[00:00:02] Speaker 03:
Case number 19-1097 at L, XPO logistics freight ink petitioner versus National Labor Relations Board.

[00:00:11] Speaker 03:
Mr. Diedelberg for the petitioner, Mr. Hickson for the respondent.

[00:00:26] Speaker 01:
Good morning and may it please the court.

[00:00:27] Speaker 01:
Joshua Diedelberg appearing for XPO.

[00:00:30] Speaker 01:
I'd like to focus my presentation on why the election should be rerun even if the board is correct about the facts of the knife incident and given the deference that it typically receives in election matters.

[00:00:44] Speaker 01:
Similar to the manor case decision.

[00:00:47] Speaker 04:
Where did you make an argument below that even if the board was correct as to the knife incident that that was something done by the company's employees?

[00:00:59] Speaker 04:
the election should never last be rerun.

[00:01:03] Speaker 04:
Where did you argue that below, that even if the company was responsible for the knife incident and was in the wrong, the election should nonetheless be rerun?

[00:01:17] Speaker 01:
The objections that we raised before the board, which we noted at page 6 of our reply brief, state broadly that we're challenging

[00:01:27] Speaker 01:
the effect of the incident on the employees, we go into some detail.

[00:01:33] Speaker 04:
No, but when you reference the incident there, were you talking about the incident as in the company inflicted the incident?

[00:01:38] Speaker 04:
I did not see that argument anywhere below presented to the Board that assuming, and I saw it in your reply brief here for the first time, did not see it to the Board at all.

[00:01:52] Speaker 04:
Of course, you know things have to be argued to the Board for us.

[00:01:54] Speaker 01:
Sure.

[00:01:55] Speaker 01:
In the objections to the Board,

[00:01:57] Speaker 04:
Do you have the JA, of course?

[00:01:58] Speaker 01:
I'm sorry?

[00:01:59] Speaker 04:
Do you have a JA site for that?

[00:02:02] Speaker 01:
770.

[00:02:02] Speaker 01:
They're referenced at page 6 of our reply brief.

[00:02:05] Speaker 04:
Yeah, but I want to see them.

[00:02:13] Speaker 01:
We argue broadly that the effect of the incident and described... Which one are you talking about?

[00:02:19] Speaker 04:
Can you tell me which number?

[00:02:20] Speaker 01:
It's, I believe, 770.

[00:02:23] Speaker 04:
I'm on page 770.

[00:02:24] Speaker 04:
There's a whole bunch here.

[00:02:26] Speaker 01:
I believe it's exception 280.

[00:02:35] Speaker 04:
That's the finding or recommendation that Palencia never threatened Camarena with a knife lacks a factual foundation.

[00:02:42] Speaker 04:
I don't think that's what you're saying.

[00:02:43] Speaker 01:
Yes.

[00:02:44] Speaker 04:
That's challenging the factual foundation for finding that Palencia didn't have a knife?

[00:02:50] Speaker 01:
Well, the gist, as we explicated in our brief before the board, is that we were broadly challenging the dissemination of the incident.

[00:02:57] Speaker 04:
That's a factual argument.

[00:03:00] Speaker 04:
That's not a legal argument.

[00:03:02] Speaker 01:
Well, regardless of the source, regardless of how the incident actually played out.

[00:03:09] Speaker 04:
I mean, obviously... Because I don't mean... I'm sorry to pester you with this when you're trying to get started, but it's very important that it sounds like a legal argument.

[00:03:19] Speaker 04:
to me that if, regardless of, even if the facts broke as the ALJ and board found them and the company had falsely, or its agent, had falsely accused Mr. Placencia of the knife incident and had him arrested, which led to discussion amongst employees.

[00:03:38] Speaker 04:
So even if the company was the source of the upsetting information around election time, nonetheless, companies should be able to

[00:03:48] Speaker 04:
have a new election, even when they're the ones that caused the problem.

[00:03:53] Speaker 04:
That's a distinct legal argument I hadn't seen.

[00:03:56] Speaker 01:
Well, we would submit that the gist of the objection, and as further explicated in our briefs to the board, is that they were going to have to grapple with the effect of this incident, and we repeatedly say incident,

[00:04:13] Speaker 01:
on the employees as a result of the dissemination of the incident, you know, and in some detail.

[00:04:18] Speaker 04:
But you'd have to persuade them as a matter of policy that somehow companies should be able to cause a disruptive incident, and then when the election doesn't go the way they like it, say, ah, that incident makes it an invalid election.

[00:04:32] Speaker 04:
You can imagine the adverse incentives, perverse incentives that that would

[00:04:38] Speaker 04:
So I would have expected a, you have an argument about that specific legal question and concerns and those incentives presented to the board?

[00:04:46] Speaker 01:
Well, there's no question that the primary thrust of our argument before the board is that there was, in fact, an actual threat made.

[00:04:53] Speaker 04:
Was that the primary or the exclusive thrust?

[00:04:56] Speaker 01:
Well, again, the objection was cast broadly.

[00:04:59] Speaker 04:
Well, this objection is just a factual one, so it's not quite working for me on any legal argument.

[00:05:04] Speaker 04:
Maybe you have a different one.

[00:05:06] Speaker 04:
But you say your briefs to the board made this argument?

[00:05:10] Speaker 04:
When you say the gist, that doesn't quite work.

[00:05:12] Speaker 04:
You have to put the board on notice.

[00:05:14] Speaker 01:
Well, in other words, what we identified to the board was that they were going to have to grapple with the effect of the dissemination of the incident.

[00:05:23] Speaker 01:
some excerpts of our briefs in the appendix, and I think they're cited at page six of our reply brief.

[00:05:31] Speaker 04:
And those excerpts made this argument?

[00:05:35] Speaker 04:
Was this something you did for the first time in your reply brief?

[00:05:42] Speaker 01:
In terms of refining it or honing it, I think that's

[00:05:48] Speaker 04:
Does refining it or honing it mean now focusing on the fact that even if the company was wrong, is that the refining or honing you're talking about?

[00:05:57] Speaker 01:
Well, I mean, we would submit that the exception for purposes of 10E preservation was to get the board to grapple with what the effects of the incident were going to be.

[00:06:09] Speaker 01:
It's a fairly broad objection.

[00:06:13] Speaker 01:
Moreover, the principal finding here

[00:06:16] Speaker 04:
you know, of the board was that... So I'm looking on JA-784, and you're still, you're talking about the incident effect on voters, but you talk about it's well established that threats directed at management representatives.

[00:06:34] Speaker 04:
But of course, your argument now is assuming that there were no threats directed at management representatives.

[00:06:39] Speaker 04:
So that's, okay.

[00:06:42] Speaker 04:
maybe when you come up for rebuttal if you have something more specific, that would at least for me be helpful.

[00:06:46] Speaker 01:
Sure.

[00:06:48] Speaker 01:
The board's principal finding in the case actually was because it found that there was no actual threat, that there could be no valid objection.

[00:06:57] Speaker 01:
And that's simply contrary to their precedence and this court's precedent in

[00:07:05] Speaker 01:
Manor Care, the board's precedent, and QB Rebuilders.

[00:07:10] Speaker 01:
It's clear that the focus is on the employee's understanding of the event, not what the actual event may have been.

[00:07:17] Speaker 01:
That's the nature of dissemination.

[00:07:20] Speaker 02:
Except in Manor Care, the company wasn't the source of the distorted

[00:07:26] Speaker 01:
Gossip.

[00:07:28] Speaker 01:
That's true, Your Honor, but I think from the employee's perspective here, since they weren't witnesses to the event, there's really no difference, you know, than the situation in manner care, where again you're talking about dissemination of something that was not witnessed by the employees in question.

[00:07:43] Speaker 01:
And here you have a situation where it's clear, I mean the board has found, and the board admits at page 8 of its brief, that employees understood, based on this dissemination, that there was a threat.

[00:07:55] Speaker 01:
or at the very least that there may have been.

[00:07:57] Speaker 01:
And the record is replete with testimony that that was in fact the understanding of the employees.

[00:08:05] Speaker 02:
Right.

[00:08:05] Speaker 02:
But if we accept the findings on the knife incident, the company is the source of all of that.

[00:08:14] Speaker 01:
Yeah.

[00:08:15] Speaker 02:
Well.

[00:08:15] Speaker 02:
I mean, do you have any case, administrative or judicial, that stands for the proposition that the company can create the

[00:08:25] Speaker 02:
concern and then use it to invalidate an election?

[00:08:31] Speaker 01:
I don't, but there are actually very few cases at all in this area.

[00:08:34] Speaker 01:
The cases cited by the board are from the 80s and they stand at least in unresolved tension with what the board does say repeatedly in Westwood Horizons and the other cases that we cited such as Sewell and Al Long and the court did in Manor Care.

[00:08:52] Speaker 01:
that there is a firm line with respect to employee free choice.

[00:08:57] Speaker 01:
I mean, the board says repeatedly that it doesn't matter what the source is, you know, that it's irrelevant to what the employee's ultimate understanding is.

[00:09:07] Speaker 02:
I certainly understand.

[00:09:08] Speaker 02:
But the normal, I mean, the normal case would be one where

[00:09:14] Speaker 02:
union supporters are saying things and there's ambiguity about whether it's an illegitimate threat or legitimate advocacy and they're using this six-part test to draw that line.

[00:09:30] Speaker 02:
It just seems very different from dealing with this question of what happens when and if the company is the source.

[00:09:38] Speaker 01:
What your honor is describing is the usual case, you know, which is why

[00:09:43] Speaker 01:
I would suggest that the facts of this case are highly unusual.

[00:09:46] Speaker 01:
This is not a situation where the floodgates would be opened, you know, but simply, you know, given the board's broad policy, there has to be something of a balance.

[00:09:57] Speaker 01:
And the facts here are quite narrow.

[00:09:59] Speaker 01:
This would be a third-party case.

[00:10:01] Speaker 01:
There would have to be a general atmosphere of fear of retribution.

[00:10:05] Speaker 04:
Why would it be a third-party case if the employer instigated the gossip?

[00:10:10] Speaker 01:
Well, because what we're talking about is the dissemination of the rumors by the employees.

[00:10:14] Speaker 01:
So those would be the third party.

[00:10:17] Speaker 04:
I guess we'd have to have, if you're going to have this whole theory, you'd have to have findings on whether the company helped disseminate the story as well.

[00:10:30] Speaker 01:
Yes, although typically when you're talking about party from that perspective, it's with respect to the opposite party.

[00:10:37] Speaker 01:
And, you know, at least in terms of the board's findings here.

[00:10:40] Speaker 04:
There's typically and usually stuff, but in fact, I thought you just said in response to Judge Katz's question that you're not aware of any case, zero, that's dealt with an employer.

[00:10:52] Speaker 04:
wrongfully instigated incident that leads to concern amongst the employees.

[00:10:59] Speaker 01:
That's correct.

[00:10:59] Speaker 01:
I'm not aware of any case.

[00:11:01] Speaker 01:
It is highly unusual.

[00:11:02] Speaker 01:
Even the cases, the board had to go back to the 80s for their cases, only a couple, while the board repeatedly expresses its general principle, its bedrock principle, as you noted in Manor Care, that there's a firm line

[00:11:20] Speaker 03:
What about the blog posts and phone calls?

[00:11:24] Speaker 03:
The blog posts and phone, yes.

[00:11:26] Speaker 03:
Is there anything you can make of that?

[00:11:27] Speaker 01:
Right.

[00:11:28] Speaker 01:
Well, again, we're talking about a one-vote election.

[00:11:31] Speaker 01:
So it's hard to say what the tipping point would be in terms of course of conduct.

[00:11:39] Speaker 01:
On the blog posts, you have a situation where a Teamster agent, your outside organizer, has clearly

[00:11:49] Speaker 01:
witnessed, you know, the use and accepted the use of the Teamsters logo on this blog.

[00:11:55] Speaker 04:
The communications in this blog use terms, you know, that have a lot of... Hang on, were any of those communications on when the employee was on the blog?

[00:12:06] Speaker 04:
My understanding from the record is that the statements on the blog about what you're concerned post-dated about by a month or so

[00:12:16] Speaker 04:
or maybe even two months when the employee went on the blog.

[00:12:19] Speaker 04:
Is that accurate or inaccurate?

[00:12:21] Speaker 01:
Oh, in terms of Mr. Diaz, the outside organizer?

[00:12:26] Speaker 01:
That is accurate, Your Honor.

[00:12:27] Speaker 04:
Okay, so all he saw was a Teamsters logo on the blog for purposes of this record.

[00:12:33] Speaker 01:
Right, but our argument is that he can't just bury his head in the sand.

[00:12:37] Speaker 04:
Well, how's he buried his head in the sand if all there was was a Teamsters log and no objectionable content?

[00:12:43] Speaker 01:
Well, he is ratifying what's going to be wrong.

[00:12:46] Speaker 04:
All he can do is ratify at most.

[00:12:48] Speaker 04:
Even assuming your ratification theory is valid, the most you could ratify is what he saw.

[00:12:53] Speaker 04:
You have to know, it's a knowing, you have to have a knowledge to ratify.

[00:12:58] Speaker 04:
Do you agree with that?

[00:12:59] Speaker 04:
Well, in... Do you agree that you have to have knowledge of content to ratify it?

[00:13:06] Speaker 01:
I think the board's decision in West Bay has a broader definition or understanding of ratification.

[00:13:13] Speaker 04:
It doesn't require knowledge?

[00:13:15] Speaker 04:
You can ratify something without even knowing what it is?

[00:13:17] Speaker 01:
Well, we argue what he knows is the use of this low.

[00:13:20] Speaker 01:
He's basically throwing open the gates saying, you know, have at it.

[00:13:23] Speaker 01:
As far as we're concerned, this is sanctioned by the Teamsters.

[00:13:29] Speaker 02:
Can I ask on the blog posts?

[00:13:34] Speaker 02:
Your argument, as I understand it, is that the board, or I guess the ALJ, impermissibly considered what you call subjective evidence, which is the reaction of specific employees.

[00:13:49] Speaker 02:
That's right.

[00:13:49] Speaker 02:
What's wrong with that?

[00:13:51] Speaker 02:
It's an objective test.

[00:13:52] Speaker 02:
Everyone agrees the test is objective.

[00:13:56] Speaker 02:
But why isn't it relevant in an ambiguous situation

[00:14:02] Speaker 02:
assessing whether this is really a threat or not.

[00:14:06] Speaker 02:
Why isn't it relevant to consider whether particular employees did or did not feel threatened?

[00:14:14] Speaker 01:
Yeah.

[00:14:14] Speaker 01:
I'm sure it has some relevance, Your Honor.

[00:14:16] Speaker 01:
I mean, I think there's always conceptually, you know, sort of a difficulty in terms of the blurring of lines between, you know, what is an objective and reasonable person's standard and how one derives that.

[00:14:28] Speaker 01:
But there really isn't any

[00:14:32] Speaker 01:
solid finding in terms of objectivity with respect to these blog posts.

[00:14:39] Speaker 01:
What the board is doing here is basing its findings really exclusively on the subjective reactions.

[00:14:48] Speaker 02:
I thought they considered both.

[00:14:50] Speaker 02:
I thought she considered both.

[00:14:52] Speaker 02:
She says, she starts off by saying,

[00:14:59] Speaker 02:
Lopez thought it was a threat, but then he didn't.

[00:15:04] Speaker 02:
Robles thought it was funny, et cetera.

[00:15:06] Speaker 02:
That's all subjective.

[00:15:07] Speaker 02:
Then she goes on to say she correctly defines the governing standard as an objective one.

[00:15:14] Speaker 02:
And then she talks about a reasonable tendency to influence the outcome.

[00:15:21] Speaker 02:
The statements lacked specificity.

[00:15:24] Speaker 02:
They were merely derogatory and unkind.

[00:15:28] Speaker 02:
Seems like she's looking at both and reasonably so.

[00:15:33] Speaker 01:
It's a close question, Your Honor.

[00:15:37] Speaker 01:
I mean, I saw her focus on them being reasonable and unkind as really being derived more from the subjective reaction of those particular employees rather than the effect of a situation where you have a blog and you have

[00:15:54] Speaker 01:
people being called punk and rat, which have specific pejorative context in a labor matter, and also with respect to anonymous phone calls being made to Mr. Robles, who was referenced in the blog, that you have this entire situation and scenario whereby

[00:16:22] Speaker 01:
the overall effect of this blog is to chill employee speech and potentially to avoid those.

[00:16:28] Speaker 04:
Thank you very much.

[00:16:29] Speaker 04:
We'll hear from the government now.

[00:16:32] Speaker 01:
Thank you.

[00:16:38] Speaker 00:
Good morning, Your Honors.

[00:16:43] Speaker 00:
May it please the court, Michael Hickson for the NLRB.

[00:16:46] Speaker 00:
The board acted within its broad discretion in overruling the company's election objections here and certifying the union.

[00:16:52] Speaker 00:
And we respectfully submit the company has not met its weighty burden before this court to prove otherwise.

[00:16:59] Speaker 00:
I would go straight first to the alternative argument that the company belatedly raised before the board concerning the baseless rooms.

[00:17:06] Speaker 00:
Before the board?

[00:17:07] Speaker 00:
Excuse me, Your Honor?

[00:17:08] Speaker 00:
Before the board?

[00:17:09] Speaker 00:
Before the court.

[00:17:10] Speaker 00:
Did I say board?

[00:17:11] Speaker 00:
I'm sorry, Your Honor.

[00:17:12] Speaker 00:
Before the court.

[00:17:13] Speaker 00:
As we say in our brief, and I'd like to explain here a bit further, we think that argument is both jurisdictionally barred

[00:17:20] Speaker 00:
because the company failed to ever raise it before the board, as well as utterly meritless and unsupported.

[00:17:26] Speaker 00:
On the jurisdictional bar, section 10, of course, requires that the company first raise and affirmatively urge before the board any contention that it wishes to preserve for appellate review.

[00:17:36] Speaker 00:
The company is, frankly, just wrong in claiming, in reference to the JA sites it has at page six of its reply brief, that the company raised this argument before the board.

[00:17:48] Speaker 00:
that if the threat never happened, nonetheless, the baseless rumors themselves provided their own grounds to overturn the election.

[00:17:55] Speaker 00:
Rather, the company was absolutely consistent and unwavering in its claims before the board in asserting that this threatening conduct did actually happen.

[00:18:06] Speaker 00:
It only then asserted as an additional element of that objection or to further bolster that objection that that conduct that actually, factually occurred

[00:18:17] Speaker 00:
was then disseminated amongst the employees.

[00:18:20] Speaker 00:
And I would direct the court to appendix page 772 and 773, 774.

[00:18:26] Speaker 00:
Those are two pages that the company actually cites in their reply brief at 6, claiming that it made this contention before the board because it made claims about a, quote, incident.

[00:18:38] Speaker 00:
However, if the court looks at those very appendix pages, which the company is relying upon, they're very clear that when they say the incident, they mean the incident of the threat

[00:18:47] Speaker 00:
actually happening.

[00:18:49] Speaker 00:
For example, at page 772, the company says, this is in its brief and supportive exceptions before the board.

[00:18:56] Speaker 00:
The company says, union organizer, and this is where the company is defining its only objection concerning Mr. Placencia.

[00:19:03] Speaker 00:
It defines it as a union organizer and Agent Placencia's threatening of Camarena with a knife at ULX on October 7, which incident was widely disseminated among the employees.

[00:19:17] Speaker 00:
Similarly, at appendix page 773 to 774, the company defines the very incident which it goes on to describe in the following pages as, quote, the incident in which union organizer and agent Placencia threatened Camarena with a knife on October 7.

[00:19:34] Speaker 00:
So consistently, its contentions before the board focused on and were premised on this threatening conduct happened.

[00:19:43] Speaker 00:
It never raised the alternative argument before the board

[00:19:47] Speaker 00:
that it now brings to the court, and therefore, Section 10e precludes the court from considering it.

[00:19:52] Speaker 00:
In any event, the argument is completely baseless.

[00:19:56] Speaker 00:
The company has cited no case that stands for the general notion that an objecting party, the one who lost the election and seeks to overturn the results, can draw upon or rely upon conduct which it itself created or contributed to, to then avoid a result of the election that it does not like.

[00:20:15] Speaker 00:
This would, as Judge Millett noted, create powerful and perverse incentives for every employer, well, many employers, many unions, in many, if not all, elections to similarly plant the seed of false rumors among the electorate so that if it loses, they have something to fall back on.

[00:20:36] Speaker 00:
The company notes that this case is rare, and it is rare because parties are seldom so bold as to rely on their own conduct

[00:20:46] Speaker 00:
to try to overturn an election.

[00:20:47] Speaker 00:
However, if the court were to embrace the company's position, I would submit that this might not be so rare anymore, because parties now see, hey, we have a little insurance policy we can create for ourselves by planning these baseless rumors.

[00:21:01] Speaker 00:
I guess that I would just say that, again, while the company has not cited any case, we have cited cases that

[00:21:13] Speaker 00:
well, that stand for the proposition, again, that simply that an objecting party cannot rely on its own conduct to throw out an election.

[00:21:20] Speaker 00:
We have the United Builders case and the Baird-Powling case we cite in our brief.

[00:21:24] Speaker 00:
I'd also note that, I kind of wish I had pointed this out in my brief, that the court, although it's in a different circumstance, in the amalgamated clothing workers case, the 1984 amalgamated clothing workers case, because there are a lot of them,

[00:21:36] Speaker 00:
which we do cite in our brief, the court does identify the general concern, although in a different context, when it's discussing anonymous conduct and why it is or one of the reasons why anonymous conduct should be given little weight

[00:21:49] Speaker 00:
And the court says one of the reasons is that, quote, an unstrupulous employer could encourage anonymous pro-union incidents in order to give it grounds, dot, dot, dot, later to reverse the election result if it loses.

[00:22:03] Speaker 00:
So although it was in a different situation discussing anonymous conduct, here it's not anonymous.

[00:22:07] Speaker 00:
We know that given the credited evidence, it was, in fact, the company that created and perpetuated these false rumors.

[00:22:16] Speaker 00:
Nonetheless, the court there did recognize, I guess, the general concern.

[00:22:21] Speaker 02:
Can I take you back to the knife incident itself?

[00:22:25] Speaker 02:
Yes.

[00:22:25] Speaker 02:
So one aspect of the ALJ's reasoning was that employees who testify for the union are deemed to be inherently more credible because they're testifying against their economic interest.

[00:22:46] Speaker 02:
Doesn't that seem like it's really loading the dice, particularly with regard to, in this case, employees who were known to be union organizers?

[00:23:02] Speaker 00:
I don't think so, Your Honor.

[00:23:03] Speaker 00:
I guess my first response to your question would be that the judge's credibility analysis was incredibly thorough, detailed, and the point that Your Honor is making while relied upon the judge

[00:23:16] Speaker 00:
Properly, appropriately, we assert.

[00:23:18] Speaker 00:
Nonetheless, that was just one facet of a very detailed analysis.

[00:23:22] Speaker 02:
So let's put aside, just for a second, put aside any question whether that was harmless error.

[00:23:28] Speaker 02:
Let's just talk about whether this was defensible.

[00:23:34] Speaker 02:
There's a dispute here.

[00:23:37] Speaker 02:
There are workers allied and known to be allied with the union who testify.

[00:23:46] Speaker 02:
in favor of Placentia's version of events.

[00:23:51] Speaker 02:
And there's at least one worker who's allied with management who testifies to the other version of events.

[00:24:03] Speaker 02:
And the judge says, oh, well, these people union side are testifying for the union and therefore they're more credible.

[00:24:11] Speaker 02:
That strand of the reasoning seems to me pretty hard to defend.

[00:24:16] Speaker 00:
Well, Your Honor, I think, I mean, it is an established principle both in board law and court decisions.

[00:24:22] Speaker 00:
I know we cited at least one Seventh Circuit case in our brief that does uphold that principle.

[00:24:29] Speaker 00:
And the company has not challenged that principle and has not cited any case board, court, otherwise.

[00:24:37] Speaker 00:
that suggests that that principle is inappropriate or that suggests that that principle cannot be applied in the circumstance of employees who are union advocates or activists.

[00:24:52] Speaker 00:
And the fact remains that these employees continue to rely on their employer for their livelihood.

[00:25:02] Speaker 00:
And so by standing up.

[00:25:04] Speaker 02:
And yet they've chosen to.

[00:25:07] Speaker 02:
advocate very publicly within the company for the union.

[00:25:11] Speaker 02:
That's true.

[00:25:12] Speaker 02:
They've, for whatever reason, calculated that their interest lies in supporting the union.

[00:25:18] Speaker 00:
Nonetheless... And that's fine, but why don't we just... Well, nonetheless, Your Honor, they reasonably may perceive that they may draw additional ire from the employer by further countering the employer's interest by standing up in a hearing

[00:25:34] Speaker 00:
and testifying contrary to their employer's position who controls their paycheck.

[00:25:39] Speaker 04:
I thought that ALJ had even gone out of her way to say that as to Plasencia, she acknowledged he looked at things through a pro-union lens.

[00:25:48] Speaker 04:
That's true.

[00:25:49] Speaker 04:
And so she took that into account.

[00:25:51] Speaker 00:
That's true.

[00:25:52] Speaker 00:
Reversed him.

[00:25:53] Speaker 00:
That's true, Your Honor.

[00:25:54] Speaker 00:
As to Mr. Plasencia, she did specifically acknowledge that, again, that the credibility analysis was very, very unusually detailed

[00:26:04] Speaker 00:
to be frank, and relied on demeanor, inherent probability, consistency, corroboration, contradictions between management's witnesses, a whole host of factors.

[00:26:18] Speaker 00:
Let's see, about the blog posts, I guess I would turn to those briefly.

[00:26:22] Speaker 00:
The board recently found these anonymous online statements over which the union had no control

[00:26:30] Speaker 00:
did not form a basis to overturn the election.

[00:26:33] Speaker 00:
The company, I would note, has cited no case where statements in any way similar to the statements that appeared on this blog have been held sufficient to throw out an election.

[00:26:44] Speaker 00:
And that's under any standard.

[00:26:46] Speaker 00:
Under the third party standard, under the party standard, the company has not cited any case where statements that look like something like these have been enough to overturn an election.

[00:26:57] Speaker 00:
The statements really, in large part, were nothing more than

[00:27:00] Speaker 00:
general kind of insults, name calling, mean comments.

[00:27:05] Speaker 00:
And you don't overturn an election based on mean comments.

[00:27:09] Speaker 00:
I'm over my time, Your Honor, so.

[00:27:11] Speaker 02:
Just one question on that.

[00:27:13] Speaker 02:
On the subjective evidence point, your main argument in the brief was that the ALJ did not consider subjective evidence.

[00:27:23] Speaker 02:
Seems to me wrong, but would you

[00:27:29] Speaker 02:
Would you be disappointed to win your case on the ground that she did consider subjective evidence but only as relevant to the objective question of whether these comments objectively measured amounted to threats?

[00:27:50] Speaker 00:
I would not be disappointed, Your Honor.

[00:27:52] Speaker 00:
It is our position that the judge did not actually rely on the testimony about the subjective reactions, but it is nonetheless true that both the board and courts have at times said, yeah, it's an objective standard.

[00:28:05] Speaker 00:
We're going to analyze it under the objective standard, but then have made reference to testimony.

[00:28:10] Speaker 02:
Like in Mannert here?

[00:28:12] Speaker 00:
I believe so, yes, Your Honor.

[00:28:13] Speaker 00:
Then have made reference to evidence of employees' subjective reactions

[00:28:18] Speaker 00:
and taking that into account or instead of that bolsters or confirms, I guess, the conclusion about the objective conclusion.

[00:28:29] Speaker 04:
I thought the point of the objective test was that if people are engaged in objectively unreasonable or harmful or you're threatening behavior, they don't get off the hook if they can point to some employees who are particularly hearty and say they're unaffected.

[00:28:47] Speaker 00:
Well, that's true, Your Honor.

[00:28:49] Speaker 00:
That's true.

[00:28:50] Speaker 04:
And here, given... But otherwise, in these types of tests, objective tests, I'm not aware of any context in which actual evidence of how people responded is not a relevant consideration in applying... I mean, obviously not the only thing you consider, but a relevant consideration in determining what's objectively reasonable or what's an objective tendency.

[00:29:15] Speaker ?:
Yes.

[00:29:15] Speaker 00:
I understand.

[00:29:17] Speaker 00:
I agree, Your Honor.

[00:29:18] Speaker 00:
And I guess that here I would note that given that the blog posts and the phone calls were appropriately analyzed under the third party standard, the company's burden is extremely high in that it was required to prove that objectively, objectively the statements and these silent phone calls in which nothing was said, and we don't even know who made them or if they had anything to do with the election, that objectively this conduct was so aggravated as to create a general atmosphere

[00:29:44] Speaker 00:
of fear and reprisal rendering a free election impossible.

[00:29:47] Speaker 00:
And we, again, just submit that the company has not come close to meeting that burden.

[00:29:52] Speaker 00:
I'm happy to answer any additional questions.

[00:29:54] Speaker 00:
If not, the board respectfully requests that the court enforce the board's order in full.

[00:29:58] Speaker 04:
Thank you very much.

[00:30:02] Speaker 04:
Did Mr. Diedelberg have any time left?

[00:30:13] Speaker 01:
Just very briefly, as the Court says in Manor Care, the Board has drawn a firm line that the touchstone of an election is vindicating employee-free choice.

[00:30:27] Speaker 01:
Elections are ultimately about the employees, not the parties.

[00:30:33] Speaker 01:
Although, curiously, in the Board's rules, parties such as unaligned employees actually don't have an ability to file objections to an election.

[00:30:42] Speaker 01:
I just want to impress upon the court how narrow and how unusual the facts of this case are and why it would not open the floodgates, as the general counsel suggests, to employers or unions benefiting from wrongful conduct.

[00:30:58] Speaker 01:
Again, the standard here is the third-party standard when one is talking about the dissemination of rumors.

[00:31:04] Speaker 01:
And the third-party standard is extremely difficult to satisfy.

[00:31:08] Speaker 01:
It has been satisfied in this case because

[00:31:12] Speaker 01:
One is talking about hallmark threats of violence directed by if, you know, either... What's the threat of violence?

[00:31:20] Speaker 01:
Well, Mr. Placencia's, the employees, and again, the board does not dispute this, understood that Mr. Placencia, who at a minimum was a member of the union's organizing committee and potentially an agent of the union, threatened the primary spokesperson

[00:31:37] Speaker 01:
for the employer, you know, with respect to labor issues, an incident that so disturbed the employees that it was widely disseminated, again, per the board's finding, up through the entire election.

[00:31:50] Speaker 02:
I'm sorry, so you're on the dissemination point?

[00:31:52] Speaker 01:
I'm sorry?

[00:31:52] Speaker 02:
This is the dissemination point?

[00:31:54] Speaker 01:
Yes, Your Honor.

[00:31:56] Speaker 01:
Got it.

[00:31:56] Speaker 01:
So you have, you know, dissemination of a threat of violence in a one-vote election in a situation where

[00:32:03] Speaker 01:
A hearing was held, you know, with respect, so at least there was a finding that the objection had prima facie validity.

[00:32:12] Speaker 01:
And this was not an incident made up out of whole cloth, but one in which there was, in fact, an incident.

[00:32:19] Speaker 04:
All right.

[00:32:20] Speaker 04:
Thank you very much.

[00:32:20] Speaker 04:
Thank you, Your Honor.

[00:32:21] Speaker 04:
The case is submitted.

[00:32:22] Speaker 04:
Thank you.