case, it's something that the board needs to consider on its own.

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It's not something that the general counsel ought to be raising in litigation.

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Does the board have to say it again and again, or isn't it enough to say once?

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I think the board does need to say it, if there is a significant showing and that's the test from Lemoine Owen that a pre Oakwood decision has application to this case.

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And again, I don't think that we would need to or want to argue for a categorical rule.

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that any time a party finds an arguably applicable pre Oakwood precedent that the board has to go and explain yet again no Oakwood changed the law.

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But where there's an aspect of a pre Oakwood precedent that does appear to be on point as Piccadilly is on independent judgment.

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and the party raises it before board, then I think the onus is on the board to explain why that aspect of the decision was not inconsistent with Oakwood.

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And in this respect, Oakwood in its independent judgment discussion does cite at least one pre Oakwood decision of the board as correctly stating its position.

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So it's not as if Oakwood swept away everything that existed before it.

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And that gets me also to the responsibility to direct prong, which you mentioned.

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The record evidence is ample that Mr. Lovato had responsibility to direct.

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I mentioned the two performance reviews.

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I want to mention two other items.

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In May 2018.

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Can I just interrupt for one second before you go on to that point?

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I didn't see this chinnery argument made until your reply brief as far as, well, I guess you've made it in your reply brief in response to the government's, I'm sorry, the board's brief.

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that there is a chinnery problem here if we accept the, the, um, the general counsel's explanation, but you, but you don't, you don't say that there's a chinnery problem in your opening brief in general with respect to, um, how the board decided this case.

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I'm just trying to understand your argument here with Picadilly.

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Sure.

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Uh,

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How it transpired is, in our exceptions to the board, we raised Piccadilly on the 211 supervisor status question.

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The board never mentioned it in its decision, which is the situation that we believe led to a Lemoine Owen and Bruscoe tug problem, and we cited Bruscoe tug on this

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issue in our opening brief.

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In response, the NLRB said, well, we didn't need to say anything about those decisions because Kentucky River and Oakwood were correctly straight the law and these were pre Oakwood decisions.

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And in response to that, in our reply brief, we said, no, that's a chennery problem.

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If the board believes that Piccadilly no longer accurately states the law or has less precedential value than it used to, then it needs to be the board that says that.

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And that's where the chennery problem came from.

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If the NLRB's brief was entirely silent on this issue, they would still have the arbitrary and capricious problem for Brusco Tug

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but they wouldn't have the chennery problem.

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It's not like the board's decision in this case said, no, Piccadilly is not good law because of Oakwood.

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The board never said that.

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The board never even mentioned Piccadilly.

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So I think it's pretty typical in that respect to raise a chennery argument in reply.

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I see.

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OK, I understand.

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All right.

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Given responsibility to direct in May 2018 within a few months and the same month of one of the allegedly retaliatory disciplinary incidents, Mr Lovato was put on a performance improvement plan.

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in part due to his lack of leadership.

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And in July of 2018, he was counseled and warned of discipline due to his lack of leadership.

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And this is at JA 397.

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And it says that the chef de cuisine is writing, quote, to note the disciplinary actions that may transpire from these issues if the behavior continues.

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She goes on to say, quote, Mr. Lovato's performance has been a cause for concern with the lack of leadership.

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Quote, Mr. Lovato is lacking any kind of initiative to guide the team in any sort of fashion.

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quote, after explaining my expectations, which included Mr. Lovato taking the lead in the station, he works assistant organizing the team and assisting guiding the interns.

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This is substantial evidence in support of a finding that there was a prospect of adverse consequences to Mr. Lovato as a result of his failure to supervise.

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And any evidence of actual or

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of actual consequences for any sous chef being held for junior sous chef, being held responsible for the performance of others.

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The record indicates that the witnesses were unable to provide on the stand any examples of junior sous chefs being disciplined for failing to show leadership.

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But I'm not sure what showing leadership means.

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What I'm asking is, although that's yet another point, I'm actually showing being held responsible for what somebody else does.

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The witnesses were unable to identify any such discipline.

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However, I would argue in this case that the absence of evidence is not evidence of absence.

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And I would also argue that the- Let me just get the facts right there.

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There are nine kitchens in the resort.

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And so at least nine sous chefs, is that right?

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That's right.

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One sous chef kitchen.

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And the absence of any time in history for any of those nine or any of their predecessors or successors to ever being held responsible, that's not evidence of absence?

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Not unless it was accompanied by evidence that there was another sous chef who displayed the continued lack of supervision of the line that you've seen with Mr. Lovato.

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And there was no evidence that there was any other junior sous chef at Terranea who had that same continual failure to supervise subordinate chefs.

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And I would note- Sorry, I'm having a question about the continuing failure to supervise.

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You used the word leadership.

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Does it say failure to supervise in the forms you're talking about?

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And does it say give an example of a failure to supervise?

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Well, I would note if I turn to the disciplinary or not disciplinary counseling memo warning of disciplinary consequences from on JA 397, it says Mr. Lovato was lacking any kind of initiative to guide the team in any sort of fashion.

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It also says, we ended the conversation with the hopes that Mr. Lovato will be able to provide leadership guidance and quote unquote supervision to our team at the capacity of a junior sous chef.

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Does it hold him accountable for anything that somebody on the team did?

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Did or didn't do there was no no circumstance like that was there.

[00:19:12] Speaker 01:
Well, there was the macaroni and cheese incident, and I want to turn to that briefly, I understand that the board found that the discipline was retaliatory.

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However, I don't understand the NLRB to be arguing that no discipline was appropriate for Mr. Lovato when he failed to supervise Mr. Flamenco in preparing what was supposed to be gluten-free macaroni and cheese.

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and instead sending a macaroni and cheese with a roux containing flour to sicken a child.

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Was it not correct that a week earlier no one had been disciplined for serving a gluten-containing pizza that sent a child to the hospital?

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That is correct, but I don't think that the instances are sufficiently similar, and let me tell you why.

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the what is called the parties, the pizza incident in May 19th of 2018 was the first in the record food allergy incident at Terranea.

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And as a result of that, a new procedures and emphasis on food allergies were adopted, including Ms.

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Guerrero

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in the in-room dining kitchen, who was the chef de cuisine, going over the standard operating procedures for food allergies at the beginning of every shift.

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Then six days later, on May 25, 2018, you had the macaroni and cheese incident when the macaroni and cheese that was supposed to be gluten-free went out of the kitchen while Mr. Lovato was in charge.

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And there's no dispute that he was in charge when that dish went out.

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Given the close proximity, and I would also direct the court to the emails from that investigation, which are at Joint Appendix 388 to 392, it's very clear that Mr. or Ms.

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Guerrero and Mr. Ibarra, who was the head of culinary operations at Terra Nea as a whole, were concerned about this lack of leadership

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that let the macaroni and cheese go out.

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And the chef or the cook, I'm sorry, who prepared it, Mr. Flamenco was given a written warning and Mr. Lovato was given a final written warning.

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And the company has argued because he was the supervisor and that it made sense to put the onus on him, particularly in light of a similar incident in some respects,

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in close proximate time.

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I understand the NLRB to be arguing that the level of discipline Mr. Lobato received was retaliatory.

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And I believe the board did find that.

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And that's what one of the things that's being reviewed today.

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But I don't think that the NLRB has or can argue that it was inappropriate to put consequences on the supervisor who allowed that dish to leave the kitchen when it never should have left the kitchen.

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Thank you.

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That's a real discipline.

[00:22:19] Speaker 05:
Yeah, so you've just spent a huge amount of time on the mac and cheese incident.

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And in fact, your blue brief devotes many pages to it.

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But Lovato was fired after the chicken wings incident.

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And I didn't see any place in the blue brief where you challenge that until you reply brief and the board actually argues that you forfeited that.

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I think that that goes.

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I didn't mean to interrupt Judge Tatel.

[00:22:53] Speaker 01:
Well, I think that goes to the procedure of this case.

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I don't understand the NLRB to be arguing and perhaps Mr. Hickson will disagree with me that it was inappropriate to discipline Mr. Lovato for

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the macaroni and cheese incident in some respect or to discipline him for the fried chicken incident in some respect.

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I understand the NLRB to be arguing that the ultimate termination was unlawful and that the reason that he was discharged after the fried chicken incident was because there was a final written warning

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in the macaroni and cheese incident.

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And so if that final written warning in the macaroni and cheese incident was non-retaliatory as we contend that the insubordination at the very least in the fried chicken incident where Mr. Lovato ignored a direct instruction from Ms.

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Guerrero to discard chicken that he had rinsed in water would allow termination.

[00:24:07] Speaker 01:
Do you make this point in the blue brief?

[00:24:10] Speaker 01:
We do.

[00:24:11] Speaker 01:
I believe this is made the very end of the brief.

[00:24:50] Speaker 01:
But your honor, I'm not seeing it right now, but I will get back to you on that.

[00:24:54] Speaker 05:
Okay.

[00:24:54] Speaker 05:
Well, you're out of time, unless Judge Garland or Judge Wilkins.

[00:24:58] Speaker 05:
Do either of you have any further questions?

[00:25:00] Speaker 02:
No, thank you.

[00:25:01] Speaker 05:
We'll hear from the board.

[00:25:06] Speaker 05:
Mr. Hickson.

[00:25:09] Speaker 04:
Good morning, your honors.

[00:25:10] Speaker 04:
May it please the court?

[00:25:11] Speaker 04:
I hope you can hear me well.

[00:25:13] Speaker 05:
My apologies.

[00:25:15] Speaker 04:
I'm sorry, your honor.

[00:25:16] Speaker 05:
Never mind.

[00:25:16] Speaker 05:
Just go ahead.

[00:25:19] Speaker 04:
Excuse me, Your Honor.

[00:25:20] Speaker 05:
I apologize for something you didn't hear me say, so we'll just move on.

[00:25:26] Speaker 04:
Good morning.

[00:25:26] Speaker 04:
May it please the court, Michael Hickson for the NLRB seeking full enforcement of the board's order in this case.

[00:25:32] Speaker 04:
The question before the court is simply whether substantial evidence on the record supports the board's determinations that the company, excuse me, that the company failed to prove Mr. Lovato's supervisory status and that it unlawfully disciplined and discharged him

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because of his prominent and extensive protected activities.

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This court has consistently recognized that board findings regarding both supervisory status and unlawful motive are entitled to special deference beyond the already high level of deference that substantial evidence review mandates.

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And here the record amply supports the board's findings on both questions and the court should therefore grant enforcement.

[00:26:13] Speaker 04:
The discussion so far today, it seems has focused on the 211 supervisory status issue.

[00:26:20] Speaker 04:
So I guess I'll plan to address that first.

[00:26:23] Speaker 04:
Go straight to the question about Chenery and the board not expressly addressing Piccadilly cafeterias and some other cases.

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in its decision.

[00:26:36] Speaker 04:
I think that the law of this court is clear that when the basis for distinguishing a case is readily apparent that it is not necessary that the board expressly address that case in its decision.

[00:26:52] Speaker 04:
And as we set forth in our brief, the pre Oakwood pre Kentucky River cases that the company relies upon are readily, it is readily apparent that their distinction and how they're not applicable here and would be of only the most limited presidential value because they perceive the Supreme Court's decision in Kentucky River and the board's subsequent decision in Oakwood.

[00:27:17] Speaker 04:
And there, as was discussed between Judge Garland and my colleague,

[00:27:21] Speaker 04:
the Supreme Court and the board made very significant holdings and the board guided by the Supreme Court's determination with respect to independent judgment revised, substantially revised and changed the standard as to independent judgment.

[00:27:37] Speaker 04:
So these pre-Oakwood cases do not apply the controlling legal standard that

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my opponent agrees is the controlling standard.

[00:27:48] Speaker 04:
We know that because not only does the Piccadilly Cafeteria, for example, not only does that case precede both Oakwood and Kentucky River, the case actually sets forth no standard of independent judgment.

[00:28:02] Speaker 04:
There is nowhere

[00:28:03] Speaker 04:
in that decision where any independent judgment standard is identified, and there's frankly no independent judgment analysis to speak of in that case.

[00:28:14] Speaker 04:
The judge seems to have simply assumed that these assistant chef's responsibilities would require independent judgment, but without explaining why, without setting forth any legal standard.

[00:28:27] Speaker 04:
The case also fails to recognize, as do all of the cases that our opponent cites, it fails to recognize that the party asserting supervisory status bears the burden of proof, a point that the Supreme Court upheld in Kentucky River, and that since Kentucky River, the board has been very consistent in emphasizing.

[00:28:47] Speaker 04:
And furthermore, nothing in that decision, Piccadilly cafeterias or any of the other decisions,

[00:28:54] Speaker 04:
contain anything in the way of specific examples as this court has said for example in a VISTA court, a post awkward case, what the statute requires is evidence of actual supervisory authority visibly translated into tangible examples, demonstrating

[00:29:12] Speaker 04:
the existence of supervisory authority.

[00:29:15] Speaker 04:
And the court emphasizes this again, for example, at the Manson terminals, it talks about how there must be specific examples in the record.

[00:29:22] Speaker 04:
These pre-Oakwood cases, pre-Kentucky River pre-Oakwood cases that the company cites contain no such discussion of any examples.

[00:29:31] Speaker 04:
So there is no Chenery problem.

[00:29:33] Speaker 04:
There is no problem.

[00:29:36] Speaker 04:
Well, there's just no problem with the pre-Kentucky River cases because it's readily apparent that they're distinct.

[00:29:43] Speaker 04:
Again, the court has said this in prior, both the board and the court have made this court and other courts, including this court in Briscoe Tug, the First Circuit in NSTAR, the Fifth Circuit in Entry G, Mississippi have repeatedly recognized that Kentucky River and Oakwood materially and importantly changed the standard

[00:30:01] Speaker 04:
and that therefore any prior decisions are of limited value.

[00:30:05] Speaker 04:
So there is no need for the board to address them here.

[00:30:09] Speaker 04:
I would just point out that in Bresco, yes, the board addressed cases there, but first, as Judge Garland raised the question, how many times does the board have to do that over and over again?

[00:30:19] Speaker 04:
And secondly, situation was a bit different there because there the case was actually on remand from this court's 2001 Bresco tug decision, which was issued prior to Kentucky River.

[00:30:30] Speaker 04:
And in the remand, the court asked the board to address these cases.

[00:30:34] Speaker 04:
But that remand was issued by the court prior to Kentucky River and Oakwood.

[00:30:39] Speaker 04:
So here, the company failed simply to meet its evidentiary burden to prove that Mr. Lovato exercised independent judgment and also failed to prove that he was accountable for other kitchen workers' performance.

[00:30:55] Speaker 04:
With respect to independent judgment,

[00:30:59] Speaker 04:
I think the company presents the menus and the recipes as if the board made a finding that Mr. Lobato had to exercise some kind of artistic creativity or something.

[00:31:11] Speaker 04:
But that's not why the board found the evidence important.

[00:31:14] Speaker 04:
It found the evidence

[00:31:15] Speaker 04:
important because as the Supreme Court itself emphasized in Kentucky River and the Board in Oakwood and subsequent cases have held, if a putative supervisor's discretion is significantly controlled or constrained by pre-established detailed instructions issued by the employer,

[00:31:34] Speaker 04:
then that does not show independent judgment.

[00:31:37] Speaker 04:
And that's what happened in this case.

[00:31:38] Speaker 04:
Mr. Ibarra, for example, testified that the menus and recipes were very comprehensive, thorough, finely tuned and highly precise standards and instructions.

[00:31:52] Speaker 04:
And Mr. Lovato did not have discretion to deviate from those instructions.

[00:31:56] Speaker 04:
So in that respect, the company failed to show independent judgment.

[00:32:00] Speaker 04:
I did want to address one factual point that was mentioned by my colleague, which is,

[00:32:04] Speaker 04:
He asserted that Mr. Lovato often acted as an expediter.

[00:32:07] Speaker 04:
That is simply not the case.

[00:32:09] Speaker 04:
The record shows that it was on very rare occasions, extremely rare occasions, that Mr. Lovato had ever acted as an expediter.

[00:32:16] Speaker 04:
The evidence shows that the vast majority of the time, he was simply a member of the line cooking at his station alongside the other cooks on the line, and he was responsible at all times

[00:32:29] Speaker 04:
for performing, well, for preparing I should say, the dishes that came in on the tickets that were to be prepared at his station.

[00:32:38] Speaker 04:
So I would just emphasize too that of course both independent judgment and responsibility or accountability under the statute, these are both mandatory requirements.

[00:32:49] Speaker 04:
So if the court affirms the board on one of them, the court must uphold the board's supervisory determination.

[00:32:56] Speaker 04:
We of course maintain that substantial evidence supports the board's findings both on accountability and independent judgment.

[00:33:04] Speaker 04:
But I did just want to emphasize that point.

[00:33:06] Speaker 04:
With respect to the evidence that the company puts forth on accountability, it claims that Mr. Lobato was subject to eventual discipline based on other cooks' performance.

[00:33:19] Speaker 04:
But it's undisputed that apart from the macaroni and cheese incident, which is deficient evidentially for its own reasons,

[00:33:28] Speaker 04:
that the company had never before in the history of any of its more than nine kitchens issued any level of discipline, even the lowest possible level of discipline to any of its junior sous chefs based on another cook's performance or failure to correct another cook's mistake.

[00:33:46] Speaker 04:
And more generally, the only evidence that the company put forward was simply too vague, too conflicting and too conclusory to satisfy its evidentiary standard under the precedence of the board and this court.

[00:33:59] Speaker 04:
I'd like to highlight I guess that when my colleague was asked about actual discipline and whether there is any evidence of it.

[00:34:06] Speaker 04:
There is none, except for the macaroni and cheese incident which I can address if you're honest with like, but.

[00:34:12] Speaker 04:
My colleague said that it was merely that the witnesses on the stand could not on the spot recall an instance.

[00:34:20] Speaker 04:
But it's much broader than that, Your Honors.

[00:34:23] Speaker 04:
It's that the company walked into the hearing knowing that it was going to assert this defense and that it is its burden

[00:34:32] Speaker 04:
to prove this defense that Mr. Lovato was a statutory supervisor under Section 211.

[00:34:38] Speaker 04:
So it's not as if the witnesses were caught off guard, and it's not as if the company showed up to the hearing not knowing that Section 211 supervisory status was going to be an issue.

[00:34:49] Speaker 04:
it came to the hearing knowing that it was gonna put on this defense, that it was its burden to prove the defense, and it came up with nothing in the way of actual discipline.

[00:35:01] Speaker 04:
Again, aside from the macaroni and cheese incident.

[00:35:04] Speaker 04:
So it's not just the witnesses on the stand, it's the company's overall failure to meet its burden.

[00:35:10] Speaker 04:
With respect to the macaroni and cheese incident, it's deficient, number one, because it was discriminatorily motivated.

[00:35:17] Speaker 04:
I mean, you can't prove a putative supervisor's 211 status.

[00:35:22] Speaker 04:
You can't meet that burden and reliance on discriminatorily motivated adverse action.

[00:35:28] Speaker 04:
That's the first reason.

[00:35:29] Speaker 04:
And in any event, even setting that reason to the side, the evidence is too conclusory to satisfy the company's burden because it is undisputed that one of the decision makers, Ms.

[00:35:40] Speaker 04:
Kwok,

[00:35:41] Speaker 04:
She participated in the collective decision to issue discipline against Mr. Lovato.

[00:35:47] Speaker 04:
And she understood that Mr. Lovato had directly worked on the dish, not just that he had been present in the kitchen and failed to catch someone else's error, but that he had actually put his hands on that dish.

[00:36:00] Speaker 04:
And she understood that that was part of the basis for the discipline.

[00:36:03] Speaker 04:
She was one of the three managers who made the collective decision that some discipline would be issued.

[00:36:09] Speaker 04:
And she was the person who drafted

[00:36:11] Speaker 04:
disciplinary notice.

[00:36:12] Speaker 04:
So in those circumstances, the evidence is too conclusory to satisfy the company's evidentiary burden.

[00:36:19] Speaker 04:
The company also mentioned

[00:36:22] Speaker 04:
the performance assessments as the board found and similar to the performance assessments and evaluations that were addressed by the sixth circuit in French town and by the board in Golden Crest healthcare, mere negative comments appearing on a performance evaluation are not enough to show more than a speculative risk of material adverse consequences.

[00:36:47] Speaker 04:
I mean, in French town,

[00:36:49] Speaker 04:
the evaluations of the nurses in that case talked about use language about leadership and about quote supervision.

[00:36:57] Speaker 04:
And in Goldencrest, the evaluations addressed by the board evaluated nurses on how well they directed CNAs.

[00:37:07] Speaker 04:
And the board and the court respectively in those cases found that those critical comments or comments about areas to improve performance were not enough to show a non-speculative and real risk.

[00:37:20] Speaker 04:
And it's true that it need only be a material, a prospect

[00:37:26] Speaker 04:
but a prospect of material adverse consequences, but the company must prove that prospect and must prove that it's real and non speculative and not simply hypothetical.

[00:37:37] Speaker 04:
Excuse me.

[00:37:41] Speaker 02:
Um, with respect to, I'm sorry, just so I get this, uh, the J a site that you're, uh, that opposing council raised J three 97.

[00:37:50] Speaker 02:
Is that what you're talking about?

[00:37:52] Speaker 02:
Or is it something else?

[00:37:54] Speaker 02:
That's the memo to file about starts by saying, I'm writing this not as a disciplinary notice, but to clarify some concerns and discusses leadership.

[00:38:03] Speaker 02:
Is that what you're talking about or something else?

[00:38:05] Speaker 04:
No, well, I wasn't specifically talking about that, your honor, although the response is somewhat similar.

[00:38:09] Speaker 04:
I was talking about the assessments given to Mr. Lovato in 2011, 2015, and May, 2018.

[00:38:21] Speaker 04:
The May 2018 assessment, the company calls a performance improvement plan.

[00:38:26] Speaker 04:
As the board points out in the footnote in the decision, there's no actual title on the document.

[00:38:31] Speaker 04:
Ms.

[00:38:32] Speaker 04:
Guerrero did refer to it as a performance improvement plan in her testimony, though she also called it an evaluation.

[00:38:39] Speaker 04:
And in any event, regardless of the title applied to that document, it's really not material, regardless of what you call it, it's just not sufficient.

[00:38:47] Speaker 02:
What about the memo at J.A.

[00:38:49] Speaker 02:
397 that he was citing?

[00:38:51] Speaker 04:
Sure, that's the July memo memorializing a conversation between Guerrero and, excuse me, Lavado.

[00:38:59] Speaker 04:
On that, the board reasonably found that the evidence was just too vague and inconclusive to establish that Mr. Lovato, one, was being disciplined for his own performance as opposed to an error made by another kitchen employee.

[00:39:17] Speaker 04:
Because that's what the statute requires, as this court has recognized, for example, in the Allied Aviation case.

[00:39:24] Speaker 04:
It has to be the putative supervisee's error

[00:39:28] Speaker 04:
for which the putative supervisor is being disciplined, not the putative supervisor's own error.

[00:39:34] Speaker 04:
And for example, the memo itself talks about his performance, and Ms.

[00:39:38] Speaker 04:
Guerrero in her testimony about the memo talks about his performance and his station

[00:39:43] Speaker 04:
referring to Mr. Lovato.

[00:39:45] Speaker 04:
And otherwise the memo, both the memo and Ms.

[00:39:48] Speaker 04:
Guerrero, as she was questioned on the standby council, had the opportunity to really flesh out what happened on this night with this quote, disorganized evening of service.

[00:39:58] Speaker 04:
And she just failed to do so.

[00:39:59] Speaker 04:
She failed to provide the kind of specific detailed evidence that the board and the courts require in order to show accountability.

[00:40:09] Speaker 02:
It seems like it goes a little bit beyond his own performance.

[00:40:13] Speaker 02:
It says it played a role.

[00:40:15] Speaker 02:
Freddie is lacking any kind of initiative to guide the team in any sort of fashion.

[00:40:22] Speaker 04:
It does say that your honor, but I would submit respectfully that it's just very vague in terms of what that really means and what happened that night.

[00:40:30] Speaker 04:
And, you know, it's just the company's burden to show by specific and detailed evidence.

[00:40:34] Speaker 04:
That's what the board and this court require.

[00:40:37] Speaker 04:
And, you know, perhaps that perhaps that could have been flushed out by Ms.

[00:40:43] Speaker 04:
Guerrero on the stand.

[00:40:44] Speaker 04:
Instead, when she was questioned and testified, she failed to do so.

[00:40:48] Speaker 04:
And so it's both inadequate in terms of establishing that it's his performance versus the performance of others.

[00:40:56] Speaker 04:
And it's also inadequate in terms of establishing an actual risk, an actual risk of non speculative risk of adverse consequences in that it's akin to the educational in services that were given to the nurses in French town.

[00:41:09] Speaker 04:
Ms.

[00:41:09] Speaker 04:
Guerrero, Mr. Rivara characterized the conversation as just a coaching or counseling for Mr. Lovato to learn.

[00:41:17] Speaker 04:
And so it's akin to the evidence in that case, which the court held insufficient.

[00:41:22] Speaker 04:
I do see I'm over my time, Your Honors, and I'm very happy to answer any and all questions the court may have for me, but I don't want to.

[00:41:28] Speaker 05:
Any other time, Judge Groner Wilkins?

[00:41:33] Speaker 04:
No.

[00:41:34] Speaker 04:
No, thank you.

[00:41:35] Speaker 05:
Okay, thank you, sir.

[00:41:36] Speaker 05:
Thank you, Mr. Mr. Delaquil, you were out of time, but you can take one minute.

[00:41:42] Speaker 01:
Thank you.

[00:41:43] Speaker 01:
First, I'd like to respond to the citation, Judge Tatel, of us making the argument.

[00:41:49] Speaker 01:
And I'd switch you to, on page 18, the first sentence of the point two in our summary of argument, NLR Breeze brief, page 58, note 10, which discusses the party's shared understanding of the relative roles of the macaroni and cheese and the fried chicken incidents.

[00:42:09] Speaker 01:
Second, I want to clarify that I intended to state that Mr. Lovato was in charge of the kitchen from roughly from eight to 1030 every day, not that he expedited for that entire time.

[00:42:23] Speaker 01:
If I misspoke I apologize.

[00:42:25] Speaker 01:
And third, I want to address briefly the responsible authority.

[00:42:32] Speaker 01:
The NLRB has made much of the inability of our witnesses to come up with an example of similar discipline, but what that really does is attempt to restrict the evidence you can use to prove responsible to direct.

[00:42:48] Speaker 01:
The folks who discipline in the Terranea kitchens are cooks.

[00:42:54] Speaker 01:
They make food.

[00:42:54] Speaker 01:
They're not lawyers.

[00:42:55] Speaker 01:
They don't make paper.

[00:42:57] Speaker 01:
But they still had noted Mr. Lovato's supervisory failures in his 2011 and 2015 performance reviews, in the May 2018 performance improvement plan, and in the July 2018 memo warning of disciplinary consequences in his leadership.

[00:43:17] Speaker 05:
And so, Mr. Delacroix, you're over your time.

[00:43:21] Speaker 05:
Just finish up quickly, please.

[00:43:24] Speaker 01:
I'll stop there, Your Honor.

[00:43:25] Speaker 01:
Thank you.

[00:43:26] Speaker 01:
Thank you.

[00:43:27] Speaker 01:
Thank you both.

[00:43:27] Speaker 05:
The case is submitted.