[00:00:00] Speaker 01:
Case number 22-1262 et al, Longmont United Hospital Petitioner versus National Labor Relations Board.

[00:00:08] Speaker 01:
Mrs. Shelley for the petitioner, Mr. Colton-Batt for the respondent.

[00:00:15] Speaker 00:
Mr. Scully, good morning.

[00:00:19] Speaker 03:
Good morning.

[00:00:20] Speaker 03:
May it please the court, my name is Patrick Scully and I am joined by John Melkin this morning and we represent Longmont United Hospital

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Your Honor, employees and employers rely on the integrity of the National Labor Relations Board election process, as it has been an element of labor law that has mostly escaped the political vacillations that usually accompany a change in administration.

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Brightline rules ensure security in that election process, and they have been historically applied without regard to the identity of the voter or the outcome of the election, except in this case.

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The board has improperly adopted Member Stevens' dissent in Thompson Roofing and thereby invited post hoc litigation on the issue of whether a voter has put her signature on the envelope of a male ballot.

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The mischief of this departure is that, and it is a departure from established precedent without reasoned explanation in our view, is that parties

[00:01:25] Speaker 03:
are thereby invited into a process whereby they will litigate the subjective intent of the voter in a way that is contrary to not only established precedent of the NLRB but of this court.

[00:01:39] Speaker 02:
Is it litigating subjective intent or it's just litigating the fact question whether the voter signed the envelope?

[00:01:48] Speaker 03:
Your Honor, we believe that it's not a fact question, but a legal question in that the board, since Thompson-Roofing has held that the male ballot voter must put her signature on the ballot and has rejected... Okay, so then the question is, did the voter, is this Ms.

[00:02:09] Speaker 02:
Shaleman's signature?

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Is this her signature?

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Your Honor, the question is how that issue is determined.

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And by the use of exemplars, as we noted in our brief, there are 16 exact exemplars of her signature.

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And our position is that the decision should have been made based on that, without post hoc litigation having the voter, for instance, verify that this is indeed my signature.

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That would seem to be the best evidence.

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whether or not she signed the envelope.

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It's her testimony that she did or didn't.

[00:02:48] Speaker 03:
Well, that testimony, Your Honor, occurred after Ms.

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Schellman also testified that she had conferred with the petitioner, the petitioning union in this case, and had been advised that her vote would in fact determine the outcome of the election.

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And whether or not that's true, that demonstrates the mischief of litigating this.

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The point is, it's historically the board has simply looked to exemplars of signatures and declared as void if the ballot was not signed.

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And without regard to how we define printed, in this case, Ms.

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Shalman, in fact, wrote her name in the way she had printed it on the exemplars that we've provided in the course of the investigation and also cited in our brief.

[00:03:29] Speaker 01:
I'm trying to understand your position, Council, but you seem to be saying that if there's a disputed actual issue, there shouldn't be a hearing to determine the fact.

[00:03:39] Speaker 01:
And that's unusual in my view.

[00:03:43] Speaker 03:
Your Honor, our position is that it's a legal issue, whether or not it was the signature.

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I don't think that there's any dispute in the record here as acknowledged by the hearing officer and the regional director.

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that the writing on the ballot envelope in this case does not resemble Michelle's signature.

[00:03:59] Speaker 01:
But I think the disputed factual issue was whether that was her signature, and she ended up testifying that she signs things fast sometimes, and she has a different signature when she's taking her time.

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And that doesn't seem incredible to me.

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I'm just having trouble understanding.

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You just think the entire process of having a hearing

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is incorrect.

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You want us to hold that we shouldn't have hearings to determine factual issues.

[00:04:27] Speaker 01:
No, Your Honor.

[00:04:28] Speaker 03:
What we're contending is that the board determine this factual issue when the hearing officer and the regional director said that the signature on the mental ballot envelope did not resemble this individual's signature.

[00:04:39] Speaker 03:
Well, it was offered after the fact.

[00:04:42] Speaker 01:
But if it doesn't resemble, doesn't mean that it wasn't her signature.

[00:04:45] Speaker 03:
Well, I think it's fairly clear on the record that it wasn't because it doesn't match the prior exemplars.

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And I think that a hearing can occur.

[00:04:52] Speaker 01:
But there could be an explanation for that.

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And you're saying we shouldn't be allowed to seek an explanation.

[00:04:59] Speaker 03:
No, all we're suggesting is that the parties, when there's a highly contested election and there's a slim margin as there is in this

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that certainly the parties, whether or not we agree in this case that all of what was introduced was truthful or not, it demonstrates the mischief of litigating it after the fact because- But if the board had ruled against you, you would have wanted a hearing to prove your side of it?

[00:05:25] Speaker 03:
Actually, Your Honor, most of these cases are the Starbucks case and certainly Thompson-Rubin involved, intentions by employers saying

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that this individual's ballot should be counted and they shouldn't be disenfranchised when there wasn't a signature, when there was no dispute about the person validly submitting the ballot.

[00:05:44] Speaker 01:
I guess my point is just it could go either way and whoever is on the wrong side of that should be allowed to have a hearing to make sure that this was correct.

[00:05:54] Speaker 03:
Well, Your Honor, we agree it could go both ways.

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And I think that that's the importance of having a bright line rule.

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And that's why the board recently, in the dual mark ballot cases in Providence Portland Medical Center, spoke of the fact of having a bright line rule to simply avoid any sort of dual markings rather than litigate the subjective intent of the marker of that, which led to results in those cases over years upon years where the board was litigating whether or not an individual tended to make a smudge,

[00:06:21] Speaker 03:
for a line or an X in a ballot.

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And I think that that demonstrates really what the issue is in this case, that we have exemplars.

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They certainly, it's a distinctive mark.

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The board recognized that.

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And then after the fact, there was a hearing in which one of the interested parties spoke to the individual, cut them, and had that person post hoc verify a signature that did not look anything like any of the other signatures that were in the record.

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And I think that that's why

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That's why ballots get voided, is so that there isn't this constant litigation of what the purpose was in making a particular mark.

[00:06:59] Speaker 02:
Suppose you have exemplars, and then there's a signature, and it's a nice distinctive, elaborate signature, and then there's something much less distinctive, messy, and the voter wants to make a proffer that she had a stroke, which has affected her motor skills.

[00:07:21] Speaker 02:
and make a further proffer that here's the video recording showing her doing her best to sign.

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She couldn't do that.

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Well, in that case, Your Honor, all we're contending is that post hoc litigation is inappropriate.

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So anything up to the point.

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Our point is that the moment that the mark is made that it should be a signature and the board has repeatedly held

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that if it's printed in any way that it is voided.

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So in that case, Your Honor, an individual would have had the medical condition prior to marking the ballot, and there wouldn't be sort of this after the fact.

[00:07:59] Speaker 02:
Right, but if you just compared the signature to the exemplar, it would look totally different.

[00:08:06] Speaker 03:
Yes, Your Honor, but there would be evidence prior to the time that the person cast their ballot, which I think is the critical time for all purposes in voting at the NLRB.

[00:08:15] Speaker 01:
Oh, so you're saying there could be a hearing, but they can't admit any evidence after the marking of the ballot?

[00:08:23] Speaker 03:
We're suggesting, Your Honor, that of course there could be a hearing, but to verify the example or to verify that it was the signature at the time that it was signed.

[00:08:31] Speaker 03:
In this case, we had a post-hoc photograph of a state that purported to verify the writing on the ballot, which looked quite similar to the printed... Didn't they admit other signatures by Ms.

[00:08:42] Speaker 01:
Chalamont?

[00:08:43] Speaker 01:
from before setting of the ballot that also didn't look like the ones that you admitted?

[00:08:48] Speaker 03:
None of which were claimed to be her signature.

[00:08:51] Speaker 03:
They were insignia on two different documents, which were one of them was admitted not to be her signature by the witness and also another that did not resemble the writing on the mail ballot envelope.

[00:09:06] Speaker 00:
Mr. Scully, can I ask you, would you have been satisfied if instead of being

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asked boldly, is this your signature, which is the whole issue in the case?

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And she said yes.

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If she'd been asked, did you make the entry on that ballot?

[00:09:25] Speaker 03:
I'm afraid I would not, Your Honor, because that is really the point of Thompson-Rubin, which the board has disregarded, is that the identity.

[00:09:33] Speaker 00:
Well, that is a fact, as opposed to what she intended as either a signature or a printing.

[00:09:42] Speaker 03:
It is a fact that she was the voter, and we do not contest that for the purposes of this appeal, but that was the case in Thompson-Roofing as well, and many cases decided by the board that the voter in fact cast the ballot, but it was not signed, therefore it was voided.

[00:09:59] Speaker 00:
So she couldn't even be asked, in your interpretation of the rule, did you put that mark on the ballot?

[00:10:10] Speaker 03:
I think that certainly the witness could be asked that, but we don't believe it should be determinative that really the question is not the identity of the voter or whether or not they voted, but whether it was signed.

[00:10:21] Speaker 03:
And again, I believe that the board is arguing about that very issue, that really the key issue is did this person cast the ballot?

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And we're saying that that may be a rationale, but the rule has to be a bright line rule in order to avoid

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this process effectively that we're in.

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And I would have to accept the other side of that issue, Your Honor, if in fact the board had said, well, this is a signature based on the exemplars up to this point.

[00:10:46] Speaker 02:
You're not contesting that Michelle made the marking that I'm looking at here in the yellow box.

[00:10:57] Speaker 02:
That's correct.

[00:10:58] Speaker 02:
And you're saying there's a distinct legal question

[00:11:04] Speaker 02:
about whether that marking is sufficiently incursive to count as a signature.

[00:11:11] Speaker 03:
Well, there's a distinct legal question as to whether or not that was signature.

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And the legal question is really why the board departed from its established precedent in Thompson-Roofing without reason explanation.

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Again, the board could revisit this issue and explain why that it is no longer going to apply a hard and fast rule with respect to signature.

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They didn't do that in this case, and that is why

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We brought this petition.

[00:11:38] Speaker 00:
All right.

[00:11:39] Speaker 00:
We'll give you a minute to reply.

[00:11:40] Speaker 00:
Thank you.

[00:11:41] Speaker 00:
Mr. Colton.

[00:11:51] Speaker 04:
Good morning and may it please the court.

[00:11:53] Speaker 04:
Mark Colton back for the National Labor Relations Board.

[00:11:56] Speaker 04:
The board requests that its order against Wong Mai United Hospital be enforced in full.

[00:12:02] Speaker 04:
I'd like to begin by talking about the challenge to Nurse Solomon's ballot.

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Longmont challenged the ballot at the vote count on the basis that it did not match signature samples in Longmont's possession.

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The question is whether the board abused its discretion in overruling the challenge, and it did not.

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The board found, and Longmont does dispute, that Nurse Solomon did cast this ballot.

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So any concerns about impersonation or fraud were resolved.

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Any concerns that might have been raised by the mismatching samples.

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Under board law, this is, this is dispositive.

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This alone is dispositive.

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But Longline argues that the board still should have disenfranchised Nurse Chalamont if she did not sign it in some kind of formalistic or technical sense of the term sign.

[00:13:03] Speaker 04:
Long what's wrong on the law.

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But it doesn't make a difference in this case.

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Nurse Shalman credibly testified that she did sign the envelope.

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So even accepting for argument's sake that there is some kind of technical signature requirement, it's met here.

[00:13:22] Speaker 00:
Why do you keep saying technical and insignificant?

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The whole point of having a signature rather than a printed name is so that

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Everyone knows that voter.

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It's just like when we vote in an election, we have to, well, back in the day when we had paper ballots, we couldn't print our name.

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We had to sign our name.

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When we register, we have to sign our name.

[00:13:47] Speaker 04:
Yes.

[00:13:47] Speaker 04:
Yes, Your Honor.

[00:13:48] Speaker 04:
No, I don't mean the general requirement is technical or insignificant.

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It is a very important requirement that the board has had

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at least since the 1940s and probably for its entire practice.

[00:14:04] Speaker 04:
The point is the purpose of the requirement is to preserve election integrity.

[00:14:10] Speaker 04:
Okay, so the board requires the signature on the ballot envelope and mail ballot specifically so that this comparison can happen.

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And in this case, the system worked, right?

[00:14:24] Speaker 04:
There was a signature, a non-printed signature on the ballot

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At the ballot count, it was presented to the parties.

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The employer noticed something potentially concerning in the form of a mis- they had a sample in their personnel file that didn't match to the board and allowed the challenge to go forward and conducted a hearing to make sure that the integrity of the election wasn't compromised.

[00:14:48] Speaker 04:
So this is the system working, but my only point is

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It is undisputed that the integrity of the election was not.

[00:15:00] Speaker 04:
Yet the company wants to create this distinction between a non-printed cursive name and some kind of nebulous technical thing that is a signature, that is different from a cursive.

[00:15:19] Speaker 04:
That's what I mean when I use the word.

[00:15:22] Speaker 04:
Well, I apologize.

[00:15:22] Speaker 04:
I gave the impression that the board doesn't consider this general requirement very important to us.

[00:15:29] Speaker 00:
Well, I agree with you in this case because there's no question as to her identity.

[00:15:35] Speaker 00:
She was Miss so-and-so and she cast that ballot.

[00:15:39] Speaker 00:
But the issue is whether she signed it or printed it.

[00:15:44] Speaker 04:
Respectfully, Your Honor, I disagree.

[00:15:46] Speaker 04:
All right.

[00:15:48] Speaker 04:
You don't disagree, well, what do you disagree with?

[00:15:51] Speaker 04:
I disagree that that is the issue.

[00:15:54] Speaker 04:
In the reply brief, we weren't, frankly, we were a little bit puzzled by what Longmont was asserting.

[00:16:01] Speaker 04:
In the reply brief, they made clear that their position is not this was a printed name.

[00:16:10] Speaker 04:
Their position is that it was not a signature.

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If you see the distinction,

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we're in according to long months argument, we're not in a binary world.

[00:16:21] Speaker 04:
It can be non printed, but also not a signature.

[00:16:25] Speaker 04:
Um, if they were arguing it's a printed name, which they, they clarified in their reply brief, they are not, that would be a different, a different issue.

[00:16:37] Speaker 04:
Um, I think it would be resolved by simply looking at the base of the envelope.

[00:16:43] Speaker 04:
It when the board talks about printed names, it uses the ordinary, it means that in the ordinary sense.

[00:16:50] Speaker 04:
It basically says, if you have printed lettering, that doesn't create the security measure that I just alluded to.

[00:16:57] Speaker 04:
It's not distinctive enough to satisfy.

[00:17:01] Speaker 02:
Sorry, I'm not sure what class of cases we're talking about.

[00:17:06] Speaker 02:
If you assume that

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This is Miss Schallemann who made the marking.

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And you also assume that we're not dealing with something that is too printed.

[00:17:22] Speaker 02:
What are we talking about?

[00:17:24] Speaker 02:
What's the thing that could not be her signature?

[00:17:28] Speaker 04:
I think it's a great question, Your Honor.

[00:17:31] Speaker 04:
We don't know.

[00:17:33] Speaker 04:
You're not sure?

[00:17:33] Speaker 04:
Yeah, Longmont's position is that there is some third category.

[00:17:39] Speaker 04:
So this is kind of related to this line of questioning.

[00:17:42] Speaker 04:
I just wanted to briefly talk about Thompson roofing and explain the holding of that case.

[00:17:48] Speaker 04:
The point of Thompson roofing, that is the board affirming a pre-existing practice of voiding mail ballot envelopes that come in that have undisputed printed lettering in them.

[00:18:03] Speaker 04:
That is the point of Thompson roofing.

[00:18:07] Speaker 04:
that the practice existed.

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It was in the case handling manual.

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The question came up whether the board would endorse that, and in Tom's roofing it did, saying that basically printed lettering isn't useful to ensuring us of the integrity of the election.

[00:18:28] Speaker 04:
Again, everyone agrees we're not in that, I believe everyone agrees we're not in that situation here.

[00:18:34] Speaker 04:
And I would argue that looking at the ballot envelope makes clear that we're not in that situation here.

[00:18:40] Speaker 04:
This is not a printed name.

[00:18:42] Speaker 04:
So what we have is, in this case, a non-printed name written on a ballot envelope.

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And one party saying, this doesn't match a sample.

[00:18:54] Speaker 04:
There's a concern that maybe there was some funny business here.

[00:18:58] Speaker 04:
That brings us into the world of the college case, which is a recent case from 2021, addressing very similar facts.

[00:19:08] Speaker 04:
In that situation where that concern is raised, if the balloting question ends up being potentially just positive of the election, the board conducts a hearing to see, is there anything to this concern?

[00:19:20] Speaker 04:
Is there anything to this suspicion?

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And in this case, that's exactly what they did.

[00:19:26] Speaker 04:
And they found that

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there wasn't, it turns out there wasn't any impersonation or fraud and no one disputes that here.

[00:19:35] Speaker 04:
I also wanted to briefly touch on a, and I'll note by the way that Longmont ignores college bound in its reply brief, even though it is the case most on point here.

[00:19:49] Speaker 04:
I wanted to briefly respond to something that was said in the reply brief and that was again said here, which is,

[00:19:55] Speaker 04:
I think somewhat of a mischaracterization of the documentary evidence in this case.

[00:20:01] Speaker 04:
Longmont repeatedly says that there are these 16 signature exemplars and they don't look like the ballot envelope and nothing.

[00:20:09] Speaker 04:
They basically say there's nothing else.

[00:20:11] Speaker 04:
That is not true.

[00:20:13] Speaker 04:
The driver's license, the nurse in question, Nurse Shalomon's driver's license was produced actually by Longmont pursuant to a subpoena introduced by the union.

[00:20:24] Speaker 04:
in the representation proceeding, that driver's license establishes two key facts.

[00:20:32] Speaker 04:
First, it does not resemble the signature exemplars that Longmont cites.

[00:20:37] Speaker 04:
And so that at the very least establishes that this nurse has more than one version of her signature, the variance.

[00:20:44] Speaker 04:
But the regional director in a footnote found

[00:20:48] Speaker 04:
and reasonably found that if you actually look at that driver's license, the style is very similar to the one on the ballot envelope.

[00:20:56] Speaker 04:
So beyond establishing multiple versions, it also shows that it corroborates your testimony that, hey, I wrote this.

[00:21:02] Speaker 04:
This is how I signed my name when I'm not in a hurry.

[00:21:07] Speaker 04:
The significance of that is that it corroborates Ms.

[00:21:12] Speaker 04:
Schallemann's testimony and supports the board's determination to credit her.

[00:21:18] Speaker 00:
How about this social security card?

[00:21:22] Speaker 00:
Didn't she testify that she didn't write that one?

[00:21:25] Speaker 04:
So her testimony with regard to the social security card, which I'll note, Longmont mentions the social security in its reply brief for the first time.

[00:21:34] Speaker 04:
It didn't mention it in its opening brief.

[00:21:36] Speaker 04:
So I think we would argue that it's waived.

[00:21:38] Speaker 04:
We didn't get a chance to respond.

[00:21:40] Speaker 04:
But her testimony on the social security card is very unclear and confusing.

[00:21:45] Speaker 04:
The regional director analyzes it in a

[00:21:48] Speaker 04:
I think in a footnote in in the regional director's decision which board affirmed.

[00:21:56] Speaker 04:
She doesn't clearly she does say it's not her signature, but she doesn't really explain regional director basically found that the testimony wasn't.

[00:22:06] Speaker 04:
Uh, enough to overturn the hearing officer's credibility resolution of particularly giving given the corroborating.

[00:22:13] Speaker 04:
Testimony regarding her driver's license and also the fact that the hearing officer got to watch her test and observe her demeanor.

[00:22:20] Speaker 04:
Our position would be any concerns raised by this Social Security card testimony wouldn't be enough to, for this court certainly to reach into the representation proceeding and reverse that credibility determination given the extraordinary deference the court gives to those kinds of determinations.

[00:22:38] Speaker 04:
I see I'm over time.

[00:22:40] Speaker 04:
The board requests enforcement of its order in full.

[00:22:44] Speaker 04:
Thank you very much.

[00:22:45] Speaker 00:
Thank you.

[00:22:45] Speaker 00:
Thank you.

[00:22:47] Speaker 00:
Mr. Scully, why don't you take two minutes

[00:22:50] Speaker 00:
Why don't you begin by answering his comment that you changed your position in the reply brief with respect to the third.

[00:23:05] Speaker 00:
It's not a print.

[00:23:06] Speaker 00:
It's not printed.

[00:23:07] Speaker 00:
It's not signed.

[00:23:09] Speaker 00:
What is it?

[00:23:10] Speaker 03:
Thank you, Your Honor.

[00:23:11] Speaker 03:
Happy to do that.

[00:23:12] Speaker 03:
What we contended in the reply is simply that

[00:23:15] Speaker 03:
To be printed, it doesn't have to appear as block lettering, which is the position that the agency took.

[00:23:22] Speaker 03:
In the 16, not one exemplar, but 16 exemplars, most of them included a space for Ms.

[00:23:28] Speaker 03:
Shalman to print her name.

[00:23:30] Speaker 03:
And we submit that the printing on those is much like the writing on the ballot envelope.

[00:23:35] Speaker 03:
So we merely explain that we're not saying that printed means block lettering.

[00:23:40] Speaker 03:
It's clearly not block lettering, but it is how Ms.

[00:23:43] Speaker 03:
Shalman had previously printed her name.

[00:23:46] Speaker 03:
Um, with respect to the social.

[00:23:48] Speaker 01:
So your position is that the ballot that is before us is.

[00:23:52] Speaker 03:
Correct, your honor.

[00:23:55] Speaker 01:
Such a rule in your favor.

[00:23:56] Speaker 03:
We'd have to find it printed that it's not signed.

[00:23:59] Speaker 01:
I believe your honor under the board precedent and I just wanted to are there only two possibilities signed or printed or is there a third possibility?

[00:24:06] Speaker 03:
I think that the only rule that the board has promulgated is that there must be signed.

[00:24:12] Speaker 03:
Um, it did not.

[00:24:13] Speaker 03:
It's never said that the

[00:24:14] Speaker 03:
the objecting party or the challenging party has to prove that it was printed.

[00:24:19] Speaker 01:
The board has only said that- Okay, so if we look at this marking and we think it's a signature, you lose?

[00:24:27] Speaker 03:
Well, I think that the hearing officer in the RD said that it didn't resemble these exemplars, so I don't think that that's the proper conclusion.

[00:24:36] Speaker 03:
I think the issue in this case is what is the rule of law at the board, and I think that

[00:24:43] Speaker 01:
I'm confused, though, because if it's a signature and Ms.

[00:24:46] Speaker 01:
Shalaman did it, isn't that a good ballot?

[00:24:50] Speaker 03:
But I think, yes, indeed, Your Honor.

[00:24:53] Speaker 03:
But I believe that the record demonstrates that it was not her signature.

[00:24:57] Speaker 03:
And I think that the exemplars demonstrate that.

[00:24:59] Speaker 03:
And I just want to, if I may.

[00:25:01] Speaker 01:
But then we're back to, is there a third category?

[00:25:03] Speaker 01:
Because if it's a signature and it's hers, it seems to be a good ballot.

[00:25:06] Speaker 01:
It's not block printing.

[00:25:07] Speaker 01:
So is there some third category you think this is?

[00:25:10] Speaker 03:
Well, I think that there is, in the way that Ms.

[00:25:13] Speaker 03:
Schellman printed her name in the exemplars, Your Honor, and in those there is cursive lettering where she printed her name.

[00:25:19] Speaker 03:
And so I think in this particular case, the manner in which she printed her name looked exactly like what appeared on the mail ballot envelope.

[00:25:27] Speaker 03:
And if I may just have a minute, Your Honor, with respect to college bound Dorchester, which counsel addressed, that did not overturn Thompson roofing.

[00:25:36] Speaker 01:
It's not inconsistent with Thompson Roofing.

[00:25:38] Speaker 03:
Pardon me?

[00:25:38] Speaker 01:
It's not inconsistent with Thompson Roofing, is it?

[00:25:41] Speaker 03:
It did not overturn it, and it's not.

[00:25:43] Speaker 03:
And I think that in all those cases where the board had voided ballots for non-signature, those parties always had argued, in most cases, the petitioner had argued that the ballot was cast by an eligible voter so that there's no fraud.

[00:25:59] Speaker 03:
But the board nonetheless voided the ballot.

[00:26:01] Speaker 03:
And so with that, we'd ask that this order

[00:26:04] Speaker 03:
be vacated and for all the reasons stated in our briefing.

[00:26:07] Speaker 03:
Thank you very much.