[00:00:00] Speaker 01:
Case number 20-1067, Ra'ed Makrakan-Javar, petitioner versus National Labor Relations Board.

[00:00:07] Speaker 01:
Mr. Javar for the petitioner, Mr. Soder for the respondent.

[00:00:11] Speaker 00:
All right, council for petitioner.

[00:00:15] Speaker 03:
May it please the court.

[00:00:16] Speaker 03:
My name is Ra'ed Makrakan-Javar and I am representing myself in this matter.

[00:00:22] Speaker 03:
Your honors, as you were able to read in my briefs, this case is about a simple petition, concerted, protected activity by employers of Amnesty International USA alarmed about the exploitation of labor of interns at the same organization.

[00:00:41] Speaker 03:
We all believed that interns should be paid for their labor because we cared about them.

[00:00:48] Speaker 03:
We cared about our own work.

[00:00:50] Speaker 03:
and because we also joined to protest what we all perceived to be a bad policy that led to racial injustice at the organization.

[00:01:00] Speaker 03:
At the petition read, without pay, AIUSA internships are more available to students of higher socioeconomic status, which serves to limit racial socioeconomic diversity.

[00:01:16] Speaker 03:
As a person of color, of course, I cared about

[00:01:19] Speaker 03:
diversity and racial justice in the organization.

[00:01:23] Speaker 03:
In response to the petition, the employer made statements that were found to be in violation of the NLRA, first by the NLRB general counsel, then later by an administrative law judge.

[00:01:38] Speaker 03:
And although the employer initially filed two very limited exceptions to the judge's findings,

[00:01:45] Speaker 03:
the employer then agreed to a formal settlement where the organization would admit wrongdoing and follow the judge's cease and desist order and affirmative action order.

[00:01:58] Speaker 03:
Then the board unexpectedly stepped in, interrupted the settlement process and rushed into issuing this order.

[00:02:06] Speaker 03:
So my case here is not just about the NLRB board

[00:02:11] Speaker 03:
reversing the administrative law judges findings pertaining to my specific case.

[00:02:19] Speaker 03:
But it's also about how the order went so far to chip away at the protections of section seven of the NLRA.

[00:02:32] Speaker 03:
Because according to the board, our actions exclusively advocated for non-employees and did not affect our

[00:02:41] Speaker 03:
own terms and conditions of employment.

[00:02:43] Speaker 03:
So what I'm trying to say here is that the board order is not dictum.

[00:02:47] Speaker 03:
This is not a one-off ruling that affects my individual case.

[00:02:51] Speaker 03:
It's a dangerous new precedent that will have lasting damage on workers' rights in the United States.

[00:03:00] Speaker 03:
On the one hand, the ruling puts an unfair burden on workers to make distinctions between who is covered by the act, who is not covered by the act, before they can act in solidarity with anyone who works in the same workplace.

[00:03:21] Speaker 03:
And of course, the result will be

[00:03:24] Speaker 03:
creating a chilling factor that would dissuade an average worker from taking the risk of engaging in concerted activity in the future.

[00:03:34] Speaker 03:
So as you can see in my arguments, I have requested that this court vacate the NLRB board ruling mainly because of two reasons.

[00:03:46] Speaker 03:
The first one is that the board went against the preponderance of evidence.

[00:03:52] Speaker 03:
There is a lot of evidence there that was found by the neutral fact finder, who's a federal administrative law judge process.

[00:04:04] Speaker 03:
He interviewed the witnesses, he lived the case, listened to the audio recordings of the statements, and ruled that the statements by the employer violated the NLRA in four different ways.

[00:04:19] Speaker 03:
But more importantly,

[00:04:20] Speaker 03:
The fact that the board departed from Supreme Court precedent and from its own precedent without explanation is an enough reason to send this case back to the NLRB board.

[00:04:37] Speaker 03:
The NLRB board ducked foundational case law without explaining why.

[00:04:43] Speaker 03:
Like for example,

[00:04:44] Speaker 03:
Peter K.A.

[00:04:46] Speaker 03:
Koller, one of the Keystone foundational rulings by Judge Learned Hand, was not even mentioned once in the board's explanations to its departure.

[00:04:58] Speaker 03:
The board does not even attempt to explain its departure from Eastex, from Supreme Court rulings pertaining to section seven.

[00:05:09] Speaker 03:
And at the end of the day, the board's primary rationale

[00:05:14] Speaker 03:
in overturning the administrative law judge's ruling was that our concerted activity was not protected by Section 7.

[00:05:27] Speaker 03:
According to the board itself, if

[00:05:31] Speaker 03:
if they were, you know, did not go as far as reaching the question on whether the employees engaged in activity under section seven, that the case cannot be overturned.

[00:05:49] Speaker 03:
So that's why even if this court will not go to the length of looking at the evidence, which I have put

[00:05:57] Speaker 03:
You know, many reasons in my briefs for why this court should consider the evidence, because of the disagreement between the administrative law judge and the board, because of the ruling on whether or not

[00:06:15] Speaker 03:
the interns were employees, which is a pure question of law that this court should not give difference to the board on and other reasons.

[00:06:24] Speaker 03:
But even if this court does not go down the route of looking into the merits of the evidence itself, only by sending back this ruling based on the section seven departure with no explanation with immediate result in

[00:06:44] Speaker 03:
overturning the board's decisions regarding my case.

[00:06:49] Speaker 03:
So I see that I am almost done with my time here.

[00:06:52] Speaker 03:
I just wanted to say that the dissenting board member, now Chairman McFarren, said in her dissenting opinion that, I'm quoting here, until today, it was clear that the National Labor Relations Act protected covered employees

[00:07:13] Speaker 03:
who joined together to help their coworkers, even if those workers were not covered themselves.

[00:07:20] Speaker 03:
And I think the chairwoman is right.

[00:07:23] Speaker 03:
And your honor, today is the day that the court can undo the damage caused by the NLRB board's overreach and restore one of the most basic protections for U.S.

[00:07:33] Speaker 03:
workers.

[00:07:36] Speaker 00:
Thank you, Mr. Giroir.

[00:07:43] Speaker 01:
Let's hear for counsel for the board, and we will give you, I think it is three minutes on rebuttal.

[00:07:54] Speaker 02:
Good morning, Your Honors.

[00:07:55] Speaker 02:
Greg Sautter for the National Labor Relations Board.

[00:07:58] Speaker 02:
Your Honors, this court will uphold a board dismissal order unless it lacks any rational basis.

[00:08:07] Speaker 02:
Here, the board dismissed this case because it found that Margaret Huang, the director of amnesty,

[00:08:13] Speaker 02:
Her statements to Amnesty staff and to Mr. Terrar did not violate the act in any respect.

[00:08:20] Speaker 02:
And in so doing, the board looked at all the circumstances surrounding Huang's statement as it is required to do under its own law.

[00:08:28] Speaker 02:
Specifically, the board considered the fact that Ms.

[00:08:32] Speaker 02:
Huang responded favorably when she was at first approached about the question of paid internships at Amnesty.

[00:08:39] Speaker 02:
that she immediately leveled with the employees and telling them that if there was a shift towards paid internships, there would likely be a reduction in the number of interns that Amnesty could employ.

[00:08:56] Speaker 02:
Also, the fact that she was surprised and a little blindsided when she received the petition, given that she had had what she felt was a productive talk with Amnesty's employees.

[00:09:09] Speaker 02:
that she immediately raised the issue to the executive team, which was meeting that week in order to arrive at a decision on how to proceed and that the executive team actually decided to move its plans for paid internships up by a year.

[00:09:27] Speaker 02:
And then that when she announced the information, the news to her employees, she was met with a backlash that she completely did not expect.

[00:09:39] Speaker 02:
Based on those circumstances, the board examines the statements that Ms.

[00:09:45] Speaker 02:
Hwang made, statements that included saying that Amnesty never discharged anyone for signing a petition, that she was embarrassed and disappointed that she didn't have the relationship with staff that she wished that she had or that she thought that she had, that it would have been very helpful to know about the petition ahead of time so that she could have worked with employees to understand

[00:10:08] Speaker 02:
why they were ultimately so frustrated and disappointed with the result.

[00:10:13] Speaker 02:
And also her suggestions as to how to proceed in the future so as not to be in the same situation of basically miscommunication that resulted in dismay by employees after what she thought was an attempt to address their concerns.

[00:10:34] Speaker 02:
In reviewing all of those circumstances and Ms.

[00:10:37] Speaker 02:
Plunk's statement in that context, the board found that reasonable employees sitting in Mr. Girard's position would not have found that those employees expressed anger or betrayal or any accusations of disloyalty or were threatening in nature, but rather that they expressed disappointment at how things had gone on

[00:11:02] Speaker 02:
frustration at her failure to handle the situation in a way that would have prevented this kind of concern on the part of employees and attempt to prevent that kind of incidents from occurring again in the future.

[00:11:24] Speaker 02:
So the board came to this finding

[00:11:29] Speaker 02:
As I said, in making, considering all of the circumstances, doing its due diligence as required under board law and under the act, and it's finding that Ms.

[00:11:40] Speaker 02:
Huang's statements didn't violate the act in any respect, we submit completely disposes of this case.

[00:11:46] Speaker 02:
Now, the board also considered the fact that the ALJ had decided, had found that interns were employees under the FLSA.

[00:11:58] Speaker 02:
And the board felt that it had to address that problem, that issue, because it felt that the ALJ had mistakenly come to that conclusion.

[00:12:07] Speaker 02:
And so what the board did was analyze the employment status of interns.

[00:12:12] Speaker 02:
However, before I go in there, I would like to point out that all of Mr. Jarrar's challenges to that section of the board's decisions are either forfeited or waived.

[00:12:26] Speaker 02:
Mr. DeRar, who was represented by an attorney before the board, should have raised those challenges to the board itself, rather than waiting until now to raise them to this court.

[00:12:39] Speaker 02:
He could have done so in cross exceptions, responding to amnesty's exceptions to the ALJ's decision.

[00:12:46] Speaker 02:
He could have also done so in an answering brief to amnesty's exceptions,

[00:12:52] Speaker 02:
He did neither.

[00:12:53] Speaker 02:
His counsel was not asleep at the switch.

[00:12:55] Speaker 02:
However, she actually filed a motion to strike amnesty's exceptions on procedural grounds.

[00:13:00] Speaker 02:
So he had counsel and counsel was clearly following the proceedings.

[00:13:08] Speaker 02:
However, he did not file any cross exceptions or an entering brief.

[00:13:13] Speaker 02:
And he also more significantly did not file a motion for reconsideration once the board issued its decision.

[00:13:22] Speaker 02:
And therefore, we respectfully submit that none of Mr. Jarrar's arguments are before the court.

[00:13:30] Speaker 02:
There is one that we can concede is arguably for this court, and that is the issue whether interns could be considered job applicants.

[00:13:44] Speaker 02:
And that issue was raised by the general counsel in its exceptions to

[00:13:50] Speaker 02:
the board and therefore was preserved.

[00:13:53] Speaker 02:
However, Mr. Drouard did not make any argument on this particular issue.

[00:13:59] Speaker 02:
He just mentioned it in his opening brief.

[00:14:02] Speaker 02:
He did not cite to any case law.

[00:14:04] Speaker 02:
He did not cite to the record.

[00:14:06] Speaker 02:
And therefore, we submit that that argument is waived under Fox and other DC circuit law.

[00:14:15] Speaker 02:
So in summary, we have

[00:14:18] Speaker 02:
Before this court, what is left is the 81 issue, whether Ms.

[00:14:23] Speaker 02:
Hwang's statements violated the act.

[00:14:25] Speaker 02:
And as I've just explained, the board reasonably found, reasonably concluded that they did not.

[00:14:32] Speaker 02:
So based on that, and unless you have any other questions, I would, the board would respectfully request that this court enforce its dismissal order in full.

[00:14:45] Speaker 00:
All right, thank you, council.

[00:14:48] Speaker 00:
Hearing no questions, let me ask Mr. Giroir if he would like the three minutes he preserved.

[00:15:06] Speaker 03:
Yes, Your Honor.

[00:15:07] Speaker 03:
Thank you.

[00:15:07] Speaker 03:
And as I have explained in my petition and reply brief to the respondent's brief,

[00:15:18] Speaker 03:
On the one hand, I did preserve all of my claims except for one.

[00:15:24] Speaker 03:
And in my brief, I speak about all of the details of where these issues were raised.

[00:15:39] Speaker 03:
Because the standard of review for this court is

[00:15:42] Speaker 03:
whether the board received adequate notice of the basis of the objection, and that burden is not exclusively on me.

[00:15:55] Speaker 03:
It is the board's own general counsel,

[00:16:00] Speaker 03:
raised these objections in its briefs, in its reply briefs, some of the exceptions.

[00:16:09] Speaker 03:
So I list all of the instances where all of my arguments were brought up during those briefs, except for one.

[00:16:21] Speaker 03:
And the one that was not brought up is the issue where the board

[00:16:25] Speaker 03:
interrupted the settlement process.

[00:16:29] Speaker 03:
This is not any kind of a settlement process.

[00:16:32] Speaker 03:
It's a settlement process where the employer agreed to a formal settlement where it was OK with admitting wrongdoing and following the judge's orders completely.

[00:16:48] Speaker 03:
And the board departed from that without explanation, and I did not

[00:16:55] Speaker 03:
preserve that by filing a motion to reconsider, but I have asked that this court look into this because of the extraordinary circumstances surrounding this particular issue.

[00:17:10] Speaker 03:
So I think the claims that I did not preserve, my arguments are meritless and I have answered them

[00:17:20] Speaker 03:
All in the in my reply brief.

[00:17:24] Speaker 03:
The second point that I want to make in my remaining time is that

[00:17:28] Speaker 03:
when it comes to the evidence that was discussed by the board, the judge ruled on very, very detailed that there were four violations committed by the employer through their statements.

[00:17:44] Speaker 03:
And these violations were documented by witness statements, by literally an audio recording of the executive director's statements.

[00:17:54] Speaker 03:
These included instructing employees

[00:17:56] Speaker 03:
to communicate complaints to management orally before submitting complaints and writing.

[00:18:02] Speaker 03:
Don't write any more petitions, talk to me first.

[00:18:06] Speaker 03:
Threatening employees with unspecified reprisal because they engaged in protected concerted activity and the judge gets into detail on why there was this unspecified reprisal based on case law and the facts in this law.

[00:18:21] Speaker 03:
in this case, equating protected concerted activity with disloyalty.

[00:18:26] Speaker 03:
There are many, many statements that were like on the record in that issue.

[00:18:33] Speaker 03:
And the last one is requesting us to snitch on each other, requesting employees to report to management employees who are engaged in protected concerted activity.

[00:18:43] Speaker 03:
You know, as these statements were made

[00:18:45] Speaker 03:
before other witnesses or on a recorded audio tape that was played in the courtroom where the administrative law judge listened to but even if all of these things factually actually even if the board is right when it comes to the evidence itself the fact that the board relied

[00:19:07] Speaker 03:
on one main rationale, which is that these activities were not covered by Section 7.

[00:19:13] Speaker 03:
That rationale contradicts with the Supreme Court and the board's own precedent.

[00:19:20] Speaker 03:
And if that rationale does not stand, the entire case does not stand.

[00:19:24] Speaker 03:
This is not just according to me.

[00:19:26] Speaker 03:
It's according to the board's own order.

[00:19:29] Speaker 03:
If the rationale does not stand, the entire case does not.

[00:19:36] Speaker 00:
All right.

[00:19:38] Speaker 00:
Nothing further?

[00:19:40] Speaker 00:
We will take the case under advisement.

[00:19:42] Speaker 00:
Thank you.