[00:00:00] Speaker 00: Case number 20-1112 Edel, Communications Workers of America AFL-CIO petitioner versus National Labor Relations Board. [00:00:09] Speaker 00: Mr. Ginsburg for the petitioner, Mr. White for the respondents, Mr. Theodore for the intervener. [00:00:16] Speaker 00: Good morning. [00:00:17] Speaker 02: Good morning. [00:00:20] Speaker 04: Please proceed. [00:00:21] Speaker 02: Thank you. [00:00:22] Speaker 02: Good morning, and may it please the court, Matthew Ginsburg, on behalf of the Petitioner Communications Workers of America. [00:00:29] Speaker 02: Your honors, T-Mobile told employee Chelsea Beffert that it was reprimanding her for sending an email to her coworkers because that email concerned the union. [00:00:40] Speaker 02: That alone constituted a violation of the NLRA. [00:00:44] Speaker 02: In addition to this direct evidence, the circumstances also strongly suggest that T-Mobile discriminated against Beffert because of the union content of her message. [00:00:54] Speaker 02: T-Mobile routinely permitted other employees to send email invitations to personal events like birthday parties and baby showers. [00:01:02] Speaker 02: Only Beffert's invitation to a weekend social event at a bowling alley was singled out for censure. [00:01:08] Speaker 02: And that was because T-Mobile perceived the event as a union meeting. [00:01:12] Speaker 02: The company's after the fact explanations for its actions are wholly implausible and strongly suggest pretext. [00:01:18] Speaker 02: T-Mobile acknowledged it had never previously applied any of the policies it invoked as reasons for reprimanding Beffert. [00:01:25] Speaker 02: And T-Mobile's characterization of Beffert's email as quote unquote junk mail highlights the fact that the company targeted Beffert's email because it disagreed with her message. [00:01:36] Speaker 02: The board's dismissal of the discrimination claim in the face of all this evidence was based on a fundamental legal error. [00:01:43] Speaker 02: The board held that the general counsel failed to meet its burden of showing that T-Mobile quote, permitted employees to send mass emails for their personal benefit or quote, to further any organizational purpose. [00:01:55] Speaker 02: But T-Mobile did not prohibit emails on either ground and did not justify its action on either basis. [00:02:01] Speaker 04: So help me understand [00:02:07] Speaker 04: I think I understood the board to say, because we adopted a new standard in the middle of this case, we're going to apply that standard because we've held that that standard applies retroactively to any case that's pending. [00:02:31] Speaker 04: And the union never challenged that before the board. [00:02:38] Speaker 04: And therefore, as it were, arguably, it's stuck with that rule that applies retroactively. [00:02:48] Speaker 04: So the board says applying that rule, the general counsel failed to meet his burden to show that the employer discriminatorily applied its policies. [00:03:04] Speaker 04: Why is that? [00:03:08] Speaker 04: either legal error or factual error by the board. [00:03:14] Speaker 02: So your honor, with respect, I do not think that's actually the board's argument. [00:03:23] Speaker 02: I believe that the board's argument is that the board applied the register guard standard. [00:03:30] Speaker 04: Well, let me put it this way. [00:03:32] Speaker 04: I'm reading the board's decision, and I'm looking at what it said. [00:03:37] Speaker 04: And that's what my question is based on. [00:03:42] Speaker 02: Right. [00:03:42] Speaker 02: OK. [00:03:42] Speaker 02: So as we explained in the reply brief, and in fact, as the employer said as well, the discrimination standard has not changed from Register Guard to Purple Communications to the current board decision of Caesars Entertainment. [00:04:02] Speaker 04: So that's a legal error by the board in how it interprets its precedent? [00:04:09] Speaker 02: If the board says that it's changed its precedent in the, I just, with all respect, I don't see in the board's decision anywhere where it says it's changed its discrimination rule. [00:04:24] Speaker 04: Well, maybe I need to characterize it, but it said we have overruled Purple Communications. [00:04:31] Speaker 04: And in Caesars Entertainment, we adopted this rule. [00:04:36] Speaker 04: And you cannot discriminate, basically it says. [00:04:39] Speaker 04: As far as section seven is concerned, unless you can show that the employer allowed something that was of the same character and now it's disallowing it. [00:04:55] Speaker 02: Yes, and and so that I agree that is the board's legal test, I guess, the only point of disagreement with the interpretation that that we're having is that I believe that legal test is clear in register guard and that the board just readopted it both both in purple communications which dealt with. [00:05:15] Speaker 02: with email more generally, and then in Caesar's entertainment, which flipped back to Register Guard. [00:05:21] Speaker 02: But the through line through those cases is the discrimination standard, which hasn't changed. [00:05:28] Speaker 02: And I don't think the board in its decision was suggesting it had changed. [00:05:32] Speaker 02: What we're quarreling with is that we think the board has misstated what that standard is going all the way back to Register Guard. [00:05:39] Speaker 04: In some extent, although what- On page 14, let me just- Sure. [00:05:45] Speaker 04: Sorry, Judge Cohen. [00:05:48] Speaker 04: So when the board says, in other words, unlawful discrimination consists of disparate treatment of activities or communications of a similar character because of their union or other section seven protected status, you would agree that that's the standard under board precedent? [00:06:05] Speaker 02: Yes, we agree that's the standard. [00:06:07] Speaker 02: We just think that when the board then goes in the next paragraph and says that what that means is that the union has to show that the employer permitted employees to send emails for personal benefit, organizational purpose, that's not a correct application of that standard under this court's case law review of Register Guard itself. [00:06:32] Speaker 04: So that is a I'm trying to understand that's a legal error or that's a factual error in finding that the employer had not previously allowed communications of similar character. [00:06:46] Speaker 02: So thank you for that question, because I think that goes right to the heart of things. [00:06:50] Speaker 02: It's a legal error, because the board, after in the first paragraph correctly stating the broad rule, it must be similar activity, then restates it in a way that is error. [00:07:01] Speaker 02: And it's error in exactly the same way that the board erred in register guard and this court reversed in part in its decision in guard publishing. [00:07:10] Speaker 02: which is to say that the similar activity turns on, you know, the question of similarity as Judge Easterbrook sort of famously put it in the Guardian publishing decision that preceded this court's decision in Guard publishing, you have to look at what is the baseline for comparison. [00:07:29] Speaker 02: And for example, and we use this example in the brief, in Register Guard, the board said, well, that union email was for an organizational purpose so that the employer was permitted to prohibit it. [00:07:46] Speaker 02: This court said, well, wait a second. [00:07:47] Speaker 02: No, you have to look at the board's, excuse me, the employer's rule to see what the baseline of comparison is. [00:07:53] Speaker 02: In that case, the employer rule was no solicitation generally. [00:07:57] Speaker 02: So the employer picking and choosing on the basis of organizational status was applying the wrong baseline. [00:08:03] Speaker 02: So they were applying the discrimination rule incorrectly. [00:08:06] Speaker 02: And that's, that's exactly what the board has done here. [00:08:09] Speaker 02: The board has said [00:08:10] Speaker 02: the general rule, you have to look at whether the communications are of similar character, but then when it goes to apply it, it puts this gloss, this legal gloss on it of organizational purpose or personal benefit, which has no basis in the employer's rule here. [00:08:26] Speaker 02: There's nothing in the employer's rule about those things, and the employer in fact hasn't sought to justify its actions on those bases at all. [00:08:33] Speaker 02: So that's a legal error. [00:08:34] Speaker 02: And then all the factual find that, of course, once you have that fundamental legal error of what the standard is, then trying to apply that to the facts creates all sorts of problems because we think the discrimination is clear here when you correctly apply the legal test. [00:08:49] Speaker 02: I hope that answered your question. [00:08:50] Speaker 05: So the baseline is the employers policies that were in place at the time of the discipline. [00:09:02] Speaker 05: as well as any stated reasons at the time? [00:09:11] Speaker 02: So if I may, I'd like to take a half a step back in answering your question. [00:09:17] Speaker 02: Like any discrimination case, there's a variety of evidence here. [00:09:20] Speaker 02: There's the direct evidence, the contemporaneous stated reasons the employer gave for its actions, which in this case all involved it was union activity. [00:09:29] Speaker 02: So we think that's true. [00:09:30] Speaker 05: I have a bone to pick on that. [00:09:32] Speaker 05: Go ahead. [00:09:32] Speaker 02: And then you have the circumstantial evidence, which goes to the comparators. [00:09:35] Speaker 02: And the comparators are based on what the employer's rules were. [00:09:40] Speaker 02: Here, what we know about the employer's rules is that they generally allowed personal use of email. [00:09:46] Speaker 02: And there's evidence, for example, of invitations to other non-work social events like birthday parties and baby showers. [00:09:54] Speaker 02: And so our argument is that this is similar. [00:09:57] Speaker 02: This was an invitation to a weekend social event at a bowling alley. [00:10:00] Speaker 02: Yes, it was to talk about working conditions, but it's similar in all meaningful ways under the employers policy to what they permitted. [00:10:08] Speaker 02: Then the third piece of evidence is then the employer after the fact comes in and points to some of its policies and says no that wasn't permitted under these other policies. [00:10:17] Speaker 02: And we think that, as the ALJ found, and the board doesn't disturb this, we think that just shows pretext. [00:10:24] Speaker 02: I mean, this was not junk mail within any meaningful sense of junk mail, which was the main policy the employer pointed to here. [00:10:31] Speaker 02: So there's sort of three buckets of evidence, the direct evidence, the circumstantial evidence, and the pretext evidence. [00:10:37] Speaker 02: So if this were a Title VII case and you were presented with these different buckets of evidence, they would all point in the same direction. [00:10:44] Speaker 02: And that's how we present. [00:10:47] Speaker 05: All right, I think I'm structuring it slightly differently. [00:10:50] Speaker 05: And rather than direct and circumstantial, I'm thinking about it as, what are we measuring it against? [00:10:57] Speaker 05: We're measuring the employer's conduct as if it's prohibited by the policy, [00:11:04] Speaker 05: Well, that's one thing. [00:11:05] Speaker 05: It could still be discrimination if it's prohibited by the policy, but violations of the policy have otherwise been tolerated, right? [00:11:13] Speaker 06: Yes. [00:11:14] Speaker 05: But if it's not even under the policy, which is what the ALJ found, and I don't think that that's been disturbed by the board, if it's not even under the policy, then we have to look at, well, you know, employers can do things other than what's in their policy. [00:11:29] Speaker 05: And then we have to evaluate those for whether they're being done in a discriminatory manner. [00:11:33] Speaker 05: And here, Elliot gives a bunch of reasons that overlap with, but are slightly distinct from the policies, which the ALJ refers to as newly promulgated policies. [00:11:44] Speaker 05: And so then we have to look at those and see, again, with comparators, like A, are they legitimate and B, are they being [00:11:53] Speaker 05: non discriminatory applied right and that's where you come up with with potentially proof of pretext that they're being discriminatory applied. [00:12:05] Speaker 05: Does that make sense to you? [00:12:07] Speaker 02: Yes, I understand. [00:12:08] Speaker 02: I mean, I guess I have a little bit of a difficult time understanding how what Elliot said for the first time in his email after the fact, why that should be considered part of the employer's policy that we use as a basis for comparison. [00:12:23] Speaker 02: Since obviously, until he said it, at least parts of what he said, nobody had ever heard any of those rules before, as everybody seems to acknowledge. [00:12:30] Speaker 05: Right. [00:12:30] Speaker 05: I guess it depends on whether he's characterizing it as an existing rule. [00:12:34] Speaker 05: Nobody ever brought a garbage bag into the office. [00:12:41] Speaker 05: And there was no policy against bringing your composting, reeking into the office. [00:12:46] Speaker 05: And the employer just said, actually, take that home. [00:12:51] Speaker 05: I don't want that in the office. [00:12:53] Speaker 05: And didn't, in any discriminatory way, do that. [00:12:58] Speaker 05: Employer prerogative persists, even if it's not codified, is I guess what I'm saying. [00:13:02] Speaker 05: And then the question becomes, [00:13:04] Speaker 05: know, how is that prerogative being exercised? [00:13:07] Speaker 02: Right. [00:13:08] Speaker 02: I understand. [00:13:09] Speaker 02: I mean, I guess the things I would say are that there is good comparative evidence here about what the practice was. [00:13:15] Speaker 05: So going back to the Elliott email, you say that T-Mobile gave only one explanation and that it was anti-union, but Elliott's email [00:13:25] Speaker 05: says what's not appropriate is sending emails to large numbers of employees. [00:13:32] Speaker 05: And then in the next paragraph, he says, y'all have rights to join the union. [00:13:37] Speaker 05: And he puts it in a context that is not as, you can sort of condense it as that he's saying emails about the union are not appropriate. [00:13:48] Speaker 05: And that's, I'm not sure that's a fair reading of his email. [00:13:55] Speaker 05: We don't allow mass communication, it's not appropriate to solicit for any purpose. [00:14:00] Speaker 05: And then he goes to the next part, since this email address union issues, I'd like to take an opportunity to respond. [00:14:04] Speaker 05: Nobody's being silenced blah blah blah you can talk and break areas you can talk from home you can use social networks off the job of course and that's intention with the with the past policy. [00:14:18] Speaker 02: Right. [00:14:18] Speaker 02: Well, two responses, Your Honor. [00:14:20] Speaker 02: One is that prior to this email, Ms. [00:14:22] Speaker 02: Beffert was individually counseled by her team manager, Ms. [00:14:27] Speaker 02: Lillian Moran, and it was all about the union nature of the email and when and when you couldn't send emails. [00:14:34] Speaker 02: And she said you could or you couldn't use, at one point she said you could not use work email at all to send emails to coworkers about the union. [00:14:42] Speaker 02: And I guess our point is- That's a separate piece of evidence. [00:14:45] Speaker 05: You had characterized the Elliott statement as anti-union. [00:14:51] Speaker 02: I believe, well, if I did, I misspoke. [00:14:54] Speaker 02: I meant those two pieces of evidence which occurred on the same day. [00:14:57] Speaker 02: Those were the two interactions that occurred contemporaneously or immediately after Ms. [00:15:04] Speaker 02: Beffert sent her email the following Tuesday. [00:15:07] Speaker 02: She was counseled and then the facility-wide email from Elliot went out on the same day. [00:15:11] Speaker 02: In fact, she got back to her desk from her counseling and had [00:15:14] Speaker 02: received Elliot's email. [00:15:16] Speaker 02: So we take those together as contemporaneous evidence that what the employer was focused on was that the union nature of the email. [00:15:25] Speaker 02: I know I'm past my time. [00:15:27] Speaker 02: I'm, of course, happy to answer questions from the panel. [00:15:31] Speaker 07: I have two about the secondary issues in this case. [00:15:35] Speaker 07: Sure. [00:15:35] Speaker 07: Were you finished, Judge Pillard? [00:15:37] Speaker 07: Yeah, go ahead. [00:15:40] Speaker 07: We conclude that the rebuke of Beford was lawful. [00:15:44] Speaker 07: I know you disagree with that. [00:15:45] Speaker 07: But if we make that conclusion, does that mean that the new rules that were later promulgated in response were also lawful? [00:16:01] Speaker 02: No, your honor. [00:16:02] Speaker 02: And as we explain, particularly in our reply brief, although also in our opening brief, everybody agrees, all sides agree that if you agree with us on the discrimination issue, then the follow on rules. [00:16:13] Speaker 07: Right, no, but my question is about if we disagree with you on the first issue. [00:16:16] Speaker 02: Right. [00:16:17] Speaker 02: So then you have to look at the lawfulness of those rules per se. [00:16:22] Speaker 02: And as we explained, to pick one, the social media rule clearly would interfere with the exercise of Section 7 rights in and of itself, because it says no use of social media on the job. [00:16:37] Speaker 02: First of all, that's totally contradictory to what the written policy is, which permits it. [00:16:42] Speaker 07: And I appreciate it. [00:16:45] Speaker 07: I recall that part of your brief. [00:16:47] Speaker 07: And I just wanted the clarification on whether you were making concession or not. [00:16:51] Speaker 07: And you're not, which I think is a wise tactical decision to not make that concession. [00:16:57] Speaker 07: My second, my last question is, I take it that it's not lawful for an employer to promulgate rules in response to statutorily protected union activity. [00:17:12] Speaker 07: But if we conclude that the employer here promulgated new rules in response to union activity that was not statutorily protected, was that lawful? [00:17:27] Speaker 02: So this sort of merges with my prior answer. [00:17:31] Speaker 02: It's part and parcel of the analysis of the lawfulness of the rule because the analysis- [00:17:40] Speaker 07: It's going to be case by case. [00:17:41] Speaker 07: It will sometimes be lawful for an employer to promulgate new rules in response to union activity that was not statutorily protected. [00:17:50] Speaker 07: And sometimes it will not be lawful, depending on the rule. [00:17:53] Speaker 07: That's correct, Your Honor. [00:17:56] Speaker 07: I cut you off. [00:17:56] Speaker 07: If you have more, that's fine by me. [00:17:58] Speaker 07: But I'm finished with my questions. [00:17:59] Speaker 02: No, that's fine. [00:18:00] Speaker 02: That's correct, Your Honor. [00:18:03] Speaker 02: All right. [00:18:03] Speaker 04: Thank you. [00:18:03] Speaker 02: Thank you. [00:18:05] Speaker 04: Why don't we hear it from for counsel for the board and we'll give you a few minutes in rebuttal after we hear from the intervener. [00:18:16] Speaker 01: Good morning. [00:18:16] Speaker 01: May it please the court, Eric Weitz on behalf of the National Labor Relations Board. [00:18:21] Speaker 01: I think it might be most helpful for me to start by clarifying what the legal standard in this case actually is. [00:18:28] Speaker 01: And as a preface to that, the legal standard is not even properly before the court because neither aspect of it was challenged by the union below. [00:18:37] Speaker 01: There's two components to the legal standard. [00:18:40] Speaker 01: First, the board's decision in Caesar's Entertainment. [00:18:44] Speaker 01: which overruled Purple Communications, going to your question, Judge Rogers. [00:18:49] Speaker 01: And so in Caesars Entertainment, the board held, which is current law, that employees do not have a statutory right to use their employer's email system, presumptively, and that an employer can restrict access to its email system for any reason or no reason at all. [00:19:07] Speaker 01: With one exception at issue here, which is that an employer may not do so in a manner that discriminates against section seven related activity. [00:19:17] Speaker 01: And that goes to the second aspect of the legal standard here which is the board's register guard standard. [00:19:22] Speaker 01: which again was not contested by the union and is not at issue before the court. [00:19:28] Speaker 01: But nonetheless, many of the union's arguments are essentially inconsistent or express disagreement with what the board's register guard standard actually is. [00:19:39] Speaker 01: So in register guard, the board adopted a new standard for discriminatory enforcement. [00:19:44] Speaker 01: Specifically in that case, it was also in the context of email restrictions. [00:19:49] Speaker 01: And what the board said was that in order to establish discrimination, the board's general counsel has to prove before the board that the employer had allowed emails of a similar character. [00:20:03] Speaker 01: So it's essentially a disparate treatment standard where [00:20:07] Speaker 01: the general counsel has to show that these section seven related emails were prohibited, but emails of a similar character were previously allowed. [00:20:18] Speaker 01: So responding to some of the arguments that the union makes, under the board's- What about guard publishing? [00:20:22] Speaker 05: You haven't, I mean, that standard isn't the standard we would apply without the baseline that's emphasized in guard publishing. [00:20:34] Speaker 01: Well, your honor, in guard publishing, the court did not suggest that it was, you know, taking issue with the standard chosen by the board. [00:20:43] Speaker 01: And that's why, as we point out in our brief, I think the most reasonable way to interpret guard publishing is that the court was essentially applying that standard and that that was ultimately a factual disagreement between the board and the court, where the court found contrary to the board that in guard publishing, [00:21:03] Speaker 01: The employer had allowed emails of a similar character because they had allowed other personal solicitations, but then it had prohibited union solicitation so in that the board or excuse me the court. [00:21:15] Speaker 01: essentially found applying guard publishing that those were emails of a similar character. [00:21:21] Speaker 01: So that's, in our view, just a factual disagreement rather than a legal disagreement. [00:21:27] Speaker 01: However, even assuming that the court were to read guard publishing as applying a slightly different legal standard with regard to the baseline or otherwise, again, I would just point out that in this case, the union did not challenge register guard [00:21:41] Speaker 01: for the board. [00:21:42] Speaker 01: And so our position would still be that that register guard is the appropriate legal standard on review in this particular case. [00:21:51] Speaker 01: And with respect to the baseline in particular, I think [00:21:56] Speaker 01: part of the union's disagreement with registered guards is its focus on, you know, whether the prohibition of the emails here were consistent with the terms of the employer's pre-existing policies. [00:22:11] Speaker 01: But as the board noted in registered guard, that is not the standard chosen by the board. [00:22:17] Speaker 01: because, for example, an employer could decide for the first time that it doesn't want to allow this type of email, even if there's nothing in a prior rule specifically referring to that, I wouldn't necessarily concede that that is the case here. [00:22:32] Speaker 01: But the relevant inquiry at the end of the day is whether the employer had previously allowed emails of a similar character, and so it was essentially treating disparately these Section 7 related emails. [00:22:44] Speaker 05: I think we're on common ground. [00:22:47] Speaker 05: The ALJ found, and you said this isn't fatal to the board's position, the ALJ found that Befort's emails were not covered by the written policies. [00:23:02] Speaker 05: And as I was suggesting in my questioning of Mr. Ginsburg, I don't think that's the end of the matter. [00:23:07] Speaker 05: Then we look at, [00:23:09] Speaker 05: what the employer representatives said when they disciplined Befort, right? [00:23:16] Speaker 05: And in terms of those interests, we look at whether that has been discriminatory applied or not. [00:23:22] Speaker 05: And so are we on common ground that the board did not challenge or disagree with the ALJ's determination that Befort's activity was not covered by the written policies, right? [00:23:34] Speaker 01: Well, I'm not sure that the board adopted those findings. [00:23:37] Speaker 01: The board noted that it was only adopting the LJ's findings as consistent with its opinion and. [00:23:44] Speaker 01: The ALJ was applying Purple Communications, which was a different, for the first part of the standard was a different analysis because under Purple Communications, the default is essentially reversed where employees have a presumptive right to use their employer's email system. [00:24:01] Speaker 01: And it's the employer's burden to come forward with, you know, policies or justifications why it should be prohibited. [00:24:10] Speaker 05: But this is going back to the back and forth with [00:24:15] Speaker 05: triggered by Judge Rogers, first question. [00:24:18] Speaker 05: I find the invocation by ALJ and by the board of Purple Communications and Caesars Entertainment to be somewhat beside the point because the union here is not claiming a carve out from existing policies [00:24:38] Speaker 05: as a necessary protection of union activity. [00:24:43] Speaker 05: The question is a discrimination question, which neither, as Mr. Ginsburg emphasized, neither public communications nor citizen entertainment affects the discrimination question. [00:24:55] Speaker 05: And the union has not challenged the legitimacy of those policies. [00:24:58] Speaker 05: So the question is, have they been discriminatory applied? [00:25:03] Speaker 05: Am I missing something? [00:25:04] Speaker 01: No, that's correct. [00:25:05] Speaker 01: Your honor and seizures entertainment neither seizure entertainment nor purple communications modified register guard, but I think the disagreement between the board and the union here is what register guard actually says And you know, I would direct the court to read register guard. [00:25:20] Speaker 01: The board has a very clear analysis of the standard. [00:25:23] Speaker 01: It was adopting [00:25:24] Speaker 01: and that's a disparate treatment standard where the reference point is previous emails allowed by the employer, not its written policies or even the contemporaneous explanations given by the employer. [00:25:37] Speaker 05: Well, that's where we have the guard publishing opinion, which does very explicitly say we look at the reasons given and not at post hoc reasons. [00:25:49] Speaker 05: We look at the contemporaneous employer rationale [00:25:55] Speaker 05: And where the reasoning, where you can look back and say, well, this was sent on a Tuesday, and that was sent on a Monday, and that's a union neutral rationale, that isn't going to cut it under guard publishing. [00:26:11] Speaker 05: You're going to look at what the employer claimed was its interest and its reason. [00:26:15] Speaker 05: And when you apply that to emails that were permitted and emails that [00:26:22] Speaker 05: I mean, non-union emails and union emails, and if they're treated differently with respect to that rationale, then you have a case of discriminatory enforcement, no? [00:26:31] Speaker 01: Well, again, Your Honor, I think guard publishing can be read as consistent with register guard to the extent that it's not. [00:26:38] Speaker 01: I would again note that the union did not request or challenge register guard in this case before the board or say that the board should have applied a slightly different analysis to the extent guard publishing is different. [00:26:53] Speaker 01: Again, I think guard publishing ultimately was just the court disagreeing with the board's factual finding that in that case, there were no emails of a similar character. [00:27:03] Speaker 01: And part of that analysis was the court did make a reference to the explanations given by the employer. [00:27:11] Speaker 01: But that's not necessarily part of the board's own standard in register guard. [00:27:16] Speaker 01: But even if it were, Your Honor, I would note that factually in this case, [00:27:20] Speaker 01: You know, when Mr. Elliott sent the email out to the employees in this case, the focus of that email was that this was sort of an unprecedented situation of an employee sending mass emails to hundreds of coworkers. [00:27:35] Speaker 01: And so there was an explanation given, unlike in guard publishing itself, where the employer did not really make any delineation [00:27:47] Speaker 01: and the court found that it was therefore discriminating along Section 7 lines, which if I could just, in the time I have left, note the other significant factual disagreement with the arguments that the union's making this case. [00:28:01] Speaker 01: There's not any evidence in the record in this case that the employer had allowed similar mass emails to be sent by employees. [00:28:09] Speaker 01: there's evidence of a small number of employees that were sent by the employer itself regarding things such as baby showers or free food and events such as that. [00:28:20] Speaker 05: There's a loss of power cord or something like that? [00:28:22] Speaker 01: Yes. [00:28:23] Speaker 01: One non-supervisory employee, although in a different classification, sent an email out about a lost charger. [00:28:29] Speaker 01: Right. [00:28:30] Speaker 05: And there's nothing in the policies that says employees of this classification have different rights than employees of that classification. [00:28:39] Speaker 05: That is evidence of discrimination that person wasn't disciplined. [00:28:43] Speaker 01: Well, there's nothing in the policies, your honor, though that classification employee did have access to a facility wide listserv which Miss Beffer did not, which is why she had to. [00:28:54] Speaker 01: you know, circumvent that by sending it manually. [00:28:57] Speaker 01: But I think the board found that, you know, an email about a lost charger is just not of a similar character as an email, you know, soliciting or inviting employees to attend an outside event. [00:29:09] Speaker 05: But under guard publishing, which everybody cites as governing law, and we certainly are bound by, it's not a question of whether we can look back and make a distinction. [00:29:18] Speaker 05: It's a question of the distinctions that the employer made at the time. [00:29:22] Speaker 05: Right. [00:29:22] Speaker 01: Well, I'm not sure that the court is bound by guard publishing, Your Honor, because the issue of the legal standard to apply is is not properly before the court because the union did not challenge register guard the board's decision to register register guard below. [00:29:37] Speaker 01: And so I think the board's explanation of the standard in register guard as applied by the board here. [00:29:44] Speaker 01: is ultimately what should be controlling and that the court does not even need to get into any further analysis of the legal standard in this case, because in the board's view, this is ultimately just a factual dispute and an application of the standard to the particular facts of this case. [00:30:02] Speaker 04: So let me be clear, were you agreeing with Judge Pillard's premise? [00:30:08] Speaker 04: That's what I need to understand. [00:30:09] Speaker 04: As I understood her question, [00:30:14] Speaker 04: It was at the standard is beside the point that the question is discrimination. [00:30:22] Speaker 04: Have the policies been discriminatorily applied? [00:30:30] Speaker 04: If that's what you agree with, then did not the board have to address what [00:30:41] Speaker 04: essentially the ALJ found was the discrimination in this case. [00:30:50] Speaker 04: Sorry about that. [00:30:59] Speaker 04: In other words, and maybe I just misunderstand this case, but [00:31:07] Speaker 04: Given that, as the union says, there's no change in the standard, in the sense it just went back to the pre-purple communication standard, the board was finding that the record didn't show that there was a violation of the act, period. [00:31:34] Speaker 04: In other words, [00:31:36] Speaker 04: To put it very simply, in a hypothetical, suppose the employer had clearly been discriminating, period, for reason A. The board says reason A is not discrimination, because our standard requires you to show B. [00:32:04] Speaker 01: Yes. [00:32:04] Speaker 01: Well, so the board adopted a very specific standard for discrimination in registered guard, which is essentially a disparate treatment standard. [00:32:13] Speaker 01: And I think the union, because it essentially has to, says that it's not contesting that standard because it's not challenged at below. [00:32:21] Speaker 01: But I think the union is essentially arguing for a broader discrimination standard than what the board adopted in registered guard, which is this disparate treatment inquiry. [00:32:33] Speaker 04: What I understood, and maybe I am incorrect, is that when the board said in Caesar's entertainment that it was overruling Purple Communications, it was shifting the burden. [00:32:49] Speaker 04: There was no presumption in favor of the employees anymore. [00:32:55] Speaker 01: That's correct. [00:32:56] Speaker 01: So as the overarching question of whether employees have a statutory right to use the email system, that shifted. [00:33:04] Speaker 01: However, Register Guard remained the discriminatory enforcement standard, even under Purple Communications. [00:33:10] Speaker 01: So that has not changed. [00:33:13] Speaker 01: But the, you know, the initial [00:33:16] Speaker 01: presumption of whether they have a right or not does change the overall analysis, which is why the ALJ's analysis in this case was looking in a different context than what the board was looking at. [00:33:30] Speaker 04: I just need to be clear. [00:33:34] Speaker 04: Are you in agreement with what I understood to be the premise of Judge Pillard's question? [00:33:42] Speaker 04: that there's no disagreement about the standard. [00:33:44] Speaker 04: The question here is discrimination in whether or not the employer in those first two responses by the supervisor and then the director as to what they told the employee. [00:34:03] Speaker 01: Well, I guess I would disagree with that, your honor, because I think under register guard, that's not the focus of the board's standard for discrimination. [00:34:12] Speaker 01: The board looks at, is there a disparate treatment such that when the employer has chosen to prohibit these emails now, which the employer under Caesars Entertainment can do for no good reason or no reason at all. [00:34:25] Speaker 01: It can simply say, don't send these emails and not provide any reasoning. [00:34:29] Speaker 05: So just to clarify that, because I think we're getting somewhere, understanding your position. [00:34:35] Speaker 05: Sorry to jump in like that. [00:34:37] Speaker 05: But in your view, it doesn't matter whether there's any evidence in the record of the basis for T-Mobile's decision. [00:34:47] Speaker 05: T-Mobile need not at the time have had any interest or policy or [00:34:56] Speaker 05: ground that it was distinguishing between mass emails for personal benefit versus those for organizational purpose. [00:35:07] Speaker 05: It need not have had that as long as it can be discerned by the board in retrospect. [00:35:12] Speaker 01: I think that's correct. [00:35:13] Speaker 01: Your honor, because again, it's ultimately this disparate treatment analysis, although I would note that even under registered guard. [00:35:20] Speaker 01: Of course, the board noted that, you know, if there's affirmative evidence of anti union animus that that was the reason for [00:35:28] Speaker 05: That's a separate issue, yeah. [00:35:31] Speaker 05: But when we're talking about comparator evidence and circumstantial evidence of discrimination, so can you, I mean, I take it your position is that it doesn't matter whether there is any such evidence, but can you identify any evidence in the record before the board's order where T-Mobile defended its decision, it's these disciplinary decisions [00:35:57] Speaker 05: by reference to a distinction between mass emails that are sent for personal benefit versus those sent for organizational purpose. [00:36:08] Speaker 01: Well, yes, I think that's a helpful question, your honor, because that brings me to a point which I didn't address earlier, which is that the union focuses a lot on that one sentence from the board's decision in this case, as if that is the board modifying the legal standard in some way. [00:36:24] Speaker 01: That's just the board finding a fact, essentially, in this case, that there aren't emails of a similar character. [00:36:31] Speaker 01: That's the ultimate standard under register guard. [00:36:34] Speaker 01: And so it doesn't need to necessarily turn on this personal versus organizational distinction. [00:36:40] Speaker 01: What the board's decision ultimately rested on here was that the employer just had not allowed similar mass emails like the ones that were sent here. [00:36:51] Speaker 01: And I think that's also consistent with the reasoning that the employer itself gave at the time. [00:36:57] Speaker 01: I wouldn't concede that that's part of the board's [00:37:01] Speaker 01: actual standard under register guard. [00:37:03] Speaker 01: But I think all of the evidence here is consistent that the employer decided that it did not want employees sending these kinds of mass emails. [00:37:12] Speaker 01: It had never previously done so or necessarily been confronted with an employee doing so. [00:37:18] Speaker 01: And so as the board found the general counsel failed to establish this discrimination exception to Caesar's entertainment by producing affirmative evidence of disparate treatment. [00:37:30] Speaker 05: So your answer is that before the board's decision, you can't point to evidence that the employer made this distinction, but it's your understanding of register guard that it needed. [00:37:52] Speaker 01: I think that's correct, Your Honor. [00:37:54] Speaker 01: And again, I don't think that distinction in particular was the basis for the board's decision here. [00:37:59] Speaker 01: I think ultimately the standard is were there emails of a similar character and the board found here that there were not based on the record evidence. [00:38:09] Speaker 05: Right. [00:38:09] Speaker 05: Elliott says, though, and I think I understand that you think it doesn't, this is not the baseline. [00:38:17] Speaker 05: Elliott's email said, we don't allow mass communications for any non-business purpose. [00:38:23] Speaker 05: And the board finds that there were in fact several emails sent that were for non-work purposes. [00:38:30] Speaker 05: And the reason that you don't find that to be evidence of discrimination or see that as evidence of discrimination is I gather that there is a discernible difference between the kinds of mass emails that were authorized, that were not disciplined and the email that Beford sent that did draw discipline. [00:38:49] Speaker 05: Is that right? [00:38:49] Speaker 01: Yes, I think that's correct. [00:38:51] Speaker 01: And also factually, I think the employer did consistently make the argument that, for example, an email about a lost phone charger and even some of the camaraderie building emails that are in the record and the employer's view were germane to work interests in a manner that Ms. [00:39:12] Speaker 01: Beford's emails were not. [00:39:21] Speaker 04: All right, shall we hear from intervener. [00:39:23] Speaker 01: Thank you. [00:39:24] Speaker 05: Thank you. [00:39:25] Speaker 05: One more question. [00:39:26] Speaker 05: Sorry. [00:39:29] Speaker 05: Did the board address the ALJs finding that one of Moran's statements was unlawfully coercive and if so, where did the board address that? [00:39:40] Speaker 01: Well, I think the finding that the union references regarding coercion, if the court looks back at the ALJ's finding, the ALJ used the word coercive, but the ALJ was essentially finding that that established an overbroad rule that would have been interpreted as restricting Section 7 protected activity. [00:40:04] Speaker 01: And so I think it was addressed by the board in the footnote in the second, [00:40:08] Speaker 01: decision before the court where the board found that employees would not interpret any of these statements to be over broad rules because they were all made in the context of Ms. [00:40:22] Speaker 01: Beffert's emails, which the board found were unprotected for all the reasons we've been discussing. [00:40:28] Speaker 05: And if we disagreed with you about the discrimination, then the right course on that second question would be to remand for application of Boeing. [00:40:38] Speaker 01: That's correct, your honor. [00:40:42] Speaker 04: Thank you. [00:40:43] Speaker 01: Thank you. [00:40:45] Speaker 04: All right. [00:40:46] Speaker 04: Council for intervener. [00:40:48] Speaker 03: Good morning. [00:40:49] Speaker 03: May it please the court. [00:40:50] Speaker 03: Mark Theodore representing T-Mobile. [00:40:53] Speaker 03: I've been following along, obviously, the argument up to this point. [00:40:59] Speaker 03: And I just wanted to point out a couple of things about the record you have before you. [00:41:04] Speaker 03: First is you have more emails [00:41:07] Speaker 03: in the record from Ms. [00:41:08] Speaker 03: Beffert, both including the rejected emails and the emails she successfully sent, then you do have comparator emails. [00:41:17] Speaker 03: And you have nine comparator emails, all of which were sent to a WICC Everyone, which stands for Wichita Call Center Everyone Distribution List. [00:41:31] Speaker 03: Every person who sent those emails had authority and permission to send those emails on that service, Ms. [00:41:39] Speaker 03: Beffer did not. [00:41:41] Speaker 03: Eight of those were sent on behalf of management. [00:41:44] Speaker 03: And when you talk about just to take, and the testimony is all in the joint appendix, the food announcements are all just reminders of things that were already on a calendar for employees. [00:42:00] Speaker 03: The emails regarding hockey tickets are incentive and morale purposes. [00:42:06] Speaker 03: Two of the emails are for signing the card of the CEO, the birthday card of the CEO. [00:42:12] Speaker 03: And two emails were for team building morale issues, lip sync contests, and a salsa competition. [00:42:22] Speaker 03: And the only email that doesn't really fit in that is the senior representative who sends for the lost phone charger, but he too had access to that. [00:42:33] Speaker 03: And he also is clearly just seeking a lost item on behalf of one of his teammates and that is [00:42:42] Speaker 03: because he says right in the email, we had it in the pod yesterday or something to that effect. [00:42:48] Speaker 05: So is T-Mobile, is the policy T-Mobile is relying on the policy against the enterprise user standard? [00:42:57] Speaker 05: That's the policy against unauthorized access to accounts? [00:43:02] Speaker 03: Correct. [00:43:04] Speaker 03: And it also to the acceptable use policy, both of which cover that and the no solicitation and distribution policy. [00:43:12] Speaker 05: So, but she did not gain access to a higher level. [00:43:22] Speaker 05: She didn't actually, as you pointed out, use those mass access. [00:43:28] Speaker 05: She couldn't. [00:43:29] Speaker 05: In fact, she got a message that said, try sending. [00:43:33] Speaker 05: Please try to resend with fewer recipients. [00:43:36] Speaker 05: And she did that. [00:43:38] Speaker 03: Well, exactly. [00:43:39] Speaker 03: But I think the fact that she was able to figure out a way to copy and paste it doesn't mean that gave her permission to do it. [00:43:48] Speaker 03: And that was all, by the way, the company told her to stop doing. [00:43:53] Speaker 03: Because you won't find an email in the record from a customer service rep. [00:44:00] Speaker 03: Befort was a customer service rep. [00:44:01] Speaker 03: She was the only one who did this. [00:44:04] Speaker 03: You won't find a comparator email of anything close to what happened here. [00:44:09] Speaker 03: This is a facility with hundreds of people. [00:44:12] Speaker 05: And the policy that prevents a customer service rep from sending an email to the number of people that she is able to access on her authorized account is the acceptable use policy. [00:44:28] Speaker 03: is, well, both the acceptable use policy, which prevents essentially junk mail, which is defined as mass emails to people you don't know seeking things, and the enterprise union standard, which specifically says you have to have appropriate authorization. [00:44:50] Speaker 03: And the authorization process is start with a remedy ticket and specific approvals from T-Mobile management. [00:44:59] Speaker 05: acceptable use policy was, did her email interfere with the use of the resources for legitimate business purposes? [00:45:07] Speaker 05: That's not the part of the policy you're relying on. [00:45:10] Speaker 03: Well, it did in one way. [00:45:12] Speaker 03: There is testimony that several people complained about receiving it, which is how T-Mobile became aware of it. [00:45:22] Speaker 05: But did it interfere with the use of the resources, meaning the email system, [00:45:27] Speaker 05: Cause you know, you, sometimes you can get spam. [00:45:29] Speaker 05: I'm actually subject to an email attack right now and I can barely use my email because I get twice as many non-authorized emails every day. [00:45:38] Speaker 03: That's all of us, your honor. [00:45:41] Speaker 05: That's not, that's not the part of it. [00:45:43] Speaker 05: You're talking about this is junk mail. [00:45:46] Speaker 03: This is junk mail. [00:45:47] Speaker 03: That's what we relied on. [00:45:49] Speaker 03: That's what we've relied on from the very beginning and throughout. [00:45:52] Speaker 03: And that, uh, [00:45:54] Speaker 03: you know, there is just something, there is nothing at all comparable to this in the record. [00:46:01] Speaker 03: And the board I think so found, and when we talk about it, you know, at the end of their decision, they basically say there is no evidence. [00:46:10] Speaker 03: They don't say basically, there's no evidence respondent permitted employees to send mass emails for their personal benefit, much less for any organizational purpose. [00:46:20] Speaker 03: That's, I think the board saying, look, we don't even really have to get [00:46:24] Speaker 03: to register guard, which is the law, because there's no, there's just nothing here to compare it to. [00:46:33] Speaker 05: So are you agreeing with Mr. Weitz that it, that you, basically the guard publishing is not, doesn't apply here? [00:46:45] Speaker 05: Or do you think you meet guard publishing? [00:46:48] Speaker 03: I think we meet guard publishing. [00:46:50] Speaker 03: I think guard publishing [00:46:52] Speaker 03: did not, as I read that case, did not disagree with the board standard. [00:46:58] Speaker 03: It disagreed with what the employer had allowed and not allowed. [00:47:03] Speaker 03: And it was a factual disagreement. [00:47:05] Speaker 03: It was not a legal disagreement. [00:47:08] Speaker 03: And the post hoc rationalization that that panel said was basically the employer's post hoc rationalization. [00:47:18] Speaker 03: and that's not present in this case. [00:47:22] Speaker 05: You're saying the employer here doesn't even have a post hoc rationalization. [00:47:25] Speaker 05: The board attributes one to the employer and that's possible. [00:47:30] Speaker 03: That's correct. [00:47:31] Speaker 03: I don't think they attacked the legal standard at all. [00:47:36] Speaker 03: And I think you can read this board's decision though is saying, look, we don't even have to get there because there's nothing comparable to it. [00:47:44] Speaker 03: There's just nothing there. [00:47:46] Speaker 03: There's no mass email. [00:47:47] Speaker 05: So the distinction, T-Mobile didn't and didn't have to make any distinction on its policies or on the rationale it offered to befford between mass emails sent for personal benefit or organizational purpose on the one hand and all other mass emails. [00:48:10] Speaker 03: That's absolutely correct, Your Honor. [00:48:13] Speaker 05: I have a question about over-breath versus coercion. [00:48:17] Speaker 05: Do you see those as two separate issues? [00:48:21] Speaker 05: And if so, how do you respond separately to them? [00:48:28] Speaker 03: Personally, I do not see them as two separate issues. [00:48:32] Speaker 03: I think the board, if you're talking about the separate rules, [00:48:41] Speaker 03: you know, the board law is pretty clear that if something is considered overbroad, it is coercive. [00:48:50] Speaker 05: In other words, it's sort of a direct message, don't do union activity. [00:48:56] Speaker 03: Correct. [00:48:56] Speaker 03: I mean, you know, it's sort of, you know, when I listened to a lot of this NLRB precedent in the last 15 years or so, it's been a lot like a trendy diet, right? [00:49:06] Speaker 03: It only works for half of the people [00:49:08] Speaker 03: and then it gets replaced by the next big fad. [00:49:11] Speaker 03: So you have to sort of look at things in context of how the board's going to try to interpret things. [00:49:20] Speaker 03: From the employer's perspective, we always have to be very, very mindful that that [00:49:28] Speaker 03: Next big fad could be coming down the pike and change the law in this. [00:49:32] Speaker 03: And so what, you know, what is overbroad today and coercive today may not be overbroad tomorrow. [00:49:38] Speaker 03: And that's Boeing and Lutheran and all those cases. [00:49:42] Speaker 05: So you also agree that if, and I know this is not your position, but were we to disagree with you on that discriminatory enforcement point that with respect to overbroad coercion, that should be remanded for application of Boeing. [00:49:58] Speaker 03: I think that's right. [00:50:08] Speaker 05: Anything further? [00:50:09] Speaker 05: I thought that the board said that you hadn't offered business justifications. [00:50:19] Speaker 05: Did you offer business justifications that would apply under Boeing? [00:50:25] Speaker 03: We never got there, your honor, because, you know, they, under Caesar's, again, if we're talking, and I wanna make sure you're clear about what we're talking about. [00:50:36] Speaker 03: If we're talking about the supplemental decision in those rules, the Caesar's, the board severed those allegations on the very limited basis of whether there was, [00:50:54] Speaker 03: an alternate ability of employees to communicate. [00:50:58] Speaker 03: And the general counsel had no other proof. [00:51:02] Speaker 03: The union had no other proof. [00:51:04] Speaker 03: And we submitted, which I actually just replicated at the last portion of our brief, all of the evidence from all of the witnesses, including Beford, all the witnesses who were engaged in union activity, who readily admitted that they had many alternate means of communication. [00:51:32] Speaker 04: Anything further? [00:51:33] Speaker 03: Nothing further. [00:51:35] Speaker 04: Thank you. [00:51:36] Speaker 04: All right. [00:51:41] Speaker 04: So counsel for petitioner. [00:51:44] Speaker 02: Yes, thank you, Your Honors. [00:51:47] Speaker 02: even if this court were to accept Elliot's emailed statement as the employer's rule, which we obviously don't agree the court should do, and I'll address in a second. [00:51:57] Speaker 02: If you look at the evidence in this case and the ALJ's decision, it was not, you know, the facts were affirmed by the board at page joint appendix 18, which is page seven of the board's decision. [00:52:09] Speaker 02: He found another employee, and I'm quoting, sent notification of birthday plans for another employee throughout the facility. [00:52:16] Speaker 02: Baby showers also may take place in which the staff holds a potluck dinner and people voluntarily purchase joint gifts. [00:52:24] Speaker 02: So, and a bowling invitation if done for recognition of work group would be considered business related. [00:52:29] Speaker 02: So there is evidence in this record of similar invitations. [00:52:33] Speaker 02: Ms. [00:52:33] Speaker 02: Beffert sent one email to each of her coworkers inviting them to a bowling social event to talk about working conditions and to have fun the following night, one time. [00:52:44] Speaker 02: And we think that even under Elliott's standard is clearly comparable. [00:52:50] Speaker 02: And the testimony, there was plenty of testimony from both the union's witnesses and the employer's witnesses that there was a lot of this sort of email that went around, and that's the basis for the [00:53:05] Speaker 02: the board's finding. [00:53:06] Speaker 02: I would also just say that if you look at this court's guard publishing decision, the court clearly looked at the employer's written rule as well as its explanation because the basis for reversing the board on its finding that one of the disciplines of the employee for sending a union email was [00:53:29] Speaker 02: was reversing the board's finding that was lawful was because even though the employer said it was for an organizational purpose, the rule didn't speak about organizational purpose at all. [00:53:40] Speaker 02: So we dispute that Elliot could, after the fact, create a new rule when there is a written rule in place, which as you've just heard from counsel was the junk mail rule and the other rules they invoke. [00:53:51] Speaker 02: that didn't apply. [00:53:52] Speaker 02: So we don't think Elliott can after the fact come in and create a new rule. [00:53:56] Speaker 02: But even if this court were to find that, the evidence in the record shows lots of comparables. [00:54:03] Speaker 02: And we think the way that the board treated that evidence, with the way it applied the registered guard standard, the way it explained what the registered guard standard was, was a legal error. [00:54:11] Speaker 05: And how do you respond to Mr. Whitson's [00:54:15] Speaker 05: contention that we only can look at Register Guard in its own terms. [00:54:18] Speaker 05: We can't look at Guard Publishing because you didn't challenge or raise Guard Publishing. [00:54:27] Speaker 05: Where does Guard Publishing stand? [00:54:29] Speaker 02: I don't understand the argument because as I read Register Guard, and we discussed this in our reply brief at pages 14 and 15, Register Guard, and we have all the citations, so they're in our reply brief. [00:54:42] Speaker 02: I could read them to you. [00:54:44] Speaker 05: Thank you. [00:54:44] Speaker 02: You know prominently sites this court's decision and Lucille salt salt or Packard Children's Hospital for what the basic discrimination standard is it adopts that standard. [00:54:55] Speaker 02: And then, when that comes up. [00:54:59] Speaker 02: You know, I mean, there's a back and forth with this court over its application of the standard in that decision. [00:55:05] Speaker 02: But we don't quarrel with that standard. [00:55:08] Speaker 02: We just don't think what the board has done here is consistent with its Registered Guard standard and that this court basically, in Registered Guard, the board stated a proper legal standard. [00:55:23] Speaker 02: And then this court reversed because they didn't apply it properly. [00:55:27] Speaker 02: And that's exactly what went on here. [00:55:29] Speaker 02: They cite that same standard. [00:55:31] Speaker 02: The board cites that same standard in its decision at the top of the first column and page three of its decision. [00:55:38] Speaker 02: And then goes on to change that standard by saying, well, you have to show organizational purpose or personal benefit. [00:55:45] Speaker 02: That's almost exactly what the board did in Register Guard. [00:55:49] Speaker 02: So we don't have a quarrel with the basic disparate treatment standards stated. [00:55:53] Speaker 02: We have a quarrel with how they interpreted it to apply it in the case, just that it's very, very, it's not exactly the same, obviously, because the facts are very similar to what happened in those cases. [00:56:05] Speaker 05: Just to pin this down, let me ask you in another way. [00:56:07] Speaker 05: So Mr. Weiss and Mr. Theodore have argued that under register guard, [00:56:16] Speaker 05: It's more like a rational basis test than it is like a discriminatory enforcement test in another context. [00:56:27] Speaker 05: They're basically saying if you can conceive of a reason after the fact to distinguish her email from emails that were permitted, that is fine under register guard. [00:56:45] Speaker 02: I heard them say that there is no basis for that argument in the board's decision in this case in the board's decision and register guard. [00:56:54] Speaker 02: or in any board decision. [00:56:56] Speaker 02: The board has never adopted that position. [00:56:59] Speaker 02: And in fact, in this case, when it cites the register guard standard, again, in the top left column on page three of its decision at Joint Appendix 14, they cite the register guard standard. [00:57:10] Speaker 02: And I'm sorry, they quote the register guard standard. [00:57:15] Speaker 02: And that quotation comes directly from a site to this court's case in Lucille Salter Packard Children's Hospital. [00:57:22] Speaker 02: It's a very well established discrimination standard. [00:57:25] Speaker 02: So if the board meant to adopt some new different standard other than that standard which has been in place for a long time, they had to say so and they never did. [00:57:33] Speaker 02: The only place they've said so with all respect to my opponent is in counsel's brief, not in the board's decision or in any board decision. [00:57:42] Speaker 07: You can see that the company does not have to distinguish mass emails that are dissimilar. [00:57:52] Speaker 07: from the email in question. [00:57:54] Speaker 07: I mean, T-Mobile I'm sure sends a mass email to its employees every day, probably multiple times a day, thousands of times a year. [00:58:03] Speaker 07: And T-Mobile doesn't have to say at the ALJ stage or at the board stage or here. [00:58:13] Speaker 07: Well, we're going to distinguish the email in question that was sent in response to Beford's email [00:58:21] Speaker 07: Sorry, we don't have to distinguish Beverage email from all of those thousands of other mass emails, right? [00:58:29] Speaker 02: I mean, we would we have not argued that that sort of generic employer email to its employees say, you know, we're changing the schedules, everybody's coming in a half an hour early tomorrow, that's that we don't consider that a relevant comparator. [00:58:45] Speaker 07: Right. [00:58:45] Speaker 07: And so then the question then becomes the 8 to 10 emails about birthday parties and lost phone chargers. [00:58:53] Speaker 07: Are they like the thousands of other mass emails that don't have to be distinguished from Beford's email? [00:59:00] Speaker 07: Or are they similar to Beford's email, in which case maybe they have to be distinguished? [00:59:05] Speaker 07: Isn't that the inquiry? [00:59:06] Speaker 02: Yes, I think so. [00:59:08] Speaker 02: Although I would point the emails that we particularly point to our emails sent by other employees like Beffert to all to the facility wide emails about non work social gatherings. [00:59:21] Speaker 02: I mean, it's almost identical to what she did here with the only difference. [00:59:24] Speaker 07: That begs the question, are they is it almost identical? [00:59:27] Speaker 07: And we think there's almost identical, then you're on some solid ground and we have to do a lot of other stuff. [00:59:32] Speaker 07: But if we think that they're not identical, if we think they're actually [00:59:35] Speaker 07: quite similar to the thousands of other workplace emails that are sent, then that's the end of the analysis, correct? [00:59:41] Speaker 02: That is correct. [00:59:41] Speaker 02: I would just draw the court's attention again to the ALJ's findings at page seven of its decision, where he specifically found that other employees, for example, sent notification of birthday plans for another employee throughout the facility, that similar activities. [00:59:57] Speaker 02: Right, I get it. [00:59:58] Speaker 05: I get that you think that those are. [00:59:59] Speaker 05: But you said that if they're different, then [01:00:04] Speaker 05: they aren't probative of discriminatory application. [01:00:08] Speaker 05: But don't they have to be different in a way that the policies or rationales the employer has stated make salient as opposed to a post hoc reason? [01:00:26] Speaker 02: Yes. [01:00:27] Speaker 02: Yes. [01:00:27] Speaker 02: Although, yes. [01:00:31] Speaker 02: I yes. [01:00:35] Speaker 02: Leave it at that. [01:00:38] Speaker 02: If there are no further questions, I appreciate the court's time. [01:00:42] Speaker 04: Thank you. [01:00:43] Speaker 04: We'll take the case under advisement.