[00:00:00] Speaker 01: Case number 20-1027, United Food and Commercial Workers Union, Local 400 Petitioner, versus National Labor Relations Board. [00:00:09] Speaker 01: Ms. [00:00:10] Speaker 01: Juret for the petitioner, Ms. [00:00:11] Speaker 01: Rajat Bhatsa for the respondent. [00:00:14] Speaker 02: Good morning, Council. [00:00:15] Speaker 02: Ms. [00:00:16] Speaker 02: Juret, please proceed when you're ready. [00:00:19] Speaker 05: Thank you. [00:00:20] Speaker 05: Good morning, your honors, and may it please the court. [00:00:22] Speaker 05: Amanda Jarrett on behalf of Petitioner United Food and Commercial Workers Local 400. [00:00:27] Speaker 05: In this case, the National Labor Relations Board overlooked critical evidence demonstrating that the employer excluded a union organizer from its premises in a manner that singled out the union's protected message for disfavored treatment and thereby violated the National Labor Relations Act. [00:00:44] Speaker 05: In April 2015 a union organizer access the parking lot of Kroger store 538 where local 400 had long represented store employees. [00:00:54] Speaker 05: The organizer sought to urge customers to support union members who are seeking the opportunity to transfer to two nearby Kroger locations. [00:01:02] Speaker 05: because store 538 was closing. [00:01:05] Speaker 05: While Kroger's lease with the shopping center where store 538 was located contained a no solicitation, no loitering rule, Kroger had in the past tolerated a range of solicitation and distribution on its premises. [00:01:17] Speaker 05: In this case, however, Kroger chose to exclude the union organizer from its premises, and it did so in an unprecedented fashion. [00:01:25] Speaker 05: Kroger invoked a March 2014 letter from its landlord, which it had never used before. [00:01:30] Speaker 05: That letter issued on another occasion when the union planned to access the parking lot. [00:01:35] Speaker 05: to disseminate a message protected by Section 7 of the Act. [00:01:39] Speaker 05: That letter empowered Kroger to have the police respond to protesting and disruptive activities, explicitly including those involving a labor union. [00:01:48] Speaker 05: Although the administrative law judge found the March 2014 letter relevant to the complaint allegation that Kroger selectively and desperately enforced access restrictions in a manner that interfered with Section 7 activity, the board looked past this straightforward evidence of unlawful discrimination. [00:02:04] Speaker 02: Can I ask you a question at the outset, which is that the way the board conceived of these arguments is that there's two separate claims that could be raised. [00:02:16] Speaker 02: One has to do with Sandusky Mall and the board's decision to revisit that line of decisions and come forward with a new rubric. [00:02:25] Speaker 02: And then the other is the motive-based claim that it sounds like you're focused on here and your briefing is focused on. [00:02:30] Speaker 02: And as to the latter one, first of all, it seems to me that you agree in your briefing that those are distinct ways of looking at the scenario. [00:02:39] Speaker 02: There's a question raised about whether the motive-based claim is properly before us because it wasn't raised by you before the board, and there was no motion for reconsideration filed on that ground. [00:02:51] Speaker 02: And so under 160E, the board has argued that that's not properly before us. [00:02:59] Speaker 02: Can you address that? [00:03:00] Speaker 05: Yes, so the union's position is that the complaint alleges that Kroger by selectively and desperately applying access restrictions interfered with Section seven rights and the union at all points during this litigation and the general counsel at all points during this litigation. [00:03:16] Speaker 05: found this 2014 letter that we identify in our briefing in which I was just referencing in my opening remarks. [00:03:23] Speaker 05: This letter was relevant to the question of whether Kroger selectively and desperately applied access restrictions because of the circumstances surrounding its issuance, its wording, and its history of not being enforced. [00:03:35] Speaker 05: The union was not required to file a motion for reconsideration because the relevance of that letter was urged both before the administrative law judge and the board. [00:03:44] Speaker 05: The board had adequate notice of the argument that the union is now advancing on review and rejected it, finding instead that the letter would only potentially be relevant to an allegation of an unlawful promulgation, which is not. [00:03:59] Speaker 05: something that was raised in this case. [00:04:01] Speaker 02: But as I read our decisions, we have this is an HTA corporation versus NLRB. [00:04:06] Speaker 02: And the language of that decision says, a party may not rely on arguments raised in a dissent or on a discussion of the relevant issues by the majority to overcome the section 10 E bar. [00:04:16] Speaker 02: The act requires the party to raise its challenges itself. [00:04:21] Speaker 02: So the fact that it was before the board in the sense that the board addressed it, the dissent discussed the argument in some [00:04:28] Speaker 02: And then the majority engaged at least in footnotes, and then decided not to treat with it. [00:04:34] Speaker 02: That it's from the language in HTH it's not enough that the board had the argument before it in that sense, it requires that the party raise the challenges itself. [00:04:46] Speaker 05: So the union's position is that much like in this court's decision in the American postal workers case, there was both discussion in the underlying administrative law judge decision and in the briefs before the board that was in both the general counsel's brief on cross exception and in the union's brief that this letter was raised and it was relevant to the question of whether there was a selective and disparate [00:05:12] Speaker 05: application of the access restriction. [00:05:14] Speaker 05: And so it wasn't simply that the dissent raised the issue and it wasn't present in the case before. [00:05:20] Speaker 05: The board also opens itself, I think, to this issue by the fifth footnote of the decision in order discussing the fact that [00:05:31] Speaker 05: In a case like this, where there is some indication that the purpose of Section 7 activity and the union's message itself is potentially relevant, even under the standard the board announces. [00:05:45] Speaker 05: So I think overlooking the evidence that the union raises in this appeal is a real problem. [00:05:50] Speaker 02: But the fact that the evidence, and one more question along these lines, the fact that the evidence, the letter might be relevant to something doesn't mean that the argument was raised. [00:06:00] Speaker 02: I mean, it's true that you can use evidence in service of many different propositions. [00:06:05] Speaker 02: But the question, it seems like under our decisions is whether the challenging party now put forward that argument before the board. [00:06:14] Speaker 02: And it doesn't seem to me that you dispute that the Union didn't put forward that argument. [00:06:18] Speaker 02: Your position is, and I understand it, your position is that, well, [00:06:21] Speaker 02: Regardless, we're relying on evidence that all of us thought was relevant and the argument was before the board. [00:06:27] Speaker 02: But I take it you don't dispute the proposition that the union didn't put forward that argument for the board. [00:06:32] Speaker 05: I mean, the union referred to the letter both in its, you know, brief before the board and the general counsel certainly in its brief on cross exception raised the point. [00:06:43] Speaker 02: But referring to the just referring to the letter. [00:06:46] Speaker 02: doesn't mean making the argument about motive. [00:06:49] Speaker 02: There's the other argument that was made and as to which the letter might be relevant too. [00:06:54] Speaker 02: But it didn't seem like in your briefing or today, and I'm not saying you necessarily lose because of this, I just want to understand the position that you're taking, that you're not saying that we're okay because we in fact did make the argument, you're saying we're okay because the argument was before the board. [00:07:08] Speaker 05: Correct. [00:07:08] Speaker 05: And I think the unions, you know, view is that the American postal workers decision that I referred to is a very similar type of procedural posture that this case is in. [00:07:18] Speaker 05: And I also just want to, you know, sort of take this chance to recast a little bit, something that I think the board [00:07:24] Speaker 05: says in its brief that the union challenges, which is this implication that there are somehow two analytically distinct types of discrimination cases. [00:07:32] Speaker 05: And I think the union's view is that that's mistaken. [00:07:35] Speaker 05: There's only one kind of discrimination case. [00:07:38] Speaker 05: And this evidence was relevant to the complaint allegation. [00:07:42] Speaker 05: And, you know, we only need to get into the kind of analysis the board did here, where we compare all the history as in the Sandusky-Mo line of cases [00:07:53] Speaker 05: when we don't have the kind of evidence of discriminatory motive that's present in this case. [00:07:59] Speaker 05: This is really that kind of rare, easy case where we have a much clearer story of discrimination. [00:08:04] Speaker 05: And for that reason, you know, even accepting that the letter was one of several factors that was discussed at earlier phases of this case, it's a very important one and the board should have at least treated with it. [00:08:21] Speaker 05: Just to sort of return to that point a little bit, you know, the union's view is that this March 2014 letter's wording, the circumstances of its issuance and its unprecedented use to exclude the union organizer had to be relevant to the board's discrimination analysis. [00:08:37] Speaker 05: In most cases, it's difficult to ascertain whether an employer's decision to treat union organizers differently is rooted in animus. [00:08:44] Speaker 05: And that's why the board typically engages in a more searching, more searching type of inquiry. [00:08:50] Speaker 05: But whereas here we have evidence that very clearly indicates animus, that ends the inquiry. [00:08:56] Speaker 03: What is the evidence? [00:08:58] Speaker 03: The evidence is what? [00:09:00] Speaker 03: One line by the former employee who said that he believed that the letter was prompted by a desire to keep the union organizers out of the property. [00:09:13] Speaker 03: Is that it? [00:09:14] Speaker 05: I think that's one important piece of evidence. [00:09:16] Speaker 03: What was the basis for his belief? [00:09:20] Speaker 05: Because he was a store manager at the time and knew about the union's plan to engage in a similar type of solicitation that occurred in this case and that that was the response to. [00:09:31] Speaker 03: But he didn't say he knew, he said he built, you know, [00:09:37] Speaker 03: He just said he believed and there's one line and that's it. [00:09:41] Speaker 03: You talk about overwhelming evidence. [00:09:43] Speaker 03: I hardly think that's even substantial evidence. [00:09:47] Speaker 05: With respect, I think it's important to note that it's uncontradicted evidence and there was no effort to try and articulate any other justification on crowbar. [00:09:57] Speaker 03: Why bother contradicting it when the general counsel wasn't even arguing that motivation was the [00:10:06] Speaker 03: He said there was only one issue, and that was disparate treatment. [00:10:11] Speaker 05: Again, I think this question about whether there's one issue or two is an important one for the union. [00:10:17] Speaker 05: And our view is that in fact, this complaint allegation, which is selective and disparate enforcement, the question of why the employer selectively and disparately [00:10:28] Speaker 05: enforce an access restriction is relevant. [00:10:31] Speaker 05: And, you know, under the 10th Circuit's decision in the 4B case and other decisions like that, the board has to take that into consideration because [00:10:41] Speaker 05: what section 8A1 of the act prohibits is interfering with protected activity and with singling out the union's message for disparate treatment. [00:10:49] Speaker 05: So it's not just that one line of testimony that we're talking about. [00:10:52] Speaker 05: It's also the wording of the letter. [00:10:53] Speaker 05: It singles out unions explicitly. [00:10:56] Speaker 05: It doesn't cast its prohibitions in general terms. [00:10:59] Speaker 05: And it talks about protesting and disruptive activities. [00:11:02] Speaker 05: There's no indication of any other groups that tried to access the property for those reasons. [00:11:07] Speaker 05: I see I'm at time, but I'm happy to answer more questions. [00:11:11] Speaker 02: My colleagues don't have any further questions for you now. [00:11:12] Speaker 02: We'll hear from the board and we'll give you a little bit of time for rebuttal. [00:11:16] Speaker 00: Thanks. [00:11:17] Speaker 02: Ms. [00:11:17] Speaker 02: Rajapaksa. [00:11:18] Speaker 00: Thank you, your honor. [00:11:19] Speaker 00: May it please the court. [00:11:20] Speaker 00: My name is Milaxmi Rajapaksa and I'm counsel for the National Labor Relations Board. [00:11:26] Speaker 00: The board resolved a single issue in this case, which was whether Kroger discriminated within the meaning of Babcock. [00:11:35] Speaker 00: by allowing non-employee charitable and civic organizations to solicit on its least premises, while denying access to a non-employee union representative who sought to encourage a boycott of Kroger stores. [00:11:49] Speaker 00: The board resolved this issue in favor of Kroger. [00:11:52] Speaker 00: And after reconsidering and revising its understanding of what it means to discriminate by allowing other distribution in the language of Babcock, [00:12:02] Speaker 00: the board dismissed the complaint. [00:12:06] Speaker 00: In the present appeal, as I understand it, the union does not challenge the board's revised understanding of Babcock and what it means to discriminate by allowing other distribution. [00:12:17] Speaker 00: Instead, the union claims that the board could have withheld judgment on the issue of disparate treatment that was specifically litigated and could have instead found a violation on a different ground. [00:12:30] Speaker 00: that Kroger allegedly acted with anti-union animus. [00:12:34] Speaker 00: And the problem with this argument is sort of twofold in terms of procedure. [00:12:40] Speaker 00: The general counsel in the litigation below never suggested that there were two independent grounds for finding unfair labor practice in this case. [00:12:49] Speaker 00: The general counsel at all times argued that Kroger engaged in disparate treatment under Sandusky Mall, which was a case interpreting Babcock. [00:13:00] Speaker 00: And so to the extent that the union is now proposing a different path to find a violation, it is literally adding to the general counsel's theory of the case, which is something it cannot do under section 3D of the act. [00:13:14] Speaker 00: The further procedural problem for the union is that it never raised this alternative path to a violation before the board. [00:13:24] Speaker 00: And it certainly could have done that [00:13:26] Speaker 00: after the board's decision issued and it became clear that the board viewed this as a disparate, as a pure disparate treatment case under Bangkok. [00:13:33] Speaker 00: That was the moment when the union could have and should have told the board, no, you've misconceived the issue of discrimination before you. [00:13:42] Speaker 00: It encompasses, as Ms. [00:13:43] Speaker 00: Jarrett has said, more than simply disparate treatment. [00:13:47] Speaker 00: That was the moment for the union to raise that issue. [00:13:50] Speaker 00: And I do have to disagree with the union [00:13:53] Speaker 00: that this argument was before the board on exceptions. [00:13:58] Speaker 00: It was not. [00:13:59] Speaker 00: If you look at the briefing before the board, you'll see there was no separate analytical path outside of disparate treatment that was presented to the board. [00:14:08] Speaker 00: So there may be evidence that was raised in the litigation before the board, but the evidence was used for a different purpose. [00:14:19] Speaker 00: And so for both of those reasons, I would say that the court should not reach the union's argument. [00:14:25] Speaker 00: If it does reach the merits of the argument though, I think- Can I just ask one, before you get to the merits, just one question on the procedural arguments you've raised. [00:14:33] Speaker 02: So suppose that the, suppose, and I know you'll disagree with this premise, but I'm just interested in exploring it. [00:14:40] Speaker 02: Suppose that we think that the general counsel at least [00:14:44] Speaker 02: put forward this strand of the argument, the motive strand of the argument. [00:14:49] Speaker 02: At least it was sufficiently within the rubric of what the general counsel was urging, but the union never did. [00:14:55] Speaker 02: And then the board and its decision, the dissent of course addressed the issue. [00:15:01] Speaker 02: And then the majority responds and says, A, that issue is not properly before us. [00:15:06] Speaker 02: And B, even if it were, we would disagree on the merits. [00:15:09] Speaker 02: That's what they say in footnote 23, I think. [00:15:11] Speaker 02: If that's the scenario, then do you think that the union is out of luck procedurally because they didn't file a motion for reconsideration? [00:15:20] Speaker 02: Or do you think the fact that, by hypothesis, the general counsel put the argument before the board is enough? [00:15:28] Speaker 00: I think the requirement of Section 10E is that the union, the party, has to urge the objection before the board. [00:15:35] Speaker 00: So technically speaking, the union cannot rest on the idea that it was vaguely [00:15:41] Speaker 00: before the board or that another party had raised it. [00:15:45] Speaker 00: The board's position would be that the union itself had to raise the argument before the board. [00:15:51] Speaker 03: How do you get that out of 168? [00:15:52] Speaker 03: It's written in the passive as if it doesn't matter who makes the objection as long as the objection has been made. [00:16:01] Speaker 03: So why does it have to be the union? [00:16:02] Speaker 03: Why can't it be the general counsel? [00:16:06] Speaker 00: Well, Your Honor, I mean, I [00:16:09] Speaker 00: disagree that 160E clarifies this, but I think- No objection that has not been urged before the board, et cetera, shall be considered by the court. [00:16:26] Speaker 03: Well, that doesn't say who has to raise the objection. [00:16:32] Speaker 00: Right. [00:16:32] Speaker 00: I believe the cases show that there is an affirmative obligation on the party advancing the argument to [00:16:39] Speaker 00: to affirmatively urge its argument before the board. [00:16:43] Speaker 00: But even if somehow the general counsel had raised this, which again, the general counsel did not, there still is a question about whether this is an argument that was fully litigated before the board. [00:17:03] Speaker 00: I mean, there may be some vague way for the union to say that, [00:17:08] Speaker 00: the general counsel raised to this, but there is still a question about whether it was fully and fairly litigated as an alternative theory. [00:17:16] Speaker 00: And the board believes that it wasn't. [00:17:18] Speaker 00: In terms of the substance of the union's animus argument, the letter on which the union relies was issued by Kroger's landlord. [00:17:28] Speaker 00: And there is simply no basis in the record to attribute the letter or any animus that may lay behind the letter to Kroger. [00:17:37] Speaker 00: In addition, the letter on its face, contrary to what the union says, did not discriminate or single out unions for different treatment. [00:17:45] Speaker 00: It said that any picketing, demonstrating, and related disruptive activities on the premises would be prohibited whether or not involving a labor union. [00:17:57] Speaker 00: And finally, Kroger's use of the letter doesn't suggest anti-union animus. [00:18:03] Speaker 00: because Kroger used the letter in a circumstance where it was presented with protest activity that fell squarely within the ambit of the letter. [00:18:12] Speaker 00: And there's no surrounding circumstance that would suggest that Kroger's use of the letter was motivated by animus. [00:18:21] Speaker 00: Kroger had never permitted anything on its property like this boycott activity that the union was attempting to conduct. [00:18:29] Speaker 00: And so for all of these reasons, the board believes that [00:18:33] Speaker 00: the court should not address the union's legal argument about motive because it was never presented to the board in the first instance. [00:18:42] Speaker 00: But even if the court were to reach the argument, it should find an agreement with the board in its brief that there is no evidence of anti-union animus that would compel the board to find merit in the general counsel's complaint. [00:18:57] Speaker 02: So is your position on the merits that there's no evidence of anti-union animus or [00:19:02] Speaker 02: that there's no evidence at all because there is the testimony that the ALJ credited about the origination of the policy, right? [00:19:14] Speaker 00: Right, there is testimony in the record from one manager about his belief that the letter issued in response to union activity on the premises, but there's no detail as far as the basis for that belief [00:19:30] Speaker 00: or any reason to think that Kroger was involved in the genesis or issuance of that letter. [00:19:39] Speaker 00: That manager literally presented one sentence of testimony on this letter, and it was very vague. [00:19:45] Speaker 00: So certainly, although there may be evidence that one could cobble together from this record that might suggest animus, [00:19:53] Speaker 00: It is certainly not evidence that would compel a finding of animus, which is what the union is suggesting. [00:20:01] Speaker 00: The board did actually address much of this evidence in the course of its response to the dissent. [00:20:08] Speaker 00: And its discussion really shows that there is no reasonable basis on this record to conclude that Croer acted based on anti-union animus. [00:20:20] Speaker 02: You're talking about the discussion in footnote 23? [00:20:23] Speaker 00: Yes. [00:20:23] Speaker 04: Yes. [00:20:25] Speaker 04: Can I ask a question, and that is, is it in the record whether this letter went to the other tenants? [00:20:32] Speaker 00: I don't believe that's in the record, Your Honor. [00:20:37] Speaker 04: Is it in the record that there are other tenants? [00:20:40] Speaker 00: Yes, that is in the record. [00:20:42] Speaker 00: Yes, there are several other tenants of this shopping center. [00:20:46] Speaker 00: If the court has no further questions for me, I would respectfully request that the [00:20:53] Speaker 00: court deny the union's petition for review. [00:20:55] Speaker 00: Thank you. [00:20:57] Speaker 02: Thank you, Ms. [00:20:57] Speaker 02: Rajapaksa. [00:20:59] Speaker 02: Ms. [00:20:59] Speaker 02: Jarrett, we'll give you two minutes for rebuttal. [00:21:02] Speaker 05: Thank you, Your Honor. [00:21:04] Speaker 05: The board's effort to articulate two analytically distinct theories of discrimination is erroneous, and this has an effect on both the procedural and substantive arguments in the case. [00:21:12] Speaker 05: In the union's view, this case turns on the board's failure to take account of evidence showing that Croker's decision to exclude the union from its property [00:21:21] Speaker 05: Far from being a neutral act taken pursuant to generally applicable access restrictions was instead an effort to suppress the union's message and thereby interfere with activities protected by Section 7 of the National Labor Relations Act. [00:21:35] Speaker 05: In the union's view, the essence of Section 8A1 violation is to treat the union differently and based on long-standing precedent [00:21:43] Speaker 05: When a property owner like Kroger does something inconsistent with its practice and as it did in this case, invokes a letter which by its terms on its face singles out the union for different treatment and which has never been invoked against any other of the many non-employee groups that sought to access the property to engage in similar activities. [00:22:06] Speaker 05: that constitutes discrimination under Babcock and still spinning in the earlier line of NLRB cases that form the basis of the discrimination exception. [00:22:18] Speaker 05: Because the board's decision to overlook this evidence, which was properly before it and which taken together shows that what appeared perhaps to be a neutral property restriction was in fact a vehicle designed to empower Kroger to target the union [00:22:33] Speaker 05: and to take action against it that it had never taken against any other groups, the board should have dealt with that evidence. [00:22:40] Speaker 05: Now, the union's position is not that this court can find on the basis of this alone that the board's decision was wrong. [00:22:49] Speaker 05: This court should remand the matter to the board so that it, in the first instance, can weigh the significance of the letter, the circumstances surrounding its issuance, and the history of its selective enforcement, because it's that evidence which the union believes is essential to [00:23:02] Speaker 05: whether the complaint allegation stands or falls. [00:23:06] Speaker 02: Thank you, counsel. [00:23:07] Speaker 02: Thank you to both counsel. [00:23:08] Speaker 02: We'll take this case under submission.