[00:00:00] Speaker 01:
K122.1288 et al.

[00:00:04] Speaker 01:
Cadillac of Naperville, Inc.

[00:00:05] Speaker 01:
Petitioner vs. National Labor Relations Board.

[00:00:08] Speaker 01:
Mr. McHarg for the petitioner, Ms.

[00:00:10] Speaker 01:
Campbell for the respondent.

[00:00:16] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:00:19] Speaker 04:
My name is Michael Patrick McHarg, Sr.

[00:00:21] Speaker 04:
on behalf of the Cadillac of Naperville.

[00:00:25] Speaker 04:
I think as your honors are well aware, this case has what could best be described as a Byzantine procedural posture.

[00:00:35] Speaker 04:
Having been here once before, remanded, reversed by the board, brought back, and then in the middle of my appeal, changed by the board yet again.

[00:00:47] Speaker 04:
Nonetheless, here we are.

[00:00:49] Speaker 04:
But really to me, this case comes down to- You haven't argued for another remand.

[00:00:54] Speaker 04:
We don't want to do more.

[00:00:57] Speaker 04:
I think, to be honest, Your Honor, A, we think we can win either way.

[00:01:02] Speaker 04:
But B, I don't want to mislead this court.

[00:01:05] Speaker 04:
I think my client has some litigation exhaustion.

[00:01:09] Speaker 04:
So we'll just make our argument and understand where we are.

[00:01:15] Speaker 04:
Under any standard, I know why in the last emerges before the Fifth Circuit.

[00:01:20] Speaker 04:
So perhaps even the board standard remains unclear.

[00:01:26] Speaker 04:
We're still just dealing with common sense in the workplace.

[00:01:30] Speaker 04:
What kind of behavior can an employee get away with and be left without punishment?

[00:01:42] Speaker 04:
The, you know, under the Atlantic standard, you have this question of where's the place?

[00:01:50] Speaker 04:
Well, the law is inconsistent on that.

[00:01:52] Speaker 04:
On the one hand, they say inside the office, you know, it's heads we win, tails you lose.

[00:01:58] Speaker 04:
In an office, we win.

[00:02:00] Speaker 04:
Outside an office, we win.

[00:02:02] Speaker 04:
Then the question comes up of the subject matter.

[00:02:06] Speaker 04:
And then to us, we take most seriously the subject matter of the nature of this outburst.

[00:02:16] Speaker 04:
What happened here was extreme and directed at the owner of the company in his very own office.

[00:02:28] Speaker 04:
under either time the board failed to take into consideration exactly what happened in that office.

[00:02:38] Speaker 01:
And just to be clear, when you say under either standard, there's no different arguments you would make under an Atlantic steel than the right line.

[00:02:46] Speaker 01:
You're making the same points here under both, that you should win under either standard.

[00:02:50] Speaker 01:
That's correct.

[00:02:51] Speaker 01:
There's nothing else that you would argue if officially we were applying Atlantic steel.

[00:02:56] Speaker 02:
Thank you, Your Honor.

[00:02:58] Speaker 02:
So under right line, right, there's two steps, prima facie case that the action of discharge was out of animus, and second, whether the employer would fire the employee anyway.

[00:03:10] Speaker 02:
It seems to me what you've been saying today fits mostly in the second pocket, that because of the severity of this statement, you would have fired him anyway.

[00:03:20] Speaker 02:
My question is,

[00:03:22] Speaker 02:
Are you making an argument that there is no evidence of animus that the board could rely on for the prima facie for step one under right line?

[00:03:33] Speaker 04:
If we were analyzing the case under right line, I believe

[00:03:37] Speaker 04:
we have demonstrated that there, one, that there was no nexus, that the board relied upon a June 29th conversation for, I believe there was a September 17th discharge, a throwaway comment that- So I agree we can nitpick about some of the pieces of evidence.

[00:04:02] Speaker 02:
And in this footnote, the board cited six.

[00:04:04] Speaker 02:
The one that really stood out to me is just what happened on the morning of the firing, right?

[00:04:09] Speaker 02:
Vespicus comes in and the, I hope you forgive me for paraphrasing, but Lascaris basically says, you've been the ringleader of this strike and I don't want you to work here anymore.

[00:04:24] Speaker 02:
It seems pretty explicit statement that he is not a fan of Vespicus because he's participated in the strike.

[00:04:32] Speaker 04:
Well, he was discussing that with the entire, I mean, the entirety of the union leadership, right?

[00:04:36] Speaker 04:
The business agent was there.

[00:04:37] Speaker 04:
The president of the union was there.

[00:04:39] Speaker 04:
Mr. Bizbikus was there.

[00:04:41] Speaker 04:
Lascaris is trying to negotiate to remove all of the strikers at that time.

[00:04:45] Speaker 04:
So you're correct, Your Honor.

[00:04:47] Speaker 04:
He was telling them that he was trying to offer some sort of settlement to get them to go elsewhere to work.

[00:04:54] Speaker 04:
That is correct.

[00:04:56] Speaker 04:
And then Bizbikus calls him a liar.

[00:04:59] Speaker 04:
Frank gets angry and then the whole side show starts.

[00:05:06] Speaker 01:
It's not a settlement.

[00:05:09] Speaker 01:
The concern from the board was that Mr. Lascaris was explicit that he didn't want any union members working in his shop now and union members that went on a strike.

[00:05:21] Speaker 01:
He doesn't want any of them there.

[00:05:22] Speaker 04:
That's correct.

[00:05:23] Speaker 01:
The conversation was hostile.

[00:05:26] Speaker 01:
their exercise of their rights under the NLRA to both join a union and engage in collective action like a strike?

[00:05:33] Speaker 04:
I do not deny your honor, but it is more than that.

[00:05:40] Speaker 01:
Finish your case.

[00:05:40] Speaker 01:
On animus?

[00:05:42] Speaker 01:
Jerry?

[00:05:42] Speaker 01:
On animus?

[00:05:44] Speaker 01:
That's correct.

[00:05:46] Speaker 01:
In response to Judge Garcia's question, you are just focused on we would have fired him anyhow.

[00:05:51] Speaker 04:
We would have fired him anyhow.

[00:05:53] Speaker 04:
That's correct.

[00:05:54] Speaker 04:
It would be a difficult case for us to say that there was no right.

[00:06:01] Speaker 03:
I'm just trying to make sure I understand the context completely here.

[00:06:05] Speaker 03:
It's not that the way that the board's analysis went.

[00:06:12] Speaker 03:
It's not the case that

[00:06:16] Speaker 03:
of hibiscus, butchering his name, I'm sure that his behavior couldn't be subject to any discipline, right?

[00:06:27] Speaker 03:
They weren't saying that under a right line or Atlantic steel, like nothing could be done to him.

[00:06:34] Speaker 03:
The question was really whether determination was appropriate, right?

[00:06:39] Speaker 03:
That's correct.

[00:06:42] Speaker 03:
And so, so

[00:06:46] Speaker 03:
How, I guess, how do you win when there was no evidence that the company had ever terminated anyone for saying anything similar and that the company never produced a code of conduct that would justify termination?

[00:07:06] Speaker 04:
I understand your question, Your Honor.

[00:07:07] Speaker 04:
As we have stated, I believe in both of our briefs,

[00:07:14] Speaker 04:
There's certain conduct that you simply aren't going to be able to replicate.

[00:07:20] Speaker 04:
There are certain things that a standard of conduct is not necessarily, as we argue in our brief, going to say, don't commit a felony or wear pants to work.

[00:07:31] Speaker 04:
But if you violate certain common sense principles, you're going to lose your job, right?

[00:07:38] Speaker 04:
I had a situation once where a guy was cleaning his rifle at his work

[00:07:41] Speaker 04:
station we didn't necessarily have a don't clean your rifle at work and pointed at your co-workers but did you have any code of conduct at all though i believe there was a written code of conduct i don't believe it is in i don't believe we submitted it into evidence of seven years ago i don't recall i'm sorry

[00:08:03] Speaker 04:
I believe we just dragged the code of conduct out through the testimony of Mr. Lascaris.

[00:08:10] Speaker 04:
And screaming a vile epitaph, climbing around his desk, we thought at the time warranted summary information.

[00:08:20] Speaker 01:
Climbing around his desk, the ALJ found that he sort of muttered this on his way out the door.

[00:08:28] Speaker 01:
Are you challenging the Yeas's fact findings?

[00:08:30] Speaker 04:
We can't do that really.

[00:08:32] Speaker 04:
It's a practical matter.

[00:08:33] Speaker 04:
We don't think he found it as a murderer.

[00:08:35] Speaker 04:
I think that it was on the way out.

[00:08:38] Speaker 04:
He said on the way out the door was the discussion between the business agent and the employee about whether or not they heard the discussion between Lascaris and Mr. Bisbegas.

[00:08:54] Speaker 01:
Questions?

[00:08:56] Speaker 04:
we'll wait for rebuttal.

[00:08:58] Speaker 04:
Thank you.

[00:08:58] Speaker 01:
Thank you.

[00:09:21] Speaker 00:
Greetings, Your Honors, and may it please the court.

[00:09:22] Speaker 00:
My name is Elizabeth Campbell, and I represent the National Labor Relations Board.

[00:09:27] Speaker 00:
After a highly contentious strike, Cadillac of Neighborville fired Mr. John Bespikas, who represented the company's mechanics as their union steward while he was attempting to negotiate return to work procedures.

[00:09:40] Speaker 00:
The evidence of the company's hostility towards Mr. Bespikas' union activity is overwhelming.

[00:09:46] Speaker 00:
In the six intervening years, the board's conclusion has never wavered.

[00:09:50] Speaker 00:
The determination of Mr. Biskus violated Section 8A3 and one of the National Labor Relations Act.

[00:09:57] Speaker 00:
It is long past time to remedy that violation.

[00:10:01] Speaker 03:
You would agree that the company could have been justified in disciplining Mr. Biskus, right?

[00:10:16] Speaker 03:
imposing some discipline, right?

[00:10:18] Speaker 00:
Your honor, I can't speak for the board on what it might have done had the employer disciplined in a lesser manner.

[00:10:28] Speaker 03:
I'm not asking you what they might have done, but that that would be a reasonable action that could be sustainable under board law.

[00:10:39] Speaker 00:
Under board law, an employer can discipline an employee for misconduct.

[00:10:47] Speaker 00:
Full stop.

[00:10:47] Speaker 00:
That's not really a question.

[00:10:49] Speaker 00:
An employer is not forbidden ever from disciplining an employee from misconduct unless it's done with anti-union animus or unless the employee retained the protection of the act under the Atlantic Steel Analysis at the time when they engaged in the discipline.

[00:11:08] Speaker 01:
What I'm a little confused about is, so I came here last time and you said you're supposed to apply right line.

[00:11:21] Speaker 01:
The board did Atlantic Seal and then the board changed its mind and said we're gonna do right line.

[00:11:26] Speaker 01:
We remanded for right line.

[00:11:27] Speaker 01:
They applied right line and now it comes here again and now they're saying in line the last two years actually.

[00:11:33] Speaker 01:
We're going back to Atlantic Seal.

[00:11:36] Speaker 01:
And lion elastomeres said, not only are we going to apply Atlantic steel, we're making this decision retroact, which means lion elastomeres applies to this case.

[00:11:49] Speaker 01:
And so how can we, he doesn't want to, I'll treat him like a ping pong ball here, right?

[00:11:57] Speaker 01:
They don't want to keep going back and forth, but you all keep changing the rules of the game.

[00:12:02] Speaker 01:
And this is agency review, not just a court review.

[00:12:06] Speaker 01:
And it seems hard for me to understand how we can uphold a decision under right line when the board has said that's not the correct law anymore.

[00:12:20] Speaker 00:
I understand, Your Honor.

[00:12:21] Speaker 00:
I think in terms of the retroactivity analysis, the board law is quite clear that when the board makes a decision that's retroactive, that absolutely applies to all

[00:12:32] Speaker 00:
of cases pending before the agency.

[00:12:33] Speaker 00:
Applied to cases pending in court.

[00:12:38] Speaker 00:
The board has discretion to ask for a remand when a case is in court, when the agency issues a change in law.

[00:12:47] Speaker 00:
Here the agency acted very reasonably, I think this court would agree, given the fact that this is a very unique set of circumstances.

[00:12:58] Speaker 00:
So in particular,

[00:13:00] Speaker 00:
You're right, your honor.

[00:13:01] Speaker 00:
The judge here originally applied right line and right line itself remains good law.

[00:13:06] Speaker 00:
I would know it's correct.

[00:13:08] Speaker 00:
It would not necessarily be applied in cases like this moving forward, but a right line motive analysis is still a proper way to find a violation under Section 83 and one.

[00:13:18] Speaker 00:
And so in that sense, that makes this case unique.

[00:13:20] Speaker 00:
And in addition, this case is also unique in the sense that the standard that the board has now adopted in line elastomers was a preexisting standard.

[00:13:30] Speaker 00:
So Atlantic Steel has already been applied in the facts of this case in the 2019 decision in order before you.

[00:13:37] Speaker 00:
That's a very unusual circumstance when the board or any agency changes law.

[00:13:43] Speaker 00:
very typical that the law that it changes to has already been applied to the facts before the court.

[00:13:49] Speaker 00:
So in this case, the agency did choose an extra sentence discretion to stand behind the decision in order before you analyzed under right line.

[00:14:00] Speaker 00:
And I think it's important to keep Mr. Bespikis in mind.

[00:14:04] Speaker 00:
I think the concerns about his failure to receive the remedy to which he is entitled under the act

[00:14:12] Speaker 00:
Another remand would not be in the interest of justice.

[00:14:15] Speaker 00:
Pam, for this court, for the board's response.

[00:14:16] Speaker 01:
We also need to keep the employer in mind, too.

[00:14:18] Speaker 01:
They shouldn't be drugged round after round after round after round.

[00:14:22] Speaker 01:
It's not, I understand your point about Mr. Bisbeckis, but it's also for the employer unfair when the board keeps changing the rules of the game.

[00:14:31] Speaker 00:
Correct, Your Honor, which was another reason to stand behind the decision and order before this court, which is under right line.

[00:14:39] Speaker 00:
I'll note that the employer has, from the very beginning, in its very first post-hearing brief to the ALJ, has asked for right line to apply to the facts of this case.

[00:14:49] Speaker 00:
It continues to not insist on a remand.

[00:14:53] Speaker 00:
And right line is being applied.

[00:14:55] Speaker 01:
It's supposed to apply on appeal the law and, in fact, at the time of the appeal.

[00:15:00] Speaker 01:
That's where I'm, I understand the arguments in that case, but so you're asking us to apply the law that's not in effect at the time of appeal, or are you asking us to decide this under Atlantic steel based on the prior application of Atlantic steel?

[00:15:13] Speaker 01:
I believe it doesn't matter either way, either they win or you win either way.

[00:15:18] Speaker 00:
My answer to your question, Your Honor, is yes.

[00:15:20] Speaker 00:
I think you can do any of the above.

[00:15:23] Speaker 00:
Here, right line itself remains good law.

[00:15:26] Speaker 00:
Right line is,

[00:15:28] Speaker 02:
unlawful motivation situation correct your honor but the court the board has had opportunities to apply both an answer you said earlier would mean it's the right test for this case because you said when the board declares one of its decisions retroactive that's only retroactive as cases pending before the board

[00:15:51] Speaker 02:
And this case was final and on appeal when this new decision came around, right?

[00:15:55] Speaker 00:
Correct, Your Honor.

[00:15:57] Speaker 00:
Well, I want to be very careful with my language here.

[00:16:00] Speaker 02:
I appreciate you still would have discretion to ask us for a remand.

[00:16:04] Speaker 00:
Correct.

[00:16:05] Speaker 02:
But it does not apply of its own force in a court.

[00:16:08] Speaker 00:
There is an understanding that when

[00:16:10] Speaker 00:
For example, the record is filed with the court.

[00:16:14] Speaker 00:
The board doesn't have jurisdiction.

[00:16:18] Speaker 00:
So that would be an argument.

[00:16:19] Speaker 00:
I would not want to suggest that the board would not be able to seek a remand if it wanted to.

[00:16:29] Speaker 00:
However, in this case,

[00:16:35] Speaker 00:
agency has chosen not to seek a remand and for good reason, and stands behind the decision in order currently before this court.

[00:16:42] Speaker 00:
That being said, if this court is uncomfortable applying right line and General Motors, given that line elasmers is good law, I think the Wyman-Gordon case law that is good law across the circuits and that the DC Circuit has relied on repeatedly,

[00:17:02] Speaker 00:
which is that if this court were to remand, it's sort of similar to a harmless error argument.

[00:17:10] Speaker 00:
Sure, maybe now you could argue now the analysis that should be done in a case like this is Atlantic Steel.

[00:17:19] Speaker 00:
OK, so this court then remands again for the board to apply Atlantic Steel again.

[00:17:25] Speaker 00:
Um, really, it's clear from the record, um, and I don't think there's a reasonable doubt that the board, if it were to apply Atlantic Steel, would come to the same reasonable conclusion that, um, the employer violated section 8A3N1 here.

[00:17:42] Speaker 01:
I appreciate your point about filing the record, but actually, in the NLRB, the cases aren't filed.

[00:17:51] Speaker 01:
because they're unenforceable until a court grants enforcement or not.

[00:17:57] Speaker 01:
And you have a cross-application here for enforcement.

[00:18:01] Speaker 01:
Yes, Your Honor.

[00:18:02] Speaker 01:
And so the board's view is that the cross-application for enforcement should be decided under right line or Atlantic Steel?

[00:18:15] Speaker 00:
Your Honor.

[00:18:18] Speaker 00:
Both.

[00:18:18] Speaker 00:
Your Honor.

[00:18:19] Speaker 00:
The board stands behind its decision under right line and an unlawful motivation analysis.

[00:18:24] Speaker 00:
That being said, should this court feel that it?

[00:18:29] Speaker 01:
I'm asking the board's position on what basis it believes this court should, because you've asked for an enforcement, you've got a cross application for enforcement.

[00:18:40] Speaker 01:
Yes, Your Honor.

[00:18:42] Speaker 01:
This word now, it might win and I'll be moved.

[00:18:45] Speaker 01:
But you've asked for enforcement.

[00:18:48] Speaker 01:
And so what is your position on the legal rule that should be applied given line of estimators for the cross application for enforcement?

[00:19:00] Speaker 00:
Your honor, the agency stands behind its unlawful motive analysis under a right line as a finding of a section 83 and one violation.

[00:19:09] Speaker 00:
The agency also

[00:19:12] Speaker 00:
believes that this court can look at the writing on the wall, look at the record in this case, and know that the agency would come to the same reasonable conclusion were it to apply the current standard, which is line elastomers, which would again be, which this court has repeatedly upheld cases decided under both standards.

[00:19:39] Speaker 00:
And so the agency does stand behind its decision in order before this court.

[00:19:43] Speaker 00:
I'm not, Henry might forbid me from saying, just go with Atlantic Steel.

[00:19:51] Speaker 00:
And we want to be conscious of that.

[00:19:52] Speaker 00:
We want to be aware of this, that.

[00:19:54] Speaker 00:
And therefore, the board does stand behind its unlawful mode of analysis.

[00:19:58] Speaker 00:
However, I think the Wyman-Gordon and those other exceptions that I cited, the Wyman-Gordon exception that I cited about not turning, like Your Honor said, not turning an agency's decision into a ping pong game with the courts.

[00:20:14] Speaker 00:
There's no reason to remand this case and have it decided again under the board's current standard, given that the record is quite clear that the agency would come to the same reasonable conclusion.

[00:20:27] Speaker 00:
If there are no further questions, Your Honor, I thank you very much for your time.

[00:20:32] Speaker 01:
Thank you very much.

[00:20:33] Speaker 00:
Thank you.

[00:20:43] Speaker 01:
We'll round up and give you two minutes.

[00:20:45] Speaker 04:
Thank you, Your Honor.

[00:20:47] Speaker 04:
I would just say as to that last comment, I'm a little nervous about conceding that

[00:20:53] Speaker 04:
We can just assume that the board would do the same thing with this case.

[00:20:57] Speaker 04:
I mean, the fact is they never did.

[00:21:00] Speaker 04:
To your question, Your Honor, about this before this court, this case was remanded to the board and was before the board at the time Lyon Elastomers was decided.

[00:21:14] Speaker 04:
So Lyon Elastomers retroactive application, their cross

[00:21:19] Speaker 04:
line elastomers standard.

[00:21:21] Speaker 04:
But back to our original argument.

[00:21:24] Speaker 01:
The board has applied both Atlantic steel and right line to your case.

[00:21:28] Speaker 01:
You have your challenge and certainly the latest decision under right line.

[00:21:33] Speaker 01:
But they've applied first time they applied Atlantic steel and you said apply right line and you got what you asked for and now they've applied.

[00:21:41] Speaker 01:
right line.

[00:21:42] Speaker 01:
So I think all she was saying is the board has already applied both.

[00:21:46] Speaker 01:
And you said your arguments as to error, which are before us, are the same under both tests.

[00:21:51] Speaker 04:
And I stand by that.

[00:21:52] Speaker 04:
As this court held at Felix Industries and then later in Ed Trantz,

[00:21:59] Speaker 04:
There, there is a way to get to decency in the workplace at trans court.

[00:22:07] Speaker 04:
You know the union took the positions perfectly acceptable to use the most offensive and derogatory racial or sexual epithets.

[00:22:15] Speaker 04:
So long as that's connected to union organizing, and it's unfair to expect members to comport themselves with civility and decorum.

[00:22:23] Speaker 04:
And the court went on and said, working people are capable of discussing matters intelligently and in generally acceptable language.

[00:22:33] Speaker 04:
That overarching principle applies here.

[00:22:38] Speaker 04:
This is a case about workplace decency,

[00:22:45] Speaker 04:
not tolerating insulting attacks and attacks.

[00:22:49] Speaker 01:
Had that been... At least by mechanics, but Mr. Lasarkis had some pretty ripe language himself before he spoke.

[00:22:58] Speaker 01:
So it's a little hard to say that foul language is not tolerated in the workplace.

[00:23:05] Speaker 01:
Unless it's the point that it's only tolerated by Mr. Lasarkis.

[00:23:08] Speaker 04:
Not at all, Your Honor, but if I stub my toe and yell something, that's one thing.

[00:23:15] Speaker 01:
It was directed to Mr. Bespikas, because it was, you get the F out of here or I'm going to F you out of here.

[00:23:21] Speaker 04:
That was after Mr. Bespikas called him a liar.

[00:23:26] Speaker 04:
I don't recall if he swore or not.

[00:23:28] Speaker 04:
And there was an argument in his office.

[00:23:31] Speaker 01:
That's how they disagreed on recollections, but that wasn't, Mr. Bespikas had not used any foul language at that point.

[00:23:38] Speaker 01:
Okay, but.

[00:23:39] Speaker 01:
And I'm just trying to ask this because you've talked about it and it's a relevant concern about the ability, at least when it comes to sexually and racially derogatory language of employers to ensure that they have a workplace atmosphere that is free of such hostility.

[00:23:57] Speaker 01:
But I thought this is a case of just sort of ordinary profanity.

[00:24:03] Speaker 01:
And I'm trying to understand what your description of the workplace is because

[00:24:08] Speaker 01:
It doesn't seem to be one where profanity is not used.

[00:24:13] Speaker 04:
I'm not saying it would be.

[00:24:19] Speaker 04:
There's a difference between profanity directing profanity at somebody.

[00:24:26] Speaker 01:
Mr. Lasarkas did too.

[00:24:29] Speaker 04:
He told him to get out of the office even.

[00:24:32] Speaker 04:
I'm not going to repeat.

[00:24:39] Speaker 04:
He did swear, but he didn't insult Mr. Bezbikis directly.

[00:24:46] Speaker 04:
He didn't say something that would have threatened him or demeaned him.

[00:24:52] Speaker 04:
And the board has held since the 80s, insulting attacks need not be tolerated.

[00:25:02] Speaker 04:
Thank you to this panel.

[00:25:03] Speaker 04:
We ask for a reversal and happy holidays.