[00:00:01] Speaker 00: Case number 22-1320 et al. [00:00:03] Speaker 00: Absolute health care, the Wayne Business Security Arizona petitioner versus National Labor Relations Board. [00:00:11] Speaker 00: Mr. Dilger for the petitioner, Ms. [00:00:13] Speaker 00: Chihi for the respondent. [00:00:31] Speaker 05: Good afternoon, your honors. [00:00:34] Speaker 05: May it please the court. [00:00:36] Speaker 05: Jeffrey Dilder on behalf of Absolute Health Care. [00:00:40] Speaker 05: This is a disparate treatment case in which there was no disparate treatment. [00:00:45] Speaker 05: The evidence in this case shows that the employer had a discipline process and that it followed that discipline process. [00:00:54] Speaker 05: And the evidence shows that it followed it for the alleged discriminity in this case, Ms. [00:00:58] Speaker 05: Keen. [00:00:59] Speaker 05: and also for the comparator, Mr. Hubbard. [00:01:03] Speaker 05: In particular, Ms. [00:01:05] Speaker 05: Keen was subject prior to her termination in which the board does not contest these levels were validly issued, three levels of progressive discipline for 11 violations of company policy. [00:01:19] Speaker 05: That included a final written warning, which by her own admission, you can find it at Joint Appendix 33, she admitted that the company told her [00:01:29] Speaker 05: another violation of policy would result in the termination of our employment. [00:01:37] Speaker 04: Can I ask you a threshold question before we go too deep into what was briefed? [00:01:45] Speaker 04: My question for the board is going to be whether the NLRA protects employees at a company if the company's [00:01:59] Speaker 04: core enterprise is illegal under federal law. [00:02:04] Speaker 04: So the question before that is, is your company's enterprise legal or illegal under federal law? [00:02:13] Speaker 05: I know what the board will say. [00:02:15] Speaker 05: We are not contesting that there's jurisdiction under the national labor relationship. [00:02:19] Speaker 04: My question is a step before that. [00:02:23] Speaker 04: Is most of what you're selling [00:02:28] Speaker 04: illegal under federal law? [00:02:31] Speaker 05: Under the Controlled Substances Act. [00:02:33] Speaker 04: Okay. [00:02:33] Speaker 04: Then I'll ask her about the jurisdictional matters. [00:02:38] Speaker 02: All right. [00:02:38] Speaker 02: The question is, can the National Labor Relations Act provisions apply to workers who are in the United States without documentation? [00:02:50] Speaker 02: Right. [00:02:50] Speaker 02: It can. [00:02:51] Speaker 02: Can I ask a separate question? [00:02:53] Speaker 02: And that is, you challenge the notice reading remedy here? [00:02:56] Speaker 02: Yes. [00:02:57] Speaker 02: But the general counsel obtained an injunction early on, which was what reinstated Ms. [00:03:04] Speaker 02: Keene, but also included an obligation for a reading of the order and gathering a meeting, gather meeting, read the order. [00:03:17] Speaker 02: So Ms. [00:03:17] Speaker 02: Cade was there. [00:03:17] Speaker 02: She signed the compliance order with the district court. [00:03:21] Speaker 02: So the notice reading requirement has already been fulfilled. [00:03:27] Speaker 05: I would argue that it has, but the notice that has to be read will be slightly different than the court's order in the underlying 10 J injunction. [00:03:35] Speaker 05: So I don't believe that it's been. [00:03:37] Speaker 02: If your position has already been complied with and that would render that challenge. [00:03:42] Speaker 02: We'll see if the board says. [00:03:43] Speaker 05: Yeah, you're supposed to read it twice or something or I would argue that the the purpose of the notice reading has been fulfilled in that any alleged violation. [00:03:56] Speaker 02: I mean, it sounds like maybe you read the court's order, but the court's order was enforcing the board's order and had all the same statements that were supposed to be read. [00:04:06] Speaker 02: Was there any material difference between what was read at that meeting and what the board's decision requires to be read? [00:04:13] Speaker 05: other than the reinstatement being interim versus fixed. [00:04:20] Speaker 02: I'm not aware. [00:04:21] Speaker 02: I had to say at that time. [00:04:22] Speaker 05: But I also will admit that I have not compared the two recently. [00:04:27] Speaker 02: Okay. [00:04:28] Speaker 02: It seems like there's a substantial question of mootness as to your notice reading plan. [00:04:32] Speaker 02: Agreed. [00:04:33] Speaker 02: I assume you're not saying that you have to do it twice. [00:04:36] Speaker 05: I don't think that we should be required to do it. [00:04:39] Speaker 02: The general counsel that's thought this initial reading requirement will be a little rich of them to turn around and say, no, no, no, no, you still have to do this other one. [00:04:51] Speaker 05: I would agree. [00:04:51] Speaker 05: And I also believe that, like I said, the reading of the notice remedies, any of the violations that would be to do it again would make little sense. [00:05:01] Speaker 02: Uh, but I think there have been a union election. [00:05:04] Speaker 02: In the meantime, a lot of times elapsed here. [00:05:06] Speaker 02: No, that was keen. [00:05:08] Speaker 05: Still employed there is keen is, is employed on an interim basis pursuant to this. [00:05:13] Speaker 05: Okay. [00:05:15] Speaker 05: And again, what I wanted to just make very clear with regards to her treatment in this case is that she was given a final written warning. [00:05:24] Speaker 05: She received three levels of progressive discipline before her ultimate infraction. [00:05:29] Speaker 05: But at the final written warning level, she was told, if you have another violation, it will result in the termination of your employment. [00:05:37] Speaker 05: And lo and behold, that's what happened. [00:05:39] Speaker 05: And in late August and ultimately on August 28th when the discharge was affected, she admitted that she had a $20 drawer shortage, that she had violated company policy. [00:05:53] Speaker 05: And so her termination was for precisely the reason that was proffered in the final written warning, another violation of company policy. [00:06:02] Speaker 05: And so it was valid and you can compare. [00:06:04] Speaker 02: And it's your position, but it's not what the board found here. [00:06:09] Speaker 02: And you're really they found you're talking about what was the motive and I understand your arguments you laid them out well in your brief. [00:06:17] Speaker 02: But they found that in fact the motivation was her union activities and you have and so animus is. [00:06:29] Speaker 02: the existence of none of that is a factual question, correct? [00:06:32] Speaker 02: So it's a factual question. [00:06:33] Speaker 02: Well, the disparate, it is a factual question. [00:06:35] Speaker 02: That's the animus question. [00:06:36] Speaker 02: When I say animus, that's my shorthand for what motivated the discharge. [00:06:41] Speaker 02: Yes. [00:06:41] Speaker 02: And so we have a factual question. [00:06:45] Speaker 02: And given our senior review, it's not good enough for you to show it was more likely than not [00:06:55] Speaker 02: that you were going to discharge her, right? [00:06:57] Speaker 02: This isn't like a civil suit. [00:06:58] Speaker 02: We would essentially have to find that the board could not rationally, that it committed clear error in finding that the motivation was different than what you argue. [00:07:10] Speaker 02: And so that's not to dismiss the arguments you make. [00:07:15] Speaker 02: And the record is just we are in a different world here where you're showing is, I mean, you've got a very steep hill to climb. [00:07:21] Speaker 02: So tell me how, given that, [00:07:25] Speaker 02: as Cade expressly disparage her and her motivations in front of her coworkers, said to them, she's just in this for a paycheck, which is a way of saying she doesn't care about any of you co-employees, coworkers. [00:07:42] Speaker 02: Extraordinarily inappropriate comment and harmful and hurtful comment that suggests some real desire to hurt Ms. [00:07:53] Speaker 02: Keene. [00:07:55] Speaker 02: and top of the timing and the fact that there were other unfair labor violations all happening at this exact same time. [00:08:03] Speaker 02: Given that record, if we're given two stories here, both of which seem tenable, [00:08:11] Speaker 02: How, as a court, are we supposed to say that given that record, and for me particularly, that disparagement on top of everything else, that it was irrational? [00:08:23] Speaker 02: No rational person could come to the conclusion that the board did. [00:08:27] Speaker 05: So what I would just say is that the disparate treatment evidence actually weighs on both sides of the ledger here. [00:08:34] Speaker 05: There is both the prima facie case, where the board is relying upon disparate treatment evidence to show anima. [00:08:40] Speaker 05: But then there is also the employer's rebuttal case where it is demonstrating that it would have done the same thing regardless of the prima facie case. [00:08:48] Speaker 05: And I think that that's where I would like to focus, which is that, and in particular, when you look at Mr. Hubbard, the comparator. [00:08:59] Speaker 02: So you've done enough. [00:09:01] Speaker 02: So we can say you did enough to show that you had an argument on that side. [00:09:08] Speaker 02: about your reasons for discharging her. [00:09:10] Speaker 02: Maybe even a good argument. [00:09:12] Speaker 02: Maybe it even seems more likely than not. [00:09:17] Speaker 02: We can't decide the case on that basis. [00:09:19] Speaker 02: We have to say that you're showing, essentially shut out, shut out any rational basis for concluding otherwise. [00:09:33] Speaker 02: And that's where I'm struggling. [00:09:36] Speaker 02: I hope you're gonna help me. [00:09:37] Speaker 02: Given what evidence they had, and I think in particular, the direct targeted hostile disparagement of somebody in front of their coworkers, and not just disparaging her, but in a way that says she cares only about herself and none of you. [00:09:56] Speaker 02: That's a really horrible thing to say about somebody. [00:10:00] Speaker 02: And so with that evidence, how can we say it was irrational to say that [00:10:06] Speaker 05: because they're separate. [00:10:07] Speaker 05: We think the scales tip towards animus because they're separate burden because that you're talking about disparate treatment as it pertains to the animal. [00:10:17] Speaker 02: ultimate conclusion however however the steps it went through it made is showing you responded the board didn't say your response is invalid we're not going to consider it it said thank you for your evidence we are weighing the evidence on this record and and we've come to this factual conclusion it's not that you didn't present your case of you would have done it anyhow [00:10:40] Speaker 02: It's that they've they had to make a factual judgment here weighing the record when there's a really powerful piece of evidence that seems to have animus written all over it. [00:10:50] Speaker 05: But the the comment does not bear upon whether there was disparate treatment though. [00:10:55] Speaker 05: because the disparate treatment, the evidence that the board relies upon is the treatment of Mr. Hubbard. [00:11:00] Speaker 05: And when you look at the facts, facts to facts, Mr. Hubbard also went through the discipline process. [00:11:05] Speaker 05: He also received a final written warning. [00:11:07] Speaker 05: And in that final written warning was told, if you have another violation, you will be terminated. [00:11:13] Speaker 05: And then he had a violation. [00:11:14] Speaker 05: He had the exact same violation. [00:11:16] Speaker 02: I understand your story, but the board looks at it and goes, he had a [00:11:19] Speaker 02: seven cash drawer violations, and she had two cash drawer violations. [00:11:24] Speaker 02: I know you're counting the other things, but they're saying, look, the cash drawer stuff, at least as to the cash drawer stuff, you're much more flexible in your policy. [00:11:35] Speaker 05: There's no basis for making that statement in the sense that this is a progressive discipline case. [00:11:42] Speaker 05: You can't simply say, we're just going to look at cash handling and ignore the other 10 violations. [00:11:51] Speaker 02: I'm sorry, through the stages of violation here. [00:11:58] Speaker 02: I think there was confusion whether he even ever had a first violation. [00:12:02] Speaker 02: You let your company pile up three or four of them before you even did the first [00:12:08] Speaker 05: Well, they skipped the warning is what the evidence they moved to that actually would be more miss a more lenient towards miss keen at our lenient towards Mister hover does the board member ring. [00:12:21] Speaker 05: I think analyzes it correctly in a progressive discipline case when there's there's no basis and there's no explanation by the board. [00:12:28] Speaker 05: And this is the problem. [00:12:29] Speaker 05: This is a progressive discipline case. [00:12:31] Speaker 05: And yet the board ignores the totality of the progressive discipline. [00:12:35] Speaker 05: Hawaiian dredging holds that the board has to engage with the central factual issue, which is the entire circumstance in what she was here. [00:12:43] Speaker 02: I get you disagree with it. [00:12:45] Speaker 02: It definitely engaged with it and said, [00:12:48] Speaker 02: That's not how your progressive discipline, as we look at the record, that's not how your progressive discipline program works. [00:12:54] Speaker 02: You have a lot of flexibility. [00:12:56] Speaker 02: And we see some flexibility in what you did with Mr. Hubbard. [00:13:00] Speaker 02: And so we have to ask, why didn't you do flexibility here? [00:13:03] Speaker 02: And that's when they bring in the animus problem. [00:13:08] Speaker 02: And I understand your arguments that we're not deciding this. [00:13:10] Speaker 05: Well, again, I think that that mixes the burden, though, which is that disparate treatment is separate from animus. [00:13:17] Speaker 05: It is a separate, they're using it both on the premium fish case site, but also on the back end to try to rebut the employer's rebuttal case. [00:13:26] Speaker 05: And what we've shown, and again, I understand what you're saying, but what we've shown is that Mr. Hubbard was told, if you do it again, you're terminated. [00:13:36] Speaker 05: He did it again, he was terminated. [00:13:37] Speaker 05: And the same thing applied for Ms. [00:13:39] Speaker 05: Keen. [00:13:40] Speaker 05: I would submit that the board's analysis with regards to the discharges faulty for three reasons. [00:13:47] Speaker 05: One, it's not supported by substantial evidence. [00:13:49] Speaker 05: Two, in accordance with Hawaiian dredging, they failed to assess the totality, the critical point where we were saying, you can't separate cash handling violations and just say, oh, that's all that she did. [00:14:01] Speaker 05: because that's not why she was disciplined. [00:14:02] Speaker 05: It's not why she was discharged. [00:14:04] Speaker 05: She was discharged because she had 11 previous policy violations and three levels of discipline for that, which is more than the leeway that Mr. Hubbard was provided. [00:14:16] Speaker 05: And then upon violating her final written warning in the commit and do not violate policy again, she did it. [00:14:22] Speaker 05: I don't know what an employer is supposed to do in this situation when it says, if you do it again, we're going to terminate you. [00:14:29] Speaker 05: And the board has no qualms with that. [00:14:31] Speaker 05: They say that was a lawfully issued discipline. [00:14:35] Speaker 05: And then she does it. [00:14:36] Speaker 05: And now suddenly we violate the act. [00:14:41] Speaker 01: In the litany of violations with regards to Mr. Hubbard. [00:14:46] Speaker 01: I asked this question. [00:14:49] Speaker 01: Is a cash drawer discrepancy the same thing as a cash incident? [00:14:55] Speaker 01: Yes. [00:14:56] Speaker 01: So when I see March 5th cash incident, March 8, $10 cash drawer discrepancy, that appears to be the same. [00:15:08] Speaker 01: As I understand it, yes. [00:15:10] Speaker 01: Later on, $10 drawer discrepancy, March 29 cash incident, March 30. [00:15:16] Speaker 01: Same ones. [00:15:18] Speaker 01: As I understand it. [00:15:19] Speaker 01: There are three such double counts, it seems to me. [00:15:24] Speaker 04: Sometimes on our standard of review, we talk about running directly counter to the evidence and sometimes many, many times we talk about reviewing for substantial evidence. [00:15:33] Speaker 04: Do you have a sense of which of those we apply here? [00:15:38] Speaker 05: I think that the standard is substantial evidence. [00:15:40] Speaker 05: The board's order has to be supported by substantial evidence. [00:15:45] Speaker 02: We'll give you a couple minutes for rebuttal. [00:15:47] Speaker 05: All right. [00:15:47] Speaker 05: And on rebuttal, I'd like to talk about the union access issues. [00:15:52] Speaker 02: Well, actually, then why don't you, we'll give you a minute now on that so they get a chance to respond. [00:15:57] Speaker 05: Yeah, I would just like to say, so on both the notice reading and the access, the standard is severe, or severe pervasive and outrageous. [00:16:07] Speaker 05: That's what the UOP has to be. [00:16:08] Speaker 05: We don't have that here. [00:16:09] Speaker 05: Even by the board's own admission in the board's order, it declares that these are severe violations. [00:16:18] Speaker 05: So there's that problem. [00:16:19] Speaker 05: In addition to that, [00:16:22] Speaker 05: The big question that I have is, how is the union access issue, and in particular the board's reasoning for it, that the company or that the union must be allowed to respond to future misinformation by the company, how is it not solved by the resolution of the 83 question? [00:16:42] Speaker 05: Either Ms. [00:16:42] Speaker 05: Keene goes back to work and she's already been at work, she's been able to counter anything that the company would say, or [00:16:49] Speaker 05: or of course that doesn't stand and if the 83 doesn't stand, then there's no basis for the union access remedy when you say that. [00:16:58] Speaker 02: You had a list of adjectives about how the type of showing this needed for union access. [00:17:03] Speaker 02: Were those cases where access was accorded as a remedy for unfair labor practices or whether it was sort of upfront access requirements? [00:17:14] Speaker 05: Those are all access cases. [00:17:16] Speaker 02: I'm sorry, were any of them remedial cases? [00:17:18] Speaker 05: They were all remedial, union access cases. [00:17:21] Speaker 02: Found an unfair labor violation. [00:17:23] Speaker 05: And it's not surprising that almost all of those cases were, in fact, Gissell bargaining order cases. [00:17:31] Speaker 05: And we're not even close to Gissell bargaining order territory in this case. [00:17:40] Speaker 02: Thank you very much. [00:17:57] Speaker 02: Morning, Your Honors. [00:17:57] Speaker 03: May it please the court? [00:17:59] Speaker 03: I don't know. [00:18:00] Speaker 03: It might be afternoon right now. [00:18:01] Speaker 03: I'm not sure. [00:18:02] Speaker 03: Barbara Sheehy for the National Labor Relations Board. [00:18:04] Speaker 04: I'm going to start with Judge Walker's question about the... Do you want me to ask it or do you want me to try to... I mean, is there a specific... Other than what you asked about my... I guess I understand that plenty of lawful enterprises that do illegal things, sometimes very illegal things, the NLRA still applies to them. [00:18:24] Speaker 04: And as Judge Millett pointed out, it still applies to the companies whose employees have been hired illegally. [00:18:29] Speaker 04: But here we have, I think, criminal enterprise from top to bottom. [00:18:36] Speaker 04: Their raison d'etre is in complete violation of federal law. [00:18:42] Speaker 04: And it seems odd, maybe there's direct precedents that say this, but it seems odd if this enterprise was called like Hitman Inc. [00:18:51] Speaker 04: If we would, if the, if the board would issue an injunction that says like, you have to rehire this hitman, that would be a quite odd injunction for the federal government. [00:19:00] Speaker 03: So, um, I'm not sure I'm going to be able to give you a very satisfactory answer, partly because it hasn't raised the parties stipulated to it. [00:19:08] Speaker 03: So nobody talked about it. [00:19:09] Speaker 03: The board didn't speak to it. [00:19:09] Speaker 03: And I certainly don't want to speak on behalf of the board for what I, as far as my understanding would go, it would be one of the first times they've spoken on. [00:19:16] Speaker 03: a completely, as you said, illegal enterprise. [00:19:20] Speaker 03: But I would say it's possible, and I don't know how much of this is in the record, it's possible that it's not, depending on how it's structured, that it's not actually an illegal enterprise. [00:19:31] Speaker 03: So for instance, bear with me for one second. [00:19:36] Speaker 03: But I think in DC, for instance, [00:19:38] Speaker 03: They get around, I'm not sure it's been tested, but I think they get around some of the question about whether they're actually selling the product, selling marijuana, or whether you come in and you buy some sort of, I think it's like a t-shirt or something like that. [00:19:52] Speaker 03: And then as a gift, you get marijuana. [00:19:56] Speaker 03: So I do that. [00:19:57] Speaker 03: I have no idea if that's how this dispensary is set up. [00:20:00] Speaker 03: That can't be any more legal. [00:20:02] Speaker 03: I don't think that's been tested. [00:20:05] Speaker 03: Just suggesting that companies have tried to structure it. [00:20:11] Speaker 03: The board has not spoken on this. [00:20:13] Speaker 03: And so I think this is just sort of begging the question that if this is [00:20:16] Speaker 03: Um, if this is a threshold matter of, well, first of all, we'd say it was ten eat, right? [00:20:21] Speaker 03: That hasn't been, hasn't been raised by them. [00:20:23] Speaker 03: But if the court is inclined to say that's right, right. [00:20:27] Speaker 03: I'm sorry. [00:20:27] Speaker 03: Yeah. [00:20:28] Speaker 03: But if the court is saying, you know, this is an ultra virus action outside the statute. [00:20:34] Speaker 03: whether they raise it or not, I would say, please don't rely on anything that I'm saying on behalf of the board. [00:20:40] Speaker 03: Please send it back to the board for, in the first instance, for them to say something about whether they, so like I said, starting off in a relatively unsatisfactory way, I'm going to move to Judge Millett's question about the mootness. [00:20:54] Speaker 03: You've been able to keep track of all this. [00:20:56] Speaker 03: I'm just saying, you know, it's been a long time since I was back here, so I was sort of excited. [00:20:59] Speaker 03: So as to the moon is again, I'd start with it wasn't raised by the employer. [00:21:05] Speaker 03: The substantial business is jurisdiction. [00:21:08] Speaker 03: I'm sorry. [00:21:09] Speaker 03: It hasn't been raised by them. [00:21:09] Speaker 03: So again, we didn't see briefing on it. [00:21:11] Speaker 03: We didn't see anything like this. [00:21:13] Speaker 03: I didn't I did look at the district court injunction and I think opposing counsel I think is absolutely accurate. [00:21:18] Speaker 03: It is very, very close. [00:21:21] Speaker 03: I do think there is the question about the reinstatement part about whether it's an interim reinstatement [00:21:26] Speaker 03: And to the extent that there's any concern about it really, truly is duplicative and moot, I think once the two, so I think the court could enforce. [00:21:36] Speaker 03: I think the court could enforce the notice reading remedy. [00:21:40] Speaker 03: And then if there was a question on the part of the employer saying, listen, this is too close. [00:21:44] Speaker 03: We've already done this. [00:21:45] Speaker 03: We've already complied. [00:21:46] Speaker 02: Hang on. [00:21:46] Speaker 02: This notice reading was before the board ruled, correct? [00:21:50] Speaker 02: Yes, that's the purpose of the 10 jet where that this had happened. [00:21:52] Speaker 02: I mean, it was a general. [00:21:53] Speaker 03: They would have they would have to be certainly to be aware. [00:21:56] Speaker 03: Well, I mean. [00:21:57] Speaker 03: I assume they're aware, because the board is the one that authorized the general counsel to go for the tangent. [00:22:02] Speaker 02: So why would the problem be here? [00:22:05] Speaker 02: Why would the board nowhere address this? [00:22:09] Speaker 02: It issued a notice reading order when a notice reading had already happened. [00:22:14] Speaker 02: And you know, what everyone says about, you know, whether or notice readings are supposed to be extraordinary, how many actors you want to use, the board doesn't get to oppose too. [00:22:26] Speaker 03: No, but the board, let's be clear. [00:22:27] Speaker 03: The board did impose the first one. [00:22:28] Speaker 03: That was the district court. [00:22:30] Speaker 03: I mean, at the general counsel's request. [00:22:32] Speaker 03: Authorized by the board? [00:22:34] Speaker 03: The litigation is authorized by the board. [00:22:36] Speaker 03: Certainly, yes. [00:22:37] Speaker 03: The board authorizes the general counsel. [00:22:39] Speaker 03: But it's the court. [00:22:39] Speaker 03: It's the district court that ordered that, not the board. [00:22:43] Speaker 03: So the board should have grappled with that. [00:22:45] Speaker 02: I mean, I don't understand how the board can sort of have its cake and eat it too and authorize the general counsel to go get an agenda. [00:22:52] Speaker 02: We can't wait. [00:22:54] Speaker 02: for our decision to come out as the board. [00:22:56] Speaker 02: Go have her do this reading now or stand there while someone else does the reading. [00:23:01] Speaker 02: And you're gonna say, but we're gonna leave a comma out. [00:23:05] Speaker 02: that's in our work. [00:23:07] Speaker 02: A pause, a word, an adjective might change. [00:23:10] Speaker 02: Of course it's interim. [00:23:11] Speaker 02: The case, it has to be interim. [00:23:13] Speaker 02: We know what we're doing when we authorize these things. [00:23:15] Speaker 02: It has to be interim because they're still seeking a decision from the board. [00:23:19] Speaker 02: And then we're going to impose another notice reading thing without saying boo about the fact that we already got, if not 100%, 99.9% [00:23:32] Speaker 02: of what we asked for. [00:23:34] Speaker 02: I don't understand why it's not an obligation on the board, fully aware of. [00:23:38] Speaker 02: Why isn't that an independent, obvious public record on its face problem with the board decision here? [00:23:45] Speaker 03: Right, and I completely understand the aggravation with what the board did, but I think taking a step back, I don't think it's fair to. [00:23:54] Speaker 03: So when I say I assume the board knows, that's because they authorize the injunction, but I don't know, for instance, that the board is following the actual general counsel's litigation. [00:24:01] Speaker 03: I mean, absolutely it is. [00:24:04] Speaker 03: I don't, I honestly don't know about who [00:24:08] Speaker 03: I'm not, I don't, I don't know. [00:24:10] Speaker 03: I'm not sure. [00:24:11] Speaker 02: We have to send it back to the board. [00:24:14] Speaker 02: Is there any? [00:24:15] Speaker 02: Well, there's this is it in for them doing it a second time. [00:24:19] Speaker 03: So what I wanted to say that I didn't finish was that I'm not sure that it's fair. [00:24:24] Speaker 03: I honestly believe it was probably just an oversight on the part of the board that nobody raised it. [00:24:29] Speaker 03: The employer didn't say, wait a minute, we've already done this. [00:24:32] Speaker 03: Not to say that that's their fault, but as far as flagging it for them, and I haven't raised it. [00:24:39] Speaker 03: So the board either threw oversight or whatever, but I don't think there was a nefarious purpose where they decided, listen, we're gonna ask for it. [00:24:46] Speaker 03: And then we're going to ask, then we're going to order it there that I truly think it was remand. [00:24:50] Speaker 03: But you said remand. [00:24:52] Speaker 03: No, no, no. [00:24:52] Speaker 03: What I was going to say is I think what could happen is I think I think the court could enforce because to the extent that they were enforcing the second notice reading, there's no we know. [00:25:01] Speaker 02: And we know a notice reading has already occurred, and there's no dispute about it. [00:25:06] Speaker 02: And so what you're asking us to do is issue an order that would enforce notice reading number two. [00:25:12] Speaker 03: Right, but if there's a problem with this, so if the two notices are even slightly different, if the two notices are slightly different, if the employer wants to say, we've already done this, they can argue that in compliance. [00:25:23] Speaker 03: It doesn't have to be a remand. [00:25:24] Speaker 03: They could go to compliance and say, we're not going to read the notice. [00:25:27] Speaker 02: The question is, who had the burden here? [00:25:29] Speaker 02: But you're asking us to say, [00:25:32] Speaker 02: There can be two note, you can have to read it twice. [00:25:34] Speaker 02: You can have to read version A when it's interim, and then we're gonna make you read version two. [00:25:40] Speaker 02: B when it's no longer interim, and that's the only word that's gonna change. [00:25:44] Speaker 02: There's nothing in this record that would give us any basis. [00:25:49] Speaker 02: for concluding that that is appropriate, supported by the record or even desired by the board. [00:25:56] Speaker 02: So it seems weird to me to then for us to go, oh, let's just go ahead and enforce it and make the employer come back in and oppose it. [00:26:08] Speaker 03: And I guess I would say, I don't know exactly what the notice looks like. [00:26:12] Speaker 03: So I'm just really reluctant to say, just go ahead and don't enforce. [00:26:15] Speaker 03: It was good enough. [00:26:16] Speaker 02: We have the text. [00:26:16] Speaker 02: We have the text. [00:26:17] Speaker 02: They were reading the district court's order, which seems insane to me, but that's what the general counsel seemingly asked for. [00:26:22] Speaker 02: It has all the, you know, we can't do, we can't do, we can't do, we can't do. [00:26:26] Speaker 03: Right, but what I don't know is if there's any sort of like introductory remarks when that starts to say the district found that there was a likelihood that the board was going to prove that [00:26:38] Speaker 03: and then they list, we did this, we did this, we won't do this, we won't do this. [00:26:42] Speaker 02: I think, I think- I'm sorry? [00:26:44] Speaker 02: That's the risk of authorizing injunctive litigation on an issue. [00:26:48] Speaker 03: No, but I think, with all due respect, I think that that's a different notice if those introductory remarks, and I don't know if that's said. [00:26:55] Speaker 03: If that's not said, then I think I'm gonna- If it is. [00:27:00] Speaker 02: I'm not aware of any case. [00:27:02] Speaker 02: Board case or of ours, correct me if I'm wrong. [00:27:05] Speaker 02: Anyone's ever been told to do it twice. [00:27:07] Speaker 02: Do round A, preliminary one, and do round two, final one. [00:27:13] Speaker 03: Well, I don't know. [00:27:15] Speaker 03: That I'm not sure about, because we do have plenty of cases where there have been NJs that have issued and that have been notice readings. [00:27:23] Speaker 03: I know two of them that I've been involved with, for instance. [00:27:26] Speaker 03: And then there was enforcement and there was a notice. [00:27:28] Speaker 03: there was a H T H for instance in this court. [00:27:31] Speaker 03: I know H T H notice. [00:27:34] Speaker 03: What's up? [00:27:34] Speaker 03: It wasn't a second one. [00:27:35] Speaker 03: I don't know. [00:27:36] Speaker 03: I don't know. [00:27:36] Speaker 03: The district court ordered it. [00:27:37] Speaker 03: That was enforced whether there was compliance. [00:27:40] Speaker 03: I don't remember. [00:27:40] Speaker 03: But then the court ordered the ordered the notice reading that. [00:27:44] Speaker 03: But again, you may be right. [00:27:45] Speaker 03: It may not have actually happened in the district court. [00:27:47] Speaker 03: But I know there was a 10 J in that case and there was a notice reading ordered [00:27:52] Speaker 03: And it was ordered in court, again, factually. [00:27:55] Speaker 03: I'm not sure. [00:27:55] Speaker 03: But it certainly wasn't discussed by the court. [00:27:57] Speaker 03: So it maybe just sort of slipped through everybody's minds there. [00:28:01] Speaker 03: So I don't think, if that's what happened, I don't think this court was saying, this is fine. [00:28:06] Speaker 04: So are these district court injunctions a somewhat new phenomenon, or has this been very common practice for a very long time? [00:28:17] Speaker 03: The statutory provisions has existed. [00:28:19] Speaker 03: The 10J provision authorizing the general counsel to do this with the board, general counsel on its behalf. [00:28:25] Speaker 03: has existed forever. [00:28:30] Speaker 03: But whether any particular general counsel, so it's up to the general counsel is the one who asks the board, can we go ahead and do this? [00:28:38] Speaker 03: So I think the frequency with which you see the board, general counsel, seeking these injunctions fluctuates depending on the priorities of particular general counsels. [00:28:48] Speaker 03: So I don't know if that answers your question. [00:28:51] Speaker 03: It's not a new phenomenon. [00:28:53] Speaker 03: We have an office dedicated to 10 J injunctions. [00:28:55] Speaker 03: That's been around for a long time. [00:28:56] Speaker 03: That's not new. [00:28:58] Speaker 03: Like I said, the frequency fluctuates depending on priorities of particular general councils. [00:29:03] Speaker 02: Just to make crystal clear, your position is that their claim about notice reading is not moot and you are asking us to enforce it. [00:29:15] Speaker 03: I believe at this stage, that's without seeing everything and understanding exactly what was read previously. [00:29:21] Speaker 03: I think I'd have to say that. [00:29:22] Speaker 03: Obviously subject to correction by this court. [00:29:27] Speaker 03: But no, yes, that would be my position at this point. [00:29:30] Speaker 03: And then I just want to say two quick things. [00:29:32] Speaker 03: I see my time is over, but I'd like to say one thing or two. [00:29:35] Speaker 03: So just very, very quickly, on the rebuttal case, I think it's very important to focus on wood versus [00:29:45] Speaker 03: could. [00:29:46] Speaker 03: So I think opposing counsel said several times that they came forward and they showed we followed the discipline policy. [00:29:51] Speaker 03: And obviously the board disagrees that they rigidly adhere to that. [00:29:55] Speaker 03: So that we could have fired her. [00:29:58] Speaker 03: That is not the question. [00:29:59] Speaker 03: The employer had to show by proponents of the evidence that they would have done so. [00:30:03] Speaker 03: And I think there was also a statement that there was no information at all or nothing in the record to show that there was any drifting from the policy. [00:30:12] Speaker 03: And that's just not accurate. [00:30:14] Speaker 03: I would [00:30:14] Speaker 03: We put this in the brief, but I'm just going to say it one more time here. [00:30:17] Speaker 03: I think it's around Joint Appendix 109. [00:30:20] Speaker 03: There's the series of emails that starts right after she commits that August 22nd cash handling incident that prompted everything, that triggered her separation, where there is confusion among everybody involved with discipline. [00:30:34] Speaker 03: There's confusion from the HR director who is on site, or maybe not on site, but who oversees the Gilbert facility. [00:30:40] Speaker 03: That very person says, Anissa just had another this, cash handling, what do we do? [00:30:47] Speaker 03: There's a discussion then among supervisors and other district managers on how to treat that, where they say, you know, it's cash handling, it's different, not sure. [00:30:55] Speaker 03: I think you could do this. [00:30:57] Speaker 03: So there's that evidence. [00:30:58] Speaker 03: There's Cook's statement that she says to Keene when they present her with the cash handling violation. [00:31:04] Speaker 03: And they say, she says, I think it's four. [00:31:06] Speaker 03: It's not a big deal. [00:31:07] Speaker 03: Again, not for truth of the matter, but certainly there's confusion on what exactly how cash handling incidents are true. [00:31:14] Speaker 04: This course said, [00:31:15] Speaker 04: Somewhat recently in Circus Circus, right line second prong requires the board to examine first whether the employer reasonably believed the employee committed the acts supporting discipline. [00:31:28] Speaker 04: I take it that is not so much in dispute here. [00:31:31] Speaker 04: And second, whether the decision was consistent with the company's policies and practice. [00:31:39] Speaker 04: Do you dispute that the decision here was consistent with the company's policies and practice? [00:31:46] Speaker 03: I would say that the decision was not consistent with its progressive discipline policy unless you just say we invoke that discretionary clause that's at the beginning of our policy all the time. [00:31:59] Speaker 03: So I think it's consistent with them exercising flexibility and not actually following the four step. [00:32:07] Speaker 03: So I'm not sure that answers the question. [00:32:08] Speaker 03: I don't think if you, if we assume for the purposes of that question that the policy or that the [00:32:12] Speaker 03: practice that you're asking me about. [00:32:14] Speaker 03: Is they strictly adhere to a four step process before the fourth step being discharged? [00:32:20] Speaker 03: Absolutely not. [00:32:21] Speaker 03: I don't think it was consistent with that. [00:32:22] Speaker 03: If the question is, is the practice sorry, go ahead. [00:32:27] Speaker 03: But if the question is, did they exercise flexibility with Hubbard [00:32:35] Speaker 03: consistent with the reserved discretion within the policy, I'd have to say yes. [00:32:41] Speaker 03: I don't think that the board doesn't find that they went through as rigidly the steps, but the policy reserves to the employer the discretion to do that. [00:32:51] Speaker 03: So I'm not exactly sure how to answer that question. [00:32:53] Speaker 03: So they technically follow the policy, but not in the way that they claim they follow the policy. [00:32:57] Speaker 04: Are we supposed to apply this test as circus, circus laid it out? [00:33:01] Speaker 04: Is that the right inquiry? [00:33:03] Speaker 04: I'm sorry? [00:33:04] Speaker 04: I missed the last part about you. [00:33:05] Speaker 04: Is that the right inquiry? [00:33:09] Speaker 04: Whether the decision was consistent with the company's policies and practices. [00:33:13] Speaker 03: So I know that the employer sort of raises circus, circus, maybe in like a footnote, and we say they didn't raise that to the board. [00:33:20] Speaker 03: And what I'm a little confused on in circus, circus, I don't know what it gets. [00:33:24] Speaker 03: Because that's a good faith defense case, as far as I understand it, which isn't, that wasn't the employer's rebuttal case here, as far as I understood it. [00:33:34] Speaker 03: I think if you applied circus, circus, it doesn't change the results because I don't think that we have, I don't think they have shown that any damage to the board's decision on the basis of that second part of circus, circus. [00:33:45] Speaker 03: I don't think that they were claiming a good faith defense. [00:33:48] Speaker 03: I don't think the board treated any of their rebuttal case. [00:33:52] Speaker 03: as a good faith defense, traditionally good faith defenses, I thought you actually did something wrong. [00:33:57] Speaker 03: So I terminated you. [00:33:58] Speaker 03: I terminated you for x. And I really had a good faith belief that you did x. It's not what happened here. [00:34:04] Speaker 03: So I'm a little confused, actually, on why circus circus is sort of in the mix. [00:34:08] Speaker 03: And we were happy enough to just say, hey, you didn't raise it. [00:34:11] Speaker 03: So the Lord didn't address it. [00:34:13] Speaker 03: But then I understand they came back and said, well, we did raise it. [00:34:15] Speaker 04: I'm not sure I read circus circus to require us [00:34:22] Speaker 04: you distinguish between could have and would have. [00:34:27] Speaker 04: And I'm wondering if Circus Circus requires the company here to show that it would have. [00:34:40] Speaker 03: I guess then if that's the distinction, then that would be significant then. [00:34:44] Speaker 03: I guess I didn't understand that. [00:34:46] Speaker 03: So then if Circus Circus, if you can find that then to what is a good faith, [00:34:51] Speaker 03: that is very different than what they did here because traditionally under right line. [00:34:55] Speaker 03: What they they've invoked the traditional defense, which is what we did was OK. [00:35:00] Speaker 03: We told you why we did it. [00:35:02] Speaker 03: It's not the way to get. [00:35:03] Speaker 03: She actually did it and it was a legitimate reason for terminating her employment. [00:35:08] Speaker 03: And. [00:35:10] Speaker 03: then the board imposes the obligation was the board wants the general Council's minutes from the board is going to impose an obligation on the employer to prove by the evidence. [00:35:19] Speaker 03: I'm you off your legitimate reason now you also you have to show that you would have done it so that's a different defense than than. [00:35:26] Speaker 03: under circus circus which is the good faith basis which I don't I don't understand I don't read any of their arguments either to the administrative law judge to the board or to hear that there was any good faith nobody's disputing that she had a cash that she was $20 short on her drawer on August 22nd nobody disputes that they're not wrong they're not wrong so I don't think circus circus comes into play then as a good faith defense because it's not it's not it's not that defense if that means [00:35:57] Speaker 03: Um, and then the last thing I will say. [00:36:01] Speaker 03: If I'm, I promise I'm going to keep it under 30 seconds. [00:36:03] Speaker 03: It's just on the union access issue. [00:36:05] Speaker 03: I know member ring says this as well in his descent that there's no need for the union. [00:36:11] Speaker 03: be able to come in and speak to the employees because if she's back at work, everything is all set. [00:36:16] Speaker 03: Everything's fixed. [00:36:17] Speaker 03: But I think that we don't have any idea if a needs a keen. [00:36:20] Speaker 03: I know she's back interim. [00:36:23] Speaker 03: We don't know how long she's going to stay. [00:36:25] Speaker 03: There's evidence in the district court record that she actually was looking to go back to graduate school. [00:36:28] Speaker 03: And but I think more importantly, [00:36:30] Speaker 03: That puts a huge onus on the person who stood up to organize for the union, suffered separation from the termination to then just assume that that same person is going to go back and do the same thing again and start organizing and giving out all the information on the union, put her neck on the line again. [00:36:47] Speaker 03: I think that that is not a [00:36:49] Speaker 03: reasonable view of Keen's responsibility. [00:36:54] Speaker 03: I don't think the remedy should be changed just because we think that Keen can take care of it, so. [00:37:03] Speaker 02: Any further questions? [00:37:04] Speaker 02: May I ask for full enforcement? [00:37:05] Speaker 02: Thank you. [00:37:07] Speaker 02: I'll give you two minutes. [00:37:13] Speaker 05: I obviously want to start right where it ended. [00:37:16] Speaker 05: The problem with this case is, I mean, you can look at the board's order at page five. [00:37:21] Speaker 05: It orders it because the employer deprived its employees of access to accurate information about a union. [00:37:29] Speaker 05: I don't understand how the notice posting doesn't take care of that. [00:37:32] Speaker 05: We're talking about 381 statements, a threat, a promise, and an impression of surveillance. [00:37:38] Speaker 05: The notice. [00:37:38] Speaker 02: They're right on the discharge. [00:37:44] Speaker 02: So if you lose on that, [00:37:46] Speaker 02: than discharging the sole union organizer right at a critical time. [00:37:56] Speaker 02: And not just discharging her, trashing her reputation and name in front of all the employees and then sending her out. [00:38:03] Speaker 02: They're just letting her come back in and posting a poster isn't going to fix [00:38:10] Speaker 02: The message from an employer, and that wasn't even the only unfair labor practice they engaged in, or else you're going to lose your tips, you're going to lose your benefits. [00:38:21] Speaker 02: We'll just tag up a poster here and everything's hunky-dory. [00:38:26] Speaker 02: That's just not realistic. [00:38:28] Speaker 02: I take it that big a workplace. [00:38:30] Speaker 02: And so it's really, as I read the board decision, [00:38:35] Speaker 02: We've got to decide this. [00:38:36] Speaker 02: We've got to be fair to what the board decided. [00:38:37] Speaker 02: And that was that this is, you know, you sort of struck a dagger at union organizing here. [00:38:44] Speaker 02: Maybe a couple times you drove it into the heart. [00:38:47] Speaker 02: And so it's not enough just to tack up a poster. [00:38:50] Speaker 05: So again, a single discharge does not sustain a union access remedy. [00:38:56] Speaker 05: And there's no case cited by the board where that's the case. [00:38:58] Speaker 05: But even beyond that, [00:39:00] Speaker 05: I think that the biggest problem that I have is, again, A, the board did not base it upon a termination of employment. [00:39:14] Speaker 02: Discharging her, and we'll do the same to anyone else who tries to organize here. [00:39:19] Speaker 02: A poster would be enough? [00:39:22] Speaker 05: One discharge? [00:39:24] Speaker 05: One discharge would not be enough. [00:39:27] Speaker 02: I'll give you a couple minutes to finish what you want to say. [00:39:33] Speaker 02: If you can have a union access remedy with one discharge, at least in the scenario I have posted. [00:39:42] Speaker 05: I don't believe that you can. [00:39:43] Speaker 02: I'm sorry, I misunderstood you. [00:39:44] Speaker 02: I thought you said that if they said we're firing here on the way out, they said, and this same thing will happen to anyone else who tries to organize in this shop. [00:39:52] Speaker 05: Well, I guess in that case, I think that it's possible. [00:39:57] Speaker 02: But you could have for one. [00:39:59] Speaker 02: I think that it isn't a numbers. [00:40:00] Speaker 05: If it's surrounded by other threats, and that is a hallmark violation of itself, right? [00:40:07] Speaker 05: The other 8A1 violations here aren't hallmark violations that are severe, pervasive, and outrageous. [00:40:13] Speaker 05: There are violations of the act, yes, but they're not severe, pervasive, and outrageous. [00:40:17] Speaker 05: If you compare the union access cases that the both sides [00:40:23] Speaker 02: was on the mindset of employees. [00:40:27] Speaker 02: We could debate all day how this was interpreted by the employees, but they sort of made the decision that on this record, a clear message was sent, just as clear as if they said, we'll do the same thing to anybody else. [00:40:41] Speaker 02: If that's what they found. [00:40:44] Speaker 05: But that is not what the board found here. [00:40:46] Speaker 05: The board simply found that there were these three. [00:40:49] Speaker 05: This is a 53-day course of time. [00:40:53] Speaker 05: The three statements that were alleged to be unlawful all occurred in one 30 minute meeting. [00:41:00] Speaker 02: Yeah, they're pretty terrible meeting where she's disparaging Ms. [00:41:02] Speaker 02: Keene in front of her employees. [00:41:05] Speaker 02: She's out to hurt you for her own self-interest. [00:41:08] Speaker 05: I encourage you to review the cases that the board cites in support of the union access remedy because those cases don't just involve one 30 minute meeting. [00:41:18] Speaker 05: and determination a month plus later, they involve a consistent, truly severe pervasive, where every day or every week there is a new violation, there is something new where the employer is expressing that it doesn't want the union, but that doesn't exist here. [00:41:34] Speaker 02: Well, if the board finds that this, like we need to impose a remedy that cures the violation. [00:41:42] Speaker 02: I said, this is what's needed. [00:41:43] Speaker 02: This is a small shop. [00:41:45] Speaker 02: And this was their first effort at union organizing. [00:41:48] Speaker 02: And we need it. [00:41:51] Speaker 02: We can't cure the problem. [00:41:53] Speaker 02: If that's what they find, we're going to say, sorry, you have to wait until the problem is 10 times worse. [00:42:01] Speaker 02: I get that you need that to cure it, but you just don't get to cure it. [00:42:04] Speaker 05: But that's not what they say. [00:42:05] Speaker 02: They say that the access... You hear it because of the consequences, what the messaging is that comes when you discharge a union employee, and not just discharge, you drug a reputation through the mud. [00:42:16] Speaker 05: No, respectfully, Your Honor, on page five, the board offers its sole justification, which is that the employer deprived its opportunities of access to accurate information about a union. [00:42:28] Speaker 02: We read it in the context of all the findings that they've made. [00:42:32] Speaker 02: We don't just pick one sentence out at a time and look at it. [00:42:35] Speaker 02: It's not how we read agency decisions. [00:42:37] Speaker 05: Fair, but under this court's precedent, the board has to explain why the extraordinary remedies are necessary. [00:42:47] Speaker 05: And the sole explanation that it gives is that there was misinformation and it had to be corrected. [00:42:53] Speaker 05: Well, the posting and frankly, the notice reading from the district court [00:42:57] Speaker 05: resolves anything that was said previously. [00:43:00] Speaker 05: And so this remedy that they're seeking, the reason that they're seeking it, is based upon some future unknown conduct that maybe the company will again violate the law. [00:43:09] Speaker 05: But that can't be the basis for a union access remedy. [00:43:13] Speaker 02: I'll ask you the same thing. [00:43:14] Speaker 02: So do you think your notice reading claim is moot? [00:43:18] Speaker 02: You've satisfied it. [00:43:20] Speaker 02: You can't be required to do it again. [00:43:22] Speaker 02: Or do you agree that the way for us to deal with that would be to [00:43:27] Speaker 02: Assuming we agree with the board on its other claims that to enforce the board's order and let you fight it out on remand. [00:43:36] Speaker 02: or in the compliance stage? [00:43:38] Speaker 05: I think that it's mooted. [00:43:40] Speaker 05: And if it's not mooted, in fact, it's mooted in practice in the sense that the message has already been sent to the employees. [00:43:47] Speaker 05: And so what is the point of sending it again? [00:43:49] Speaker 05: And even in this case, if the board affirms the order, or even in part, there will be a notice posting that is, again, issued in this case. [00:43:58] Speaker 05: And so there will be a remedy. [00:44:00] Speaker 05: It is not as though the court makes its decision and nothing happens. [00:44:04] Speaker 01: Mr. Gilder, I'm sorry. [00:44:05] Speaker 01: A moment ago you said that all the prior access cases involved a series of significant violations. [00:44:12] Speaker 01: Did you also say earlier on that they were all 8A3 cases? [00:44:17] Speaker 05: There are, I believe, one or two that don't involve 8A3s, but they involve [00:44:23] Speaker 05: hallmark violations, threats of plant closure, threats of job loss, things of that nature. [00:44:28] Speaker 05: They're serious. [00:44:30] Speaker 05: And then there's this other culture where the board finds that the employer has some serious goal to constantly go at the employees and destroy the union. [00:44:44] Speaker 05: And I submit that doesn't. [00:44:45] Speaker 01: When you referred to Gissell, though, saying this is nowhere near a Gissell case, that took that to mean that all the others were. [00:44:53] Speaker 05: it that the I believe that the other access cases that are cited. [00:44:59] Speaker 05: Well, stern produce was against the case. [00:45:01] Speaker 05: United dairy farmers cooperation oddly enough was a case that was so severe that the board contemplated issuing a non majority bargaining order. [00:45:11] Speaker 05: I mean, that's the level of conduct. [00:45:13] Speaker 01: There were 885s. [00:45:14] Speaker 05: There were 883s, I believe, in both of the, in the United Dairy case. [00:45:19] Speaker 05: I don't recall if there was in the Stern case. [00:45:21] Speaker 05: I know that there were 885s or 883s in the United Dairy. [00:45:26] Speaker 02: Thank you. [00:45:26] Speaker 02: Thank you very much. [00:45:27] Speaker 02: The case is submitted.