[00:00:01] Speaker 04:
Case number 22-1332 et al.

[00:00:06] Speaker 04:
NCRNC LLC, doing business as Northeast Center for Rehabilitation and Brain Injury Petitioner versus National Labor Relations Board.

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

[00:00:16] Speaker 04:
Lemuet for the petitioner, Mr. Weitz for the respondent.

[00:00:22] Speaker 02:
Whenever you're ready.

[00:00:23] Speaker 05:
Good morning, your honors.

[00:00:24] Speaker 05:
This case arises out of a union organizing campaign at a long-term care center specific for individuals with traumatic brain injury.

[00:00:32] Speaker 05:
And that's important because the board erred in finding that NCRNC's instruction to its supervisors was surveillance and that they committed surveillance, especially in the healthcare context.

[00:00:44] Speaker 05:
The Supreme Court has said healthcare is in patient areas.

[00:00:48] Speaker 05:
patient locations is entitled to have stricter rules than maybe would exist in other places and areas.

[00:00:56] Speaker 05:
The board found surveillance, uncharged conduct by the way, in two areas the manager on duty program that the Northeast Center ran and in handing out of flyers by supervisors to employees.

[00:01:10] Speaker 02:
Let's just stipulate

[00:01:12] Speaker 02:
that section eight c protects uh... flyers i'm with you on that but uh... okay manager on duty why is that not why is that finding not supported by substantial evidence you have testimony that they put in place this program managers are showing up in weird hours weird places

[00:01:42] Speaker 02:
Um, that's tends to be that one can easily imagine that's intimidating.

[00:01:48] Speaker 05:
It might be intimidating if they were showing up in break rooms and parking lots and places where union organizing activity generally occurs.

[00:01:58] Speaker 05:
That was never the instruction.

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Nobody testified to that.

[00:02:01] Speaker 05:
The instruction was to come in.

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and to monitor workplaces, patient care areas, the units for the unit managers, and the department heads to monitor employees.

[00:02:12] Speaker 05:
And her specific testimony was, we were told to look to make sure employees were doing their jobs.

[00:02:18] Speaker 03:
Was it just, I thought it was not just unit managers.

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It went all the way up to Mr. Weir.

[00:02:23] Speaker 05:
Mr. Weir had started his program in July.

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There is evidence in the record.

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The general counsel submitted emails from Mr. Weir to the other people in the company saying, I'm already going to every unit every day.

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I've been on every shift.

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I've met with employees.

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A405, that email is sent July 9th in A403.

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Him saying, we're already doing this, we've started it.

[00:02:53] Speaker 05:
They brought in the consultants at that time because the comment heard in the hallway was, maybe we should get a union in here.

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That's all the comment was.

[00:03:00] Speaker 05:
There wasn't any more than that.

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A manager overheard it.

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And the consultants in July, well before they knew there was a union organizing campaign, suggested they start bringing in supervisors and managers more often.

[00:03:14] Speaker 05:
But these people were supposed to be there anyway.

[00:03:16] Speaker 03:
Was there any rationale given?

[00:03:19] Speaker 05:
That employees on the night and evening shift did not have enough contact with their supervisors.

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The facility was short staffed.

[00:03:26] Speaker 05:
Everybody said that.

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That was actually one of the precipitating events for union organizing campaign.

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And that supervisors needed to be doing more to help their employees on the night shift and the evening shift.

[00:03:37] Speaker 02:
There would certainly be substantial evidence to support a conclusion that

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That was the reason for the program and it was perfectly appropriate and perfectly fine.

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Right?

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But there's other evidence.

[00:03:55] Speaker 04:
I don't think there is.

[00:03:57] Speaker 02:
You need to negate the worst

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And I don't think there is other evidence.

[00:04:02] Speaker 05:
The instruction that Tara Golan testified to was to come into our units, which is where they're supposed to supervise anyway, and look to see if employees were doing something suspicious, gathering in groups, and not working.

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And when the ALJ asked her to clarify what she meant, she said, well, basically we were supposed to look to see if they were working.

[00:04:23] Speaker 05:
That's not surveillance.

[00:04:25] Speaker 05:
That's doing your job as a supervisor.

[00:04:28] Speaker 00:
I mean, doesn't really challenge the credibility determinations of the ALJ, which were affirmed by the board.

[00:04:34] Speaker 00:
And those credibility determinations were overwhelmingly in favor, you know, were against Northeast.

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And it's obviously a hard standard to rebut credibility determinations.

[00:04:45] Speaker 00:
But without any challenge to the credibility determinations, how do we find that there was not substantial evidence here for what the board did?

[00:04:54] Speaker 05:
But the only evidence is her testimony.

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that this is Tara Golden's testimony.

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And her testimony was they were to look for employees not doing work on work time.

[00:05:07] Speaker 05:
There is no evidence in the record that they went, say, to the break rooms, you know, spraying brook, which the board relies heavily on.

[00:05:14] Speaker 05:
The manager comes in and stands outside of a door where they know there's a union meeting and watches people going in and out.

[00:05:21] Speaker 05:
That never happened here.

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There's evidence in the record that even the nurses station, they were not told to go to the nurses station even.

[00:05:30] Speaker 05:
It just can't be that an employer can't say to its employees, especially in a healthcare setting where there are patients, you can't increase the number of supervisors walking around at some point in time because that's better for the facility.

[00:05:45] Speaker 05:
I mean, it's a legal determination whether that's coercive or not.

[00:05:48] Speaker 05:
That's not a factual determination.

[00:05:50] Speaker 05:
It's a legal one.

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The legal standard is whether it's coercive, whether it's interfering with union activity.

[00:05:56] Speaker 02:
Why isn't it a factual question?

[00:06:00] Speaker 02:
whether the specific program actions of the supervisors and such would tend to coerce whatever the verbs in 8a1 coerce, restrain or interfere.

[00:06:20] Speaker 05:
So that's a legal conclusion.

[00:06:22] Speaker 05:
Can you coerce, restrain, or interfere somebody if the only place that the supervisors are active is in patient care areas during work time?

[00:06:32] Speaker 05:
They shouldn't be union organizing there anyway, right?

[00:06:35] Speaker 05:
This is patient care areas during work time, not the nurses station even, not the break rooms, not the parking lots.

[00:06:43] Speaker 05:
This is work area work time.

[00:06:45] Speaker 05:
It can't be coercive there.

[00:06:47] Speaker 05:
It can't be interfering because they're not supposed to be doing it there anyway.

[00:06:51] Speaker 05:
They're supposed to be working caring for these brain injured patients.

[00:06:54] Speaker 02:
Suppose, I don't know, this probably isn't the facts, but

[00:06:58] Speaker 02:
Suppose Mr. Weir starts showing up or, you know, the CEO of the parent company shows up, you know, making the rounds, poking around.

[00:07:09] Speaker 02:
You don't think that might tend to interfere, right?

[00:07:14] Speaker 02:
Send a message.

[00:07:14] Speaker 02:
We're watching you.

[00:07:15] Speaker 02:
We're upset about this.

[00:07:16] Speaker 02:
You better be careful.

[00:07:19] Speaker 05:
So Mr. Weir is the administrator, he actually was legally required to do rounds on his ship.

[00:07:24] Speaker 05:
But you're talking about Mr. Camerota, yep, from the... Yeah, suppose we bring in outside people and we walk them around and we start following people, I think that's coercive, sure.

[00:07:34] Speaker 05:
But that didn't happen here.

[00:07:35] Speaker 02:
There's... But managers who are...

[00:07:38] Speaker 02:
Outside the chain of command, a couple steps up the chain of command.

[00:07:44] Speaker 05:
But they weren't.

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They weren't.

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The unit managers were on their units.

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The employee who was a union employee testified that her unit manager had been on her unit on all shifts prior to the union organizing.

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That was normal.

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The only unit manager that said she'd never been there before was Tara Golden.

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And the judge found credibility that she did not know what her job was.

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That was his credibility finding.

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for her.

[00:08:11] Speaker 05:
The other people were department heads, but department heads had employees throughout the facility.

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CSS workers worked on every shift, every floor.

[00:08:19] Speaker 05:
The CSS department head walking around checking on his employees to see if they're working is just supervision.

[00:08:26] Speaker 05:
It's nothing more, especially if it's in patient areas.

[00:08:30] Speaker 05:
Same thing.

[00:08:31] Speaker 05:
Now, there is a question about Department of Dietary and Housekeeping.

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Those people were not Northeast employees.

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Those those departments were outsourced and there was testimony to that.

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And the LJ found that that they were outsourced departments.

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So the Northeast can't be responsible for what the outsourced departments did with regard to their employees.

[00:08:48] Speaker 05:
There wasn't any communication between them and, for instance, Northeast that was in the record.

[00:08:53] Speaker 03:
Council, I want to go back to Mr. Weir for a moment.

[00:08:56] Speaker 03:
You said he began his practice

[00:09:00] Speaker 03:
in July.

[00:09:02] Speaker 03:
But it's my understanding that the first hint of union activity was in late June.

[00:09:10] Speaker 05:
There was a comment made in July at the nurses station, maybe we should get a union in here.

[00:09:17] Speaker 05:
That was the only comment that was made.

[00:09:19] Speaker 05:
The only union activity occurred much later.

[00:09:23] Speaker 03:
Remind me in the record who recounted that?

[00:09:28] Speaker 05:
It was a a supervisor walking by who overheard the comment reported it to Mr. Weir.

[00:09:34] Speaker 03:
And that was in late June?

[00:09:36] Speaker 05:
That was July 9th.

[00:09:38] Speaker 03:
I'm sorry, July what?

[00:09:39] Speaker 05:
July 9th.

[00:09:40] Speaker 03:
July 9th.

[00:09:41] Speaker 03:
And that's, and when did Weir first begin?

[00:09:44] Speaker 05:
Weir began in February.

[00:09:46] Speaker 03:
No, no.

[00:09:47] Speaker 05:
Weir was walking through the... Oh, in the email on July 9th, he said in response to a question of will

[00:09:54] Speaker 05:
Why is this the first we're hearing about it?

[00:09:56] Speaker 05:
He said I had already met with all employees on every shift.

[00:10:00] Speaker 05:
I've met with them several times.

[00:10:02] Speaker 05:
I've been walking through the building on several shifts.

[00:10:04] Speaker 05:
He had started well before that.

[00:10:08] Speaker 03:
Started working there, you mean?

[00:10:09] Speaker 03:
Not started?

[00:10:10] Speaker 05:
No, he had started his shift walking around, meeting with employees.

[00:10:16] Speaker 05:
On the day that they find out that there's this huge comment about maybe we should talk to a union, he sends an email saying, I've already met with, I've had departmental meetings with staff present.

[00:10:27] Speaker 05:
I've been to every unit on every shift numerous times.

[00:10:31] Speaker 05:
He says that.

[00:10:32] Speaker 03:
I thought you said earlier that his conduct began well before there was any union.

[00:10:37] Speaker 05:
It did.

[00:10:37] Speaker 03:
But not before the first mention of the union.

[00:10:40] Speaker 03:
No, it did.

[00:10:41] Speaker 05:
He sends that email saying, I've already done all of that.

[00:10:45] Speaker 05:
On the same day, they find out about the union.

[00:10:47] Speaker 05:
Possible union.

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And the only comment is, maybe we should get a union in here.

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Not look at a card, not do you want to come to a meeting?

[00:10:56] Speaker 05:
It was just maybe we should get a union in here in response to a question about being short-stiffed at the staff that night.

[00:11:02] Speaker 03:
That's certainly not helpful, I'm sorry to say.

[00:11:04] Speaker 05:
Well, I think, though, if he's saying on July 9th, I've already done this, and that's the first word they have of the union, the manager on duty program is already in place.

[00:11:15] Speaker 05:
It's in place because he says, I've already done it.

[00:11:20] Speaker 05:
I've been to every shift numerous times.

[00:11:23] Speaker 03:
All right.

[00:11:24] Speaker 05:
I'm going to take a look at that.

[00:11:24] Speaker 05:
It's in the record A403.

[00:11:26] Speaker 05:
It was a general counsel exhibit eight.

[00:11:32] Speaker 02:
Can I ask about?

[00:11:34] Speaker 02:
Mr. Endy, while Judge Ginsburg is running that down.

[00:11:38] Speaker 02:
One consideration that seems to cut against supervisor status is that the assignment function that he performed when he was the ranking supervisor

[00:12:00] Speaker 02:
is a pretty small percentage of his work time.

[00:12:06] Speaker 02:
So let me just sketch it out for you and then I'll let you respond.

[00:12:12] Speaker 02:
He takes 15 minutes to do this at the start of his shift.

[00:12:22] Speaker 02:
I assume it's, let's say he works an eight hour shift.

[00:12:26] Speaker 02:
He's the ranking supervisor.

[00:12:30] Speaker 02:
two days a week, it's 30 minutes out of 40 hours, one over 80.

[00:12:39] Speaker 02:
And there seem to be cases, this wasn't a big part of the board's rationale, but there seem to be cases suggesting that if you're acting as a supervisor part time, you gotta be like north of 10%, and he's not.

[00:12:58] Speaker 05:
I think he is.

[00:12:59] Speaker 02:
I mean, I just gave you 30 minutes out of 40 hours.

[00:13:04] Speaker 02:
Why is that the wrong way of thinking about it?

[00:13:06] Speaker 05:
So the testimony was that on a good day it took 15 minutes, but typically it took 30 to 45 because of having... Typically 30 to 45.

[00:13:15] Speaker 02:
I thought it was typically 10 to 15 and occasionally

[00:13:19] Speaker 05:
I believe Josie Cruz said it was typically more because of the call-outs and when I asked Mr. Endy about that he agreed that it was more difficult because they regularly had employees call out and so they would then have to redo the assignment they had planned for the night.

[00:13:35] Speaker 00:
You mean call out, like not show up for work?

[00:13:38] Speaker 05:
Yeah, not show up for work.

[00:13:39] Speaker 05:
This is a low-wage job.

[00:13:41] Speaker 05:
The supervisors get additional training, but the employees don't.

[00:13:47] Speaker 05:
And so they tend to call out when they don't want to be there.

[00:13:49] Speaker 05:
That was one of the problems.

[00:13:51] Speaker 05:
Both supervisors also testified that during the shift, they would occasionally, or actually Josie Cruz said on a regular basis, have to be- So let's just, before we get to during the shift, so 45 minutes.

[00:14:05] Speaker 02:
Twice a week, one and a half hours out of 40.

[00:14:09] Speaker 05:
You're still... But how different is that from Oakwood Healthcare, where the nurses are assigned at the beginning of the shift, the CNAs are assigned at the beginning of the shift?

[00:14:18] Speaker 05:
That's not taking any more time.

[00:14:19] Speaker 02:
I thought the nurse in question, like, was a full-time supervisor.

[00:14:25] Speaker 05:
Am I wrong about that?

[00:14:26] Speaker 05:
I don't think they full-time assigned work, though.

[00:14:29] Speaker 05:
And he is a full-time supervisor.

[00:14:32] Speaker 05:
I think it's fair to say he's not.

[00:14:33] Speaker 02:
OK, so that's leading to the other point I wanted to ask you, which is he sort of is and he sort of isn't.

[00:14:39] Speaker 02:
I mean, he's only doing this assignment when, is it Ms.

[00:14:45] Speaker 02:
Cruz is not there?

[00:14:47] Speaker 05:
And so that was not actually what the record showed.

[00:14:52] Speaker 05:
We put in all of the assignment sheets and more often than not, he made the assignment even if she was there.

[00:14:58] Speaker 02:
What is he doing?

[00:14:59] Speaker 02:
So on the days or on the nights when he is doing the assigning and it takes 15 minutes or 45 minutes, whatever it is, what is he doing after that?

[00:15:15] Speaker 02:
Is he just one of?

[00:15:17] Speaker 02:
Is he just doing CSS line function, or is he actively supervising for his whole shift?

[00:15:24] Speaker 05:
He is actively supervising for his whole shift.

[00:15:26] Speaker 05:
The supervisor was responsible to walk around and check on employees to see if they weren't doing their work, to see if they had any problems.

[00:15:35] Speaker 05:
He would have to deal with a problem if a patient and a CSS were not getting along.

[00:15:39] Speaker 05:
He would switch who was taking which job function.

[00:15:42] Speaker 05:
And this is all in his testimony.

[00:15:44] Speaker 05:
He would give them their breaks so he would say okay it's your break time now you go on break I'll cover for you while you're on break.

[00:15:52] Speaker 05:
It's your lunch hour go half hour go take your lunch half hour.

[00:15:55] Speaker 05:
I'll cover this while you're doing that.

[00:15:58] Speaker 05:
He responded to codes.

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Code Rainbow is a violet patient.

[00:16:01] Speaker 05:
He would be there responding to those as a supervisor or whoever was the supervisor.

[00:16:06] Speaker 05:
If there was a moon, which was a patient got out of the facility, the CSS supervisor would typically be the person who would go look for them because the nursing supervisor could not leave the perimeter of the facility.

[00:16:18] Speaker 00:
How are those functions supervisory?

[00:16:20] Speaker 00:
I mean, those sound like part of the duties of his employment.

[00:16:27] Speaker 05:
Well, they're supervisory in that he's helping the night nurse supervisor with the employees who are doing things.

[00:16:35] Speaker 05:
Breaking employees deciding when they go on break, deciding when they are, who's working with whom, switching people up.

[00:16:43] Speaker 05:
That's all supervisor.

[00:16:45] Speaker 00:
Even if some of that requires, you know, the independent judgment of a supervisor, why isn't it routine and clerical?

[00:16:52] Speaker 05:
I don't think it's routine and clerical because he's comparing, the rule is he has to compare data, right?

[00:16:58] Speaker 05:
So deciding that this person is gonna be better off on the phones because they have phone experience and computer experience.

[00:17:07] Speaker 05:
He said there were three to four who could do that, other people couldn't.

[00:17:11] Speaker 05:
Deciding that this employee is not working out with this patient right now and I could pull a different employee and put them in here.

[00:17:18] Speaker 05:
It's comparing data, it's making decisions and judgment.

[00:17:21] Speaker 05:
I would say that's no different than saying lawyers all have the same training, but the guy who's in jail today representing incarcerated inmates is having a far different day than I am.

[00:17:34] Speaker 05:
And the supervisor who assigns it can affect the way their day goes.

[00:17:38] Speaker 00:
I mean, it may well have an effect, but that doesn't mean it's not routine and clerical.

[00:17:43] Speaker 00:
I mean, the statute sort of envisions that there are circumstances in which someone exercises independent judgment.

[00:17:50] Speaker 00:
But their matters are still routine and clerical.

[00:17:53] Speaker 00:
So it still has to be something other than routine and clerical.

[00:17:58] Speaker 05:
Well, one of the things that the standard says is that it's the ability to affect the employee's work conditions for the night.

[00:18:05] Speaker 05:
And that's really the question here.

[00:18:06] Speaker 05:
Should somebody who can tell you whether or not you're working in a locked unit with violent patients or having to just walk around and check on people sleeping be able to coerce you into signing a union card?

[00:18:19] Speaker 05:
That was the bottom line for this, right?

[00:18:22] Speaker 05:
He's a supervisor.

[00:18:23] Speaker 05:
He's passing out cards telling employees they have to sign them.

[00:18:26] Speaker 05:
Is it okay in this circumstance for him to do that?

[00:18:30] Speaker 05:
And I think the law says it's not because he can affect these employees night to night.

[00:18:35] Speaker 05:
He can issue discipline to them and did.

[00:18:37] Speaker 05:
He can tell them to go to this locked unit with violent patients and work there for your night or walk around and not deal with much.

[00:18:52] Speaker 05:
It just seems to me that that person shouldn't be able to tell the employees he gets to a sign and he gets to discipline, sign this union card.

[00:19:00] Speaker 05:
There's an implicit threat there, or I'll give you a crappy shift, right?

[00:19:06] Speaker 05:
That's a supervisor.

[00:19:07] Speaker 05:
That's why we don't allow them to do that.

[00:19:12] Speaker 05:
I see my time is up.

[00:19:15] Speaker 02:
Okay, thank you.

[00:19:15] Speaker 02:
We'll give you some, Roberta.

[00:19:18] Speaker 02:
We'll hear from the board.

[00:19:25] Speaker 01:
Good morning.

[00:19:25] Speaker 01:
Mr. Weitz.

[00:19:26] Speaker 01:
Yes, good morning.

[00:19:27] Speaker 01:
May it please the court.

[00:19:28] Speaker 01:
Eric Weitz on behalf of the National Labor Relations Board.

[00:19:31] Speaker 01:
I'd like to begin just by clarifying one point on the unlawful surveillance finding to your honor's question.

[00:19:38] Speaker 01:
The board did not find that the passing out of flyers was a separate unfair labor practice in any way.

[00:19:46] Speaker 01:
In fact, the employer had been passing out those flyers throughout this campaign, for example, in the routine course of the day when supervisors were seeing employees.

[00:19:56] Speaker 01:
The board did not find that that was unlawful.

[00:19:58] Speaker 01:
What the board found was as part of this out of the ordinary change in practice when all of these senior managers began coming into the facility to observe employees and to interact with them to try to suss out their union sympathies, part of that was passing out these flyers and observing how they reacted.

[00:20:19] Speaker 01:
But the board's ultimate finding was an unlawful surveillance finding based on the unusual and coercive presence of these individuals.

[00:20:27] Speaker 02:
Based in part on the managers showing up, managers outside the chain of command showing up in odd places at odd hours.

[00:20:37] Speaker 02:
I'll give you that.

[00:20:38] Speaker 02:
But part of it was the passing out the leaflets.

[00:20:47] Speaker 02:
That's correct because that was that shows 23 on page 12 of the appendix.

[00:20:53] Speaker 02:
The board is talking about surveillance and they say that this one on one interaction when the

[00:21:06] Speaker 02:
supervisory employer employees are lawfully passing out literature is part of the surveillance because you know they're not closing their eyes when they lawfully speak to employees you want to defend that well that's absolutely correct your honor but i guess my point is the employer was doing that

[00:21:31] Speaker 01:
in a non-out-of-the-ordinary way.

[00:21:32] Speaker 01:
And the board did not take any issue with that or say that this type of one-on-one persuasion is unlawful.

[00:21:38] Speaker 01:
They're specifically citing this as one of the practices that the managers were doing that highlights how out-of-the-ordinary and coercive this was, because it was not about telling employees to do a good job at work.

[00:21:51] Speaker 01:
As Ms.

[00:21:52] Speaker 01:
Golden credibly testified, the entire purpose of this change in policy was about the union campaign

[00:21:58] Speaker 01:
to identify and potentially observe union activity and try to suss out individual employees opinions about the union.

[00:22:06] Speaker 01:
And so that's why the board found it significant.

[00:22:09] Speaker 01:
But as the board clarified in response to dissenting board member ring, the board's not taking issue with an employer's right to engage in one-on-one persuasion.

[00:22:18] Speaker 02:
One-on-one persuasion is OK.

[00:22:21] Speaker 02:
Correct.

[00:22:22] Speaker 02:
And I mean, assuming it's not, you know,

[00:22:26] Speaker 02:
done in private places or coercively.

[00:22:29] Speaker 02:
The one-on-one persuasion is okay, and then whatever, and assume no interrogation, but if the representative of the employer observes the body language, if the employee volunteers a comment and such, what's your position, can the

[00:22:54] Speaker 02:
manager report that back to senior the senior leaders.

[00:23:01] Speaker 01:
I think I mean I don't want to take a position for the board but I'd note that here the board the employer was doing that in the normal course or in a not course of way and the board did not find that that was an unfair labor practice.

[00:23:14] Speaker 01:
What the board found just to take a step back and sort of highlight the facts of what was going on here is

[00:23:20] Speaker 01:
When you have senior employees, division heads, the head of the facility, coming into locations where they're usually not going, coming in at unusual times, for example, they were coming on the night shift, so you'd have an unfamiliar senior manager coming in at midnight.

[00:23:36] Speaker 01:
interacting with employees in part by handing out these flyers and then watching the employee, the board found that that entire course of conduct constituted unlawful surveillance and was coercive.

[00:23:49] Speaker 01:
The board did not single out the flyer aspect of that.

[00:23:54] Speaker 01:
And that's why, as we argue in the brief, I think the Section 8C argument is sort of in opposite here.

[00:24:00] Speaker 01:
I'd also note that, as we note in the brief, the employer did not raise this to the board and, in fact,

[00:24:05] Speaker 01:
we submit as jurisdictionally barred by section 10e because the employer did not even argue this during the board proceedings.

[00:24:11] Speaker 02:
Put aside preservation just just to tie this down.

[00:24:17] Speaker 02:
The discussion of 8c in this footnote it's a little bit murky but they don't say the

[00:24:29] Speaker 02:
They don't say that the leafletting was done by managers who were oddly out of place and they're in weird hours, in which case, you know, maybe the leafletting collapses into the concern about unusual practices.

[00:24:51] Speaker 02:
What they said was,

[00:24:55] Speaker 02:
the employers may not place employees in a position where they must make an observable choice between support for unionization and opposition.

[00:25:08] Speaker 02:
And that's in the context of this concern about managers reporting back on how employees are reacting.

[00:25:16] Speaker 02:
So this seems to be saying there's a problem with one-on-one leafletting.

[00:25:22] Speaker 02:
because the employer can observe the reaction of the employees.

[00:25:26] Speaker 01:
Well, I think what the board was doing in that footnote was noting in response to member ring that the finding here is consistent with prior board precedent, including what you just cited, your honor.

[00:25:37] Speaker 01:
But I'd note that impliedly this entire discussion is in the context of the

[00:25:43] Speaker 01:
out of the ordinary unlawful surveillance because the board did not make a separate finding.

[00:25:48] Speaker 01:
If you look at the board's conclusions of law or its remedial order, which is before the court, they did not prohibit the employer from leafleting.

[00:25:56] Speaker 01:
They prohibited the employer from engaging in unlawful surveillance.

[00:26:00] Speaker 02:
True.

[00:26:01] Speaker 02:
The count is unlawful surveillance and the

[00:26:05] Speaker 02:
ordering language doesn't break apart the leafletting aspect from the manager on duty program.

[00:26:17] Speaker 01:
If a future case, it was alleged, then the board found that non-out-of-the-ordinary leafletting was an issue.

[00:26:25] Speaker 01:
You know, that would be an interesting question or an issue to litigate in that case.

[00:26:31] Speaker 01:
But in this particular case before the court, I think all that the board ultimately found was that this entire course of conduct was unlawful.

[00:26:38] Speaker 02:
Suppose, just for the sake of argument, suppose there's preservation

[00:26:43] Speaker 02:
on the HC issue and suppose I conclude, we conclude that the board's finding is fine as applied to manager on duty, not fine as applied to leafletting.

[00:27:01] Speaker 02:
Can we unpack those two?

[00:27:03] Speaker 02:
Is there

[00:27:05] Speaker 02:
Yes, sufficient evidence that the manager on duty aspect of it would independently support the finding and that that's what the board would want.

[00:27:15] Speaker 01:
I think so.

[00:27:16] Speaker 01:
I think that was the thrust of the board's finding.

[00:27:18] Speaker 01:
In fact, I think I would submit the strongest evidence here is not the leafletting, but the credited testimony of Miss Golden, who was a manager present at all of these behind the scenes meetings.

[00:27:30] Speaker 01:
And contrary to what my opponent has argued, Mrs. Golden's testimony was very clear that the entire purpose of this change in policy was to target the union campaign and to see if employees were discussing having group conversations to see if they became quiet when managers approached.

[00:27:48] Speaker 01:
and to report back on individual employees and what their union sympathies might be.

[00:27:54] Speaker 01:
So even without the actual flyer aspect, I think that's merely reinforcing the fact that this was not a legitimate business decision.

[00:28:03] Speaker 01:
It was targeting the union in an out of the ordinary way that would be at least have a reasonable tendency to coerce employees, which is the standard for an 801 violation.

[00:28:14] Speaker 01:
I'd also note

[00:28:15] Speaker 01:
just responding to something that came up earlier, the question of this July email with Mr. Weir.

[00:28:22] Speaker 01:
If the court actually looks at that email, the entire email is about how they're worried that the union campaign had started at the facility and he was reporting to the employer's corporate parent and

[00:28:35] Speaker 01:
And part of that email, he said he had already tried to get ahead of it by going around the facility to try to take the temperature of the employees.

[00:28:43] Speaker 01:
So there's no evidence at all that there was this quote unquote manager on duty program that existed prior to the union.

[00:28:49] Speaker 01:
And as Ms.

[00:28:50] Speaker 01:
Golden's testimony makes clear, the timing

[00:28:53] Speaker 01:
Uh, as employees testified when they noticed this change, it was all in response to the union campaign and the employers never presented a legitimate basis for what it was doing.

[00:29:03] Speaker 01:
Having senior managers come in at midnight and unfamiliar units where they could not assist the employees.

[00:29:09] Speaker 01:
In fact, there was testimony that their presence was very disruptive to patient care because, um, they were just getting in the way of these nurses doing their jobs.

[00:29:19] Speaker 01:
Um,

[00:29:20] Speaker 01:
If I could turn, if there aren't any further questions about surveillance, I could.

[00:29:24] Speaker 03:
Can we go?

[00:29:27] Speaker 03:
I'm not sure that the employer's purpose is really relevant, or is even certainly insufficient, absent some finding on tendency to coerce.

[00:29:41] Speaker 01:
Well, it's true that this is a Section 81 violation, so motive is not a requirement of the violation.

[00:29:48] Speaker 01:
It's ultimately just an objective question of, would this conduct have a reasonable tendency to coerce employees given the overall circumstances?

[00:29:56] Speaker 03:
And that question, with respect to various practices, particularly in campaigns,

[00:30:05] Speaker 03:
electoral campaigns has been the subject of reversal and reestablish reversal.

[00:30:12] Speaker 03:
So with respect to certain practices, because as I understand it, that's a matter of judgment within the province of the board.

[00:30:21] Speaker 01:
That's correct.

[00:30:22] Speaker 01:
I think this is a fact bound determination that's uniquely in the board's expertise and determining this.

[00:30:29] Speaker 01:
And I think this case is actually very similar to, for example, the Parsippany Hotel case where this court affirmed the board.

[00:30:38] Speaker 01:
where you had a similar situation where during a union campaign, the employer increased the number of guards at the facility who followed, went around or observed employees in the workplace, some of which was in work areas just going about their daily duties.

[00:30:53] Speaker 01:
And the board in this court found that given the overall circumstances, that would be coercive to employees and would constitute a violation.

[00:31:00] Speaker 03:
But my point is that had the board said that was not coercive, we would have also affirmed.

[00:31:08] Speaker 01:
Well, it would be a substantial evidence standard of review, which I think this entire case is.

[00:31:13] Speaker 01:
So, the board could make a, you know, that's the standard of review.

[00:31:17] Speaker 03:
That's substantial evidence that something was not coercive?

[00:31:21] Speaker 03:
I don't think so.

[00:31:21] Speaker 01:
I think so, because the standard is, you know, could a reasonable fact finder reach a particular conclusion based on this evidence?

[00:31:28] Speaker 01:
So, the board may have reasonably found.

[00:31:30] Speaker 03:
Did you say something was substantial evidence that was not coercive?

[00:31:34] Speaker 03:
I mean...

[00:31:37] Speaker 03:
I guess the union would have standing to object to that, but I'm not sure what kind of presentation could possibly prevail.

[00:31:46] Speaker 01:
I think it's substantial evidence that viewing these facts, there's a factual finding of how it would impact a reasonable employee, and that's something- For a matter of actual employees saying they were coerced or were not coerced, correct?

[00:32:03] Speaker 01:
That's not the standard.

[00:32:04] Speaker 01:
You don't need to have actual coercion, although I would note in this particular case you did have testimony of employees who found this very unusual and, you know, abnormal.

[00:32:15] Speaker 00:
Do you think the board's finding on unlawful surveillance could be supported simply with Leonard's testimony?

[00:32:25] Speaker 00:
Or do you need both?

[00:32:26] Speaker 00:
I mean, there are parts of the board's decision that seem to suggest that Leonard's testimony was sufficient.

[00:32:35] Speaker 01:
Um, I think it probably would be sufficient.

[00:32:37] Speaker 01:
Obviously here you have both as your honor noted earlier, credibility of Miss Golden's not disputed.

[00:32:43] Speaker 01:
But I think Miss Leonard's testimony alone established the fact that these unusual high ranking officials were coming in at unusual hours and employees found it strange in the context of this union campaign.

[00:32:57] Speaker 01:
I think Miss Golden's testimony just really makes it beyond question in my view, at least because

[00:33:03] Speaker 01:
She was present at the planning meetings where the employer discussed why it was doing all this and what it wanted the managers to do.

[00:33:09] Speaker 01:
But even if you didn't have that, which in a normal case, she would not have a manager being so candid.

[00:33:14] Speaker 00:
There just seems some circularity with using Ms.

[00:33:17] Speaker 00:
Golden's testimony because, of course, the employer suggests that she was not really acting as a supervisor and not really acting on behalf of the employer.

[00:33:26] Speaker 00:
And so crediting her testimony about what was happening and why

[00:33:31] Speaker 00:
You know, I do think there's some circularity problems.

[00:33:34] Speaker 01:
Well, I mean, it was not really her testimony about because she actually, as we can get the discharge if you'd like, but she refused to do this.

[00:33:41] Speaker 01:
But her testimony, what was so persuasive, I think, is she was testifying about the group meetings.

[00:33:48] Speaker 01:
where the employer and the union of ordinance consultants met with the managers and also individual meetings with her and explained what the purpose of this policy was and what the employer wanted the managers to do to go throughout the facility and to observe employees and specifically about the union.

[00:34:07] Speaker 01:
But again, I would just emphasize that the employers never challenged her credibility as a witness, even if she may have conflicting interests in this case, obviously.

[00:34:17] Speaker 02:
I speak talk about the ND supervisor issue.

[00:34:25] Speaker 02:
Seems to me a close question, but the board's rationale seems a little hard to defend.

[00:34:34] Speaker 02:
The board said that the assigning tasks did not involve independent judgment because

[00:34:47] Speaker 02:
There was no objectively wrong answer to the decisions and relatedly, everyone on staff of the CSS employees were capable of performing all the tasks.

[00:35:05] Speaker 02:
I would think those considerations tend to prove that there was independent judgment.

[00:35:12] Speaker 02:
If there's a clearly wrong answer, if you're just doing math or something, that's not independent judgment.

[00:35:20] Speaker 02:
I think the point that the board... And the judgment is there's no obvious answer.

[00:35:27] Speaker 02:
We write difficult opinions and the majority might be right, the dissent might be right.

[00:35:38] Speaker 02:
open-ended, debatable nature of the decision is exactly what proves that there's independent judgment.

[00:35:45] Speaker 01:
I think that's absolutely right, Your Honor.

[00:35:46] Speaker 01:
And I think the board was making a separate point, because it's also a principle under board law that if the outcome is obvious, for example, you have one employee who can do a particular skill, that is not independent judgment.

[00:35:59] Speaker 01:
I think the point the board was making here, specifically in contrasting this case with Oakwood Health Care, for example,

[00:36:08] Speaker 01:
Just as an illustrative example, that was a case where you had a charge nurse at a hospital and the decisions that the charge nurse was doing and matching patients to nurses based on skills and a plethora of factors could have life and death decisions.

[00:36:22] Speaker 01:
These are significant.

[00:36:23] Speaker 01:
discretionary calls that the supervisor has to make.

[00:36:27] Speaker 01:
Obviously supervisor authority doesn't need to rise to that level, but it is independent judgment is a question of degree where the board makes discretionary determination.

[00:36:38] Speaker 01:
Was this independent judgment sufficiently important?

[00:36:43] Speaker 01:
Did it require sufficient

[00:36:45] Speaker 01:
evaluation of data or supervisory consideration to rise to the level of to deny someone all of their rights under federal law.

[00:36:55] Speaker 01:
And what the board was saying here is that the decisions that Mr. Endy made when he was assigning employees were very routine and mundane because all of these employees have the same training.

[00:37:06] Speaker 01:
They're all capable of performing the handful of regular postings that their

[00:37:13] Speaker 01:
de facto rotated between.

[00:37:14] Speaker 01:
And so there wasn't any supervisory, meaningful choices that he had to make because he simply took into account preferences, whether employees had been in a particular assignment too often recently.

[00:37:32] Speaker 01:
He made an obvious choice, which I think goes to your honor's point, where if you had a female employee, he would make sure that they were assigned with a more senior coworker

[00:37:41] Speaker 01:
when they were assigned to the unit where you potentially had sexually violent patients.

[00:37:46] Speaker 03:
Well, was that a policy shared by all the others or was that this individual's determination of what would be inappropriate?

[00:37:56] Speaker 01:
I don't know if there was testimony about what Ms.

[00:37:58] Speaker 01:
Cruz did or Mr. D'Abreu, but I would submit that that's a sort of self-evident, obvious determination.

[00:38:06] Speaker 01:
And I'd also note that he did not... I don't know.

[00:38:08] Speaker 03:
I think somebody could equally look at that and say, gee, I'm not supposed to discriminate on the basis of gender, so I'm going to treat everybody alike.

[00:38:18] Speaker 03:
I mean, it's like, you know, they joined up for the Army, they joined up for this job.

[00:38:23] Speaker 01:
Well, I would note, Your Honor, that he didn't exclude any employees from this unit.

[00:38:27] Speaker 01:
He just made a sort of routine administrative call that I'm just going to make sure that that employee is paired with a more senior coworker when that situation arose.

[00:38:37] Speaker 03:
But again, I just... But that may have been... All we know is that he did that.

[00:38:41] Speaker 03:
We don't know whether that was...

[00:38:42] Speaker 03:
Whether it was routine and everyone else did it or it was his decision, his prudence that led him to that.

[00:38:49] Speaker 01:
That's true, Your Honor.

[00:38:49] Speaker 01:
I would make an overall point in response to that question, which is just to highlight to the court that this entire inquiry, the employer has the burden of proof.

[00:38:58] Speaker 01:
And for some of these factors, the board and the ALJ noted that really the determination was based on the fact that the evidence just wasn't conclusive, which is employer did not satisfy its burden to show that he was exercising independent judgment.

[00:39:15] Speaker 01:
And I'd also note that it's certainly true that Mr. Endy exercised some discretion, but the framework under Section 211, as the Supreme Court has pointed out, recognizes that you'll have lead employees.

[00:39:28] Speaker 01:
I think Mr. Endy is a quintessential lead employee who perform minor supervisory duties.

[00:39:34] Speaker 01:
That's separate from the question of whether their duties rise to the level to satisfy the three factors under Section 211.

[00:39:44] Speaker 01:
including assignment with independent judgment.

[00:39:47] Speaker 01:
And why is that?

[00:39:50] Speaker 02:
And the statute says assignment assignment is a supervisory function.

[00:39:58] Speaker 02:
There's no dispute that he was engaged in assignment.

[00:40:03] Speaker 02:
And then the question of the independent judgment, the,

[00:40:10] Speaker 02:
degree of difficulty, importance, open-endedness of those assignment decisions.

[00:40:20] Speaker 02:
They just are what they are.

[00:40:22] Speaker 02:
They don't turn on anything else he was or wasn't doing.

[00:40:28] Speaker 01:
Well, that's true, Your Honor, but I think it is necessarily a discretionary call of whether this particular, what the evidence shows, what was proven as to this particular assignment authority, whether that rises to the level of independent judgment, because certainly any kind of assignment where it's not written out for you in advance requires some discretion.

[00:40:50] Speaker 01:
But I think it's well established that if you're just doing something routine or administrative, as I think Mr. Endy was here,

[00:40:56] Speaker 01:
that that's not statutory supervisory authority, it's not sufficient to deny someone all of their protections under federal law and as this court has recognized and as we cite in our brief this court has held that that's uniquely within the board's expertise and that the court affords additional deference to that determination.

[00:41:16] Speaker 02:
One theory that you might the board might have pressed but didn't

[00:41:21] Speaker 02:
is the one I was asking your friend about, which is these assignments were a very small fraction of ND's overall shift.

[00:41:34] Speaker 02:
Is there some reason why the board did not stress that?

[00:41:40] Speaker 01:
Um, I know your honor, there is a doctrine.

[00:41:42] Speaker 01:
I don't want to misstate what it is since it wasn't litigated where a supervisor can be forming, performing supervisor duties on such a ad hoc basis that it's not sufficient.

[00:41:54] Speaker 01:
I think perhaps the board here didn't go that route because this was admittedly a regular part of Mr. Endy's duties.

[00:42:01] Speaker 01:
He did this on a regular basis and courts have held that any, you know, as long as you have the authority,

[00:42:07] Speaker 01:
and exercise it on some occasion, that can be sufficient.

[00:42:11] Speaker 01:
And so I think the board didn't need to get into your honor's point because they found on the threshold that what he was doing wasn't supervisory at all, regardless of how much time it took.

[00:42:22] Speaker 02:
I would make a factual... So you're comfortable with us deciding the supervisor question.

[00:42:29] Speaker 02:
just looking at what he was doing during those 15 minutes or 45 minutes or whatever it was.

[00:42:39] Speaker 01:
I think yes you could have supervisory assignment authority even if it wasn't a like the charge nurses in Oakwood where that was mainly their full job throughout the day.

[00:42:52] Speaker 01:
You could have a more limited duration and it could still constitute supervisory assignment.

[00:42:58] Speaker 01:
I would just make a factual clarifying point here, Your Honor, since there was some discussion about the time.

[00:43:03] Speaker 01:
that it took.

[00:43:04] Speaker 01:
I think Ms.

[00:43:05] Speaker 01:
Cruz testified that on the long end it would be 30 minutes.

[00:43:11] Speaker 01:
The board credited the idea was 15 minutes.

[00:43:13] Speaker 01:
I think Mr. Endy actually testified it was even less.

[00:43:16] Speaker 01:
And Ms.

[00:43:17] Speaker 01:
Cruz, when she noted it was 30 minutes because of the call-outs, that was because she was essentially waiting for employees to arrive and that could take a while.

[00:43:25] Speaker 01:
It wasn't because she was sitting down deliberating for 30 minutes.

[00:43:30] Speaker 03:
Are there any further questions about... What was the case you referred to when you used the phrase making life, I presume metaphorically, life and death decisions?

[00:43:42] Speaker 01:
Well, that was Oakwood Healthcare.

[00:43:44] Speaker 01:
I think it was a literal determination there.

[00:43:47] Speaker 01:
The employer cites Oakwood as supporting its position here, but that case involved charged nurses at a hospital.

[00:43:54] Speaker 01:
And as patients came in, they had to assign patients to particular nurses based on that patient's issues, based on the nurse's skill, based on all myriad factors.

[00:44:05] Speaker 01:
And that's why the board found supervisory authority there, which is very different than

[00:44:09] Speaker 02:
And the CSS line people are more like orderlies, I assume.

[00:44:14] Speaker 01:
Exactly.

[00:44:15] Speaker 01:
They're not medical professionals.

[00:44:17] Speaker 01:
They all receive the same very basic training.

[00:44:19] Speaker 01:
And they are essentially orderlies.

[00:44:21] Speaker 01:
And they patrol the building or observe people and have some sense of enforcing security.

[00:44:27] Speaker 01:
If there aren't any further questions about Mr. Endy or any of the other disputed unfair labor practices.

[00:44:34] Speaker 02:
I think we are good.

[00:44:36] Speaker 02:
So thank you very much.

[00:44:37] Speaker 01:
We'd ask for full enforcement.

[00:44:38] Speaker 01:
Thank you.

[00:44:45] Speaker 05:
bottle bottle.

[00:44:48] Speaker 05:
Let's start with those life or death decisions.

[00:44:50] Speaker 05:
There's certainly possibility of a life or death decision when you assign the wrong person to deal with a violent patient in the MBI unit.

[00:44:57] Speaker 05:
There's certainly the possibility of a life or death decision when you assign the wrong person to entertain one of the brain injured patients down below and it gets them more agitated and upset than helping them.

[00:45:08] Speaker 05:
I understand these aren't nurses, but there is the same considerations of can this person do this job?

[00:45:15] Speaker 05:
Can they be with this person?

[00:45:16] Speaker 05:
Can they handle them all night?

[00:45:18] Speaker 05:
It's not the case.

[00:45:19] Speaker 02:
There is a difference in degree, right?

[00:45:23] Speaker 05:
Well, there's a difference in skill set.

[00:45:27] Speaker 05:
I don't know if there's a difference in degree.

[00:45:29] Speaker 05:
You know, a nurse is a nurse.

[00:45:31] Speaker 05:
A nurse can perform all of their nursing functions.

[00:45:34] Speaker 05:
If we're talking about the only renal care nurse being assigned to the only renal care patient, there's no discretion there.

[00:45:40] Speaker 05:
I would argue there's more discretion here where we're talking about employees having to match closely with the patients that they're caring for.

[00:45:48] Speaker 05:
There was no policy that excluded women from working alone at MBI, and in fact, the records which start on A622 will show Josie Cruz worked alone in MBI as a female employee.

[00:45:59] Speaker 05:
There were others, I think Anita Rogers worked alone in MBI as a female employee.

[00:46:03] Speaker 05:
There's no policy that they couldn't.

[00:46:05] Speaker 05:
Mr. Endy said he preferred not to, and he didn't find it to be the most productive.

[00:46:11] Speaker 05:
That's okay.

[00:46:12] Speaker 05:
That's his discretion and judgment.

[00:46:13] Speaker 05:
But it wasn't the case that nobody had that.

[00:46:16] Speaker 05:
I think it's important.

[00:46:17] Speaker 05:
A 169, Josh Endy testified they had tried a strict rotation where employees simply were rotated and it did not work.

[00:46:25] Speaker 05:
They went back to having the supervisors make those decisions.

[00:46:29] Speaker 05:
I think that only shows that there had to be discretion.

[00:46:33] Speaker 05:
I would also point out that while no judge the judges declined to consider it he did also issue discipline to employees including doing third step write-ups all on his own and that's in the record.

[00:46:45] Speaker 05:
In terms of the outside the chain of command I think it's important these were not the people from corporate that came in and started running around these were people employed at the facility.

[00:46:55] Speaker 02:
Now you're back to surveillance.

[00:46:58] Speaker 05:
Yeah, the department heads were not outside the chain of command.

[00:47:00] Speaker 05:
Their employees were working when they were there on these units.

[00:47:04] Speaker 05:
Their employees work throughout the building.

[00:47:06] Speaker 05:
They just may not have been assigned a particular unit.

[00:47:09] Speaker 05:
I see that I'm out of time.

[00:47:11] Speaker 02:
Thank you.

[00:47:13] Speaker 02:
Thank you.

[00:47:13] Speaker 02:
The case is submitted.