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Case number 23-1100, Ed Al.

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Strong produce company, Inc.

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Petitioner versus National Labor Relations Board.

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Mr. Scully for the petitioner, Mr. White for the respondent.

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Mr. Scully.

[00:00:17] Speaker 05:
Good morning and may it please the court.

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The National Labor Relations Board has applied a presumption of guilt to a small family owned produce company in Phoenix.

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And accordingly, their order is not supported by substantial evidence.

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To suggest that a union only files meritorious unfair labor practices is to deny a modern reality.

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It's true that the agency years ago found numerous violations committed mostly by a consultant Stern unfortunately hired in 2015.

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However, the agency has also dismissed numerous allegations levied against Sturm in the same timeframe and since.

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Obviously, the company cannot claim its prior compliance should excuse its conduct in this case.

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Why does the agency get to conclude that no employer who has previously violated the law can ever act lawfully again?

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Administrative law Judge Montemayor got it right.

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There's no evidence of discrimination here.

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Unless you consider the egregiously insensitive and discriminatory outbursts of Mr. Ponce, his homophobic racist and Islamophobic rant towards other drivers.

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This agency seems to suggest that Stern made all of this up or embellish the circumstances, but we asked to what end?

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So we could sustain a written warning?

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Were the statements of Mr. Ponce not offensive enough?

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The Board has departed from its precedent by essentially removing causation from the initial right-line tests and further by deconstructing Stern's legitimate reason for discipline in the day, requiring a quantum of proof that's more akin to beyond a reasonable doubt than a preponderance of the evidence.

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Add to this this agency's completely unsubstantiated and unique claim that asking an employee to uncover a camera that has been in the employee's cap for years reasonably creates the impression of surveillance.

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Let me ask you about that.

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We don't know from the record, do we, why Ruiz covered his camera?

[00:02:29] Speaker 05:
We do not, Your Honor.

[00:02:30] Speaker 01:
Okay, and why isn't it a reasonable inference

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that he covered it because he thought he was being watched.

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I mean, we've got cameras all over the world now, and we're probably obviously when we don't know it.

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But that's my question is, why did he cover it?

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And I don't think the record indicates that he covered it every time he had a lunch break.

[00:02:59] Speaker 05:
It does not, Your Honor.

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And there's no record evidence regarding that.

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The fact of the matter is that those cameras were installed years before.

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And in fact, the union filed an unfair labor practice charge over that, which was withdrawn, which usually means it's on pain of dismissal.

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So for years, he knew that he was being watched at all times.

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And moreover, in his testimony, Mr. Ruiz suggested that he could be observed even though he had covered up the camera.

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Because of the record itself, it's clear that no one knew that he was on break.

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The only thing that is indicated is that the text message sent from Mr. Barr was about uniform sizing initially.

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And in that regard, he also added the phrase, don't cover your camera, which is set forth in the driver's manual that Mr. Ruiz testified he knew about.

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He knew that the camera was to remain on at all times in his direct and cross-examination.

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I think, Your Honor, that this case demonstrates why appellate review of NLRB orders cannot be a rubber stamp.

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What happened in this case is that the agency just simply decided to find violations based on Stern's prior violations and alleged conduct in a settled case.

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Consider the reverse.

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If an agency dominated by employer interests overturned clear violations because it regarded the employer to be largely compliant with the act in prior cases, obviously that could not stand.

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This court has pointed out that while the substantial evidence test is not modified every time the administrative law judge and the board disagree, the ALJ's rejected factual findings are a factor for the court to consider.

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And I ask the court to pause on the quantum

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of factual findings by the administrative law judge that the board overturned.

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Here are some of them.

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That it was not out of the ordinary for the company to require the in-cab camera to remain uncovered.

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That a reasonable person could not conclude that the following message could give someone the impression of surveillance.

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Quote, got the uniform for sizing bud and you can't cover the camera against, it's against company rules, end quote.

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That Mr. Ruiz could not have known that Mr. Barr did not normally check the cameras as that testimony only came out during the hearing.

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That there was no evidence that supported a conclusion that Mr. Ponce's written warning was in retaliation for union or protected activity.

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that Mr. Ponce's at least three clear violations of the policy were not comparable to other lesser violations of the anti-discrimination policy, that Stern does not follow a strict progressive discipline policy, that Muhammad Chayko, the target of the comments of Mr. Ponce, was legitimately bothered by the comments, that Stern would have taken the disciplinary action regardless of Mr. Ponce's alleged union activity and activity with the board.

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These are all the pertinent factual findings of this case.

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In short, the agency's position amounts to innuendo based on CERN's prior conduct and allegation.

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There's an oral reprimand.

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Does the supervisor or the company employee make a note of that in the individual's personnel file?

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Yes, Your Honor, there's actually a form.

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And I think that one of the mistakes that the agency made in this case, Judge Randolph, is that it concluded that because the form indicated a verbal counseling, that it applied a strict disciplinary policy.

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But during the hearing, the agency had subpoenaed all the permanent managers of this small company and had ample opportunity to establish that there was a progressive disciplinary system.

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There was not.

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There were cases that were elevated.

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And I think that what you're getting to, Judge Randolph, is the disparity that the agency tried to point to regarding the discipline of an employee by the name of Andre Woods.

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And the agency tried to say that Andre Woods had been given a prior discipline.

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He had not been given a prior discipline.

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and pointed to two violations of the anti-discrimination policy result in a written warning.

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Mr. Ponce's case, there were arguably three.

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The comments that stereotyped gay people, comments that assumed Mr. Daco was of Arab descent or Muslim faith, and then also, of course, suggesting that Muslims want to kill gay people.

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So I'm looking at the

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anti-harassment policy of the company, which says discipline may include, but it's not limited to, reprimand, suspension, demotion, transfer, and discharge.

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So, Ponzi's discipline was, which one of those?

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Was it a reprimand?

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Yes, it was a written warning.

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Why does it matter whether it's written or oral?

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if that's going into the individual's file anyway, if it's oral.

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Well, I think that that's the point, Your Honor, that there was this unusual deconstruction of this small company's disciplinary policies.

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A written warning, again, is a lower form of discipline.

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I would suggest very modest under the circumstances of this case to essentially, in other circumstances, an individual would likely be terminated for saying these things in the workplace.

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Yeah.

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I did try to reserve two minutes.

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I just would like to sum up.

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On the law, if I may, there's no- I have another question about the other, you know, the camera surveillance thing.

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Is it in the record that the company supervisor can communicate in sort of a Zoom-like fashion by looking at a person and talking to them on the telephone?

[00:09:07] Speaker 05:
There's no audio for the camera, Judge Randolph, but when the supervisor pulls up a driver, a live feed of that driver's front-facing and cab-facing camera comes up, and that is in the record and also was the subject of this program.

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The reason I'm asking is because the message that was sent, dealt with his uniform was ready or something like that.

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Yes, sir.

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And I guess you could inform him

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of that simply by the telephone itself, right?

[00:09:42] Speaker 05:
Indeed.

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It appears that Mr. Barr texted Mr. Ruiz about the uniform sizing once he had determined that Mr. Ruiz was in a stopped status so that he could receive the text message, but the record does not provide that detail.

[00:09:59] Speaker ?:
Okay.

[00:10:00] Speaker 01:
But isn't it also true that this bar is

[00:10:06] Speaker 01:
That's what I was wondering.

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When he texts drivers, which he testified to, that he did regularly, he checked first on the camera to see if they were stopped and so forth.

[00:10:20] Speaker 01:
Doesn't the record reflect that he'd never done that before?

[00:10:24] Speaker 05:
The record just reflects that he didn't recall sending the particular text in this case, Your Honor.

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It's somewhat limited on the details.

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He said that he had circumstances in which he checked the camera involving short stops and things of that nature.

[00:10:46] Speaker 01:
Thank you.

[00:10:58] Speaker 02:
Good morning, may I please the court, Eric Weitz on behalf of the National Labor Relations Board.

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This case involves two narrow unfair labor practices based on facts found inquiries by the board, which are subject to the familiar substantial evidence standard of review.

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which, as this court has recognized in cases cited in our brief, is even more absent than normal in the specific factual context where the board is evaluating the impact of an employer communication on an employee and evaluating potential discrimination.

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Turning first to the impression of surveillance violation involving Mr. Ruiz, the very first point I was going to begin with was the question you asked Judge Henderson about what the record shows in this case.

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Many of the employer's claims against the board's findings are based on factual assertions that simply have no support in the record.

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So as to the question of Mr. Barr's practice,

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I think Mr. Barr's testimony is very persuasive in this case as to the board's findings.

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Number one, as your honor noted, he testified at Joint Appendix 274 that he regularly texted and called employees during the day, given that they were out in their trucks and he needed to communicate with them.

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At the same time, he testified at Joint Appendix 270, Joint Appendix 275 that he simply did not access these cameras normally.

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He very clearly testified that these cameras were a safety device.

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The footage that they recorded were safety device, which was meant to be used in case of an accident.

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So you would have coverage for liability for the driver and for the company, and you could show that an employee was not on their phone, etc.

[00:12:42] Speaker 01:
So his testimony... What was the one about us, if he stopped for two hours?

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Because as I understand it, this camera is computerized and it's... I mean, nobody's actually looking at the camera, but the camera tells somebody that a driver has stopped for two hours or more.

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What's the purpose of that?

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The prologue of his own or something or what?

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I mean, I guess he has the ability to access the cameras.

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And he testified how the system works is it's a camera mounted on the center of the windshield, which shows the entire cab.

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It's on 24-7, even when the truck is off, because it also serves as an anti-theft device.

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It's always running and recording.

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And this company, Samsara, has fleet software that you need to enter user ID and password and log in.

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and deliberately go in and pull up an individual driver.

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And if you do that, you can see the camera.

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And so he did that's what I'm asking.

[00:13:46] Speaker 01:
Well, I'm asking what the what purpose the board policy, I mean, I'm sorry, the company policy of checking the camera or the camera alerting them when somebody has stopped for two hours or more.

[00:13:58] Speaker 02:
Yeah, I don't know if that was a formal policy.

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Mr. Barr testified that that was his practice in response to a question of what were these scenarios when you would ever look at someone's camera?

[00:14:08] Speaker 01:
All right.

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Did he say why he followed that particular policy?

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Yes, I believe his testimony was, you know, if if something is abnormal, like in a driver in an area, they're not supposed to be or has been stopped for a long time.

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He can check on them.

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There's no claim that that was the situation here.

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Mr. Reed would just stop for his regular.

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lunch break.

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And I'd also note that I think tellingly Mr. Barr denied having ever sent this text and the employer did not examine him and elicit testimony about the circumstances of this text.

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So the claim that on this circumstance, the reason that he was checking the camera was to make sure Mr. Ruiz was stopped in order to text him

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that simply has no basis in the record and is actually directly contrary to his testimony about what his normal practice was.

[00:15:00] Speaker 02:
We don't actually have anything in the record explaining why Mr. Barr accessed the camera at all, which was a key component of the board's finding that this was highly unusual and would have been perceived as such by Mr. Ruiz or a reasonable employee in his circumstance because

[00:15:16] Speaker 02:
There's no evidence of the employer having ever indicated to an employee that just while they were going about their regular job duties, they were being watched, nor is there any.

[00:15:27] Speaker 01:
Why did we cover the camera if he didn't think he was being watched?

[00:15:34] Speaker 02:
Well, he testified that it was on his lunch break.

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The understanding was that these cameras are for safety purposes.

[00:15:41] Speaker 02:
That's at Joint Appendix 456, where he's affirming that he had an understanding of why these cameras were in the truck, which is that while you're driving and moving, it's a safety device.

[00:15:53] Speaker 02:
So he testified that he did cover it for privacy, but I don't think that supports the employers further assertion that that means he thought he was being watched all the time and this was totally normal.

[00:16:05] Speaker 02:
For example, I'm sure you know many of us in the courtroom.

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have cameras on our personal laptops and may feel some type of, I think many people cover their camera out of some ambient concern about privacy, that doesn't mean they actually believe they're being watched at all times for no reason.

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This was the only instance in the record of an employee having been sent that message or told that that was the situation.

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And also, I would note that Mr. Ruiz clearly testified, and there's no evidence to the contrary, that he had never been instructed that he couldn't cover his camera during his lunch break.

[00:16:43] Speaker 01:
That brings up footnote seven in the board order, which I think is an absurd position.

[00:16:54] Speaker 01:
The board says, but the manual says when it can be turned off or disconnected.

[00:17:02] Speaker 01:
And you have to be specifically authorized for that.

[00:17:05] Speaker 01:
Then it says, but the manual does not address employees covering their cameras during break periods.

[00:17:11] Speaker 01:
And why doesn't the greater subsume, I mean, it doesn't say you can't turn it backwards or you can't turn it upside down either.

[00:17:22] Speaker 01:
I mean, if you can only,

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disconnect or turn it off with authorization.

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That has to include and you can't cover it either.

[00:17:34] Speaker 02:
Well, Your Honor, I think it's less absurd.

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Once you go through Mr. Barr's testimony, I'd point the court to Joint Appendix 251 to 266, where he explains the purpose of these cameras and how they work.

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They're on and connected to the truck's CPU 24-7.

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And so as I mentioned earlier, even when the truck is parked and no one's in it, the cameras are running.

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They're meant to be on as an anti-theft device.

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So they're just always on and not disconnected.

[00:18:05] Speaker 01:
Well, they can be though.

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They can be just obviously.

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Correct.

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Yeah.

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And so I think the policy and I think it's a reasonable reading of the policy is that it's saying don't unplug this camera and disconnect it.

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That's what is specifically being prohibited.

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But it doesn't say we need to be seeing you at all times so we can randomly check your camera and check up on you.

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As I noted earlier at Joint Appendix 456, Mr. Ruiz, consistent with Mr. Barr, explained that everyone understood the purpose of these cameras were for liability in case of accident, for traffic safety.

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So there's no reason that an employee would have believed that part of the purpose of having the camera was so that while he's parked for lunch, his employer can check in on him.

[00:18:49] Speaker 02:
I'd also note in response to your question, Judge Randolph, there was specific testimony that this is not a Zoom-type device where you can communicate back and forth.

[00:18:59] Speaker 02:
It's a soundless camera, and the actual communication occurred through the employees' cell phones through texting or calling.

[00:19:07] Speaker 03:
What evidence did the board have to indicate that the cameras were used for surveillance of union activities?

[00:19:19] Speaker 02:
Well, they didn't, the board didn't find an actual surveillance finding, your honor.

[00:19:23] Speaker 02:
They found an impression of surveillance.

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So there was no specific finding that actual union activities.

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What basis did Ruiz have then for assuming or having the impression that he was being watched for engaging in union activities?

[00:19:40] Speaker 02:
I think the board considered the totality of the circumstances.

[00:19:43] Speaker 02:
And so number one, I hope they do.

[00:19:45] Speaker 03:
Yeah.

[00:19:46] Speaker 02:
I mean, well, that is the board.

[00:19:47] Speaker 03:
That's a totally empty phrase.

[00:19:49] Speaker 03:
I mean, well, who knows of a case that didn't consider the totality of the circumstances.

[00:19:56] Speaker 02:
That's fair enough, Your Honor.

[00:19:57] Speaker 02:
I only pointed out that there's not a specific, you know, the board considered the full context here.

[00:20:02] Speaker 02:
And so number one, you had the fact that Mr. Ruiz had been a longtime union supporter.

[00:20:09] Speaker 02:
He'd been a previous target of unfair labor practices, and he had just returned to work less than three weeks before this incident.

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as a result of a settlement alleging that he had been unlawfully bailed to be recalled from the layoff because he was a union supporter.

[00:20:25] Speaker 03:
So if you're a union supporter, you can cover the cameras.

[00:20:29] Speaker 03:
Is that the idea?

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because otherwise you might be thinking, oh my goodness, I'm being watched.

[00:20:36] Speaker 02:
Well, that's the first circumstance.

[00:20:38] Speaker 02:
But I think the second circumstance, and which is consistent with board law in this area as well as this court's law, is that when an employer does something out of the ordinary,

[00:20:49] Speaker 02:
that can convey an impression to a reasonable employee that they are being targeted in connection with their protected activity.

[00:20:57] Speaker 02:
So if the employer had regularly done this and regularly told employees that you cannot cover your camera or sent them messages indicating that they were being watched on their breaks, that would likely not be an unfair labor practice.

[00:21:11] Speaker 02:
But as I was discussing earlier, what's significant about this case is that- Was a manual?

[00:21:17] Speaker 03:
that said you have to keep the cameras on at all times?

[00:21:22] Speaker 02:
Well, that's where the board had a different interpretation of that manual.

[00:21:26] Speaker 02:
I think it's reasonable to infer that what the manual is saying is you cannot disconnect this device.

[00:21:31] Speaker 02:
But no, there's no evidence that employees had received a general instruction, certainly not Mr. Rees.

[00:21:37] Speaker 02:
He specifically

[00:21:38] Speaker 02:
testify to the contrary, that he could not cover his camera while he was stopped and not moving in his vehicle, which is contrary to the understood purpose of these cameras, which is a traffic safety and liability device while the vehicle is moving and you might have a traffic accident.

[00:21:56] Speaker 03:
So this camera only showed what was going on within the cab itself?

[00:22:02] Speaker 02:
Well, there's a forward facing camera that watches the road and an inward facing camera, which the testimony was is so, for example, if you're in a traffic accident, you want to have a recording of the driver to show that the driver was not on his phone, that no one can make a claim against the driver of the company, et cetera, so that you're protected.

[00:22:22] Speaker 02:
And Mr. Barr was very clear that that's the purpose of the camera and the

[00:22:28] Speaker 02:
abnormal situations when he actually checks the camera.

[00:22:31] Speaker 02:
If there's an accident or a harsh braking event or, Your Honor's question, other unusual situations like a driver being stopped somewhere for a very long period of time.

[00:22:41] Speaker 02:
He did not check them just as a normal course of his job duties or explain why he did in this situation.

[00:22:49] Speaker 01:
Let me ask you this.

[00:22:50] Speaker 01:
I thought you said that I want to get your answer.

[00:22:54] Speaker 01:
clear to Judge Randolph, the driver safety manual requires, quote, all vehicle safety systems, telematics, and dash cams must be rain on at all times unless specifically authorized to turn them off or disconnect.

[00:23:10] Speaker 01:
Now, did you say that Ruiz had no knowledge of disconnect?

[00:23:19] Speaker 01:
thing that's in the manual?

[00:23:20] Speaker 02:
No, Your Honor, I was just making the point that I had been making earlier that the board's reading of that language is that the employees cannot turn this device off or disconnect it, which is different than leaving it unobscured while they're parked in their truck.

[00:23:35] Speaker 02:
The device here was still running.

[00:23:36] Speaker 01:
And we've been through that.

[00:23:38] Speaker 01:
Correct.

[00:23:38] Speaker 01:
If you're told and you know, don't turn this thing off, that included in that is, don't cover it,

[00:23:47] Speaker 01:
don't play with it, don't break it.

[00:23:49] Speaker 01:
I mean, I don't know how specific they have to be.

[00:23:52] Speaker 01:
I want to ask you about the board order on J718, left column, the last full paragraph on the left column.

[00:24:08] Speaker 01:
The general counsel alleged that under these circumstances Barr's July 13th interaction with Ruiz unlawfully created the impression that Ruiz and then it says in any of his potential union activity was under surveillance.

[00:24:27] Speaker 01:
Now if he hadn't been on his lunch break,

[00:24:30] Speaker 01:
he would have had no business in being involved in union activity.

[00:24:35] Speaker 01:
I mean, he's on an eight hour work shift and, but for the word potential, he isn't supposed to be engaged in union activity while he's driving this truck.

[00:24:48] Speaker 02:
Yes, your honor.

[00:24:49] Speaker 02:
And I question actually, I think addresses both components of what you just said, both the fact that you could read the policy as saying employees can't cover their camera and you could say that employees while they're on working time can be observed.

[00:25:05] Speaker 02:
That's true.

[00:25:05] Speaker 02:
But the board's finding here was actually broader than a finding that when Mr. Barr accessed the camera, he might have accidentally seen union activity.

[00:25:15] Speaker 02:
What the board found here was an 8A1 impression of surveillance, which is that the mere message to an employee that they're being singled out and watched

[00:25:24] Speaker 02:
has a reasonable tendency to coerce employees, even if he was not engaged in union activity at the time, or even if he had never engaged in union activity in the past in his truck.

[00:25:34] Speaker 04:
What union activity could possibly be picked up by this camera?

[00:25:40] Speaker 04:
He's off in the truck, he's either driving or he's having lunch by himself.

[00:25:44] Speaker 04:
This is surveillance targeted perfectly not to pick up protected activity.

[00:25:50] Speaker 02:
Well, I don't think the record shows that, Your Honor.

[00:25:52] Speaker 02:
This is the driver's primary work site throughout the day.

[00:25:56] Speaker 04:
So as we note that the truck, so people, coworkers are coming into the truck to sit with him to organize during his lunch break.

[00:26:05] Speaker 02:
Well, Your Honor, as we don't in our brief, they could be having discussions.

[00:26:08] Speaker 02:
They could be talking.

[00:26:09] Speaker 02:
The camera wouldn't pick up the audio.

[00:26:12] Speaker 02:
Well, I wouldn't pick up the audio, but I would submit that it's still, even if it doesn't have audio, the fact that your employer is watching you have a conversation still highly coercive.

[00:26:21] Speaker 04:
Your employer has a camera pursuant to a generally applicable previously published policy with all sorts of perfectly legitimate business justifications.

[00:26:32] Speaker 04:
Well, again, as I was noting... It seems completely different from the case where, you know, someone three levels up the chain of command all of a sudden is sitting in the passenger seat for a ride along.

[00:26:45] Speaker 02:
Sure, your honor.

[00:26:46] Speaker 02:
But what that case was going to, which is, I think, similar to this case, which is that you can have coercion even if there's not actual surveillance of union activities.

[00:26:54] Speaker 02:
The mere message to an employee that they're being singled out and monitored more closely than normal is coercive under existing law.

[00:27:03] Speaker 04:
Your theory on the first charge is not discrimination based on union activities.

[00:27:08] Speaker 04:
It's that the employer is surveilling union activities.

[00:27:13] Speaker 04:
And I just don't see what

[00:27:15] Speaker 04:
activities are respectfully your honor that's that's not the unfair labor practice that the board found there's a delineation under board law between an actual binding of union surveillance and an impression of sir creating an impression of surveillance of protected activity correct creating our inference if the camera is targeted to times and places where it's very unlikely that there will be protected activity

[00:27:42] Speaker 02:
Well, Your Honor, I would, again, push back against the factual assertion that it's very unlikely here.

[00:27:47] Speaker 02:
But I think the cases support the board's finding that even if he had not in the past engaged in union activity or even planned to in the cab of his truck, it's still coercive if your employer, which it had never done to any other driver, is indicating that it is watching you during the day.

[00:28:04] Speaker 02:
So for example, this court in Parsippany Hotel affirmed a similar finding where

[00:28:11] Speaker 02:
guards began following employees around throughout the workday and essentially intimidating them.

[00:28:17] Speaker 02:
In Meck Arden, this court affirmed an unfair labor practice where employees were told that while they're going about the facility, they might be recorded, when in fact, that wasn't even true.

[00:28:26] Speaker 02:
And that was not tied to any specific instance of union activity.

[00:28:31] Speaker 02:
What the court affirmed there correctly was that that is coercive to employees because you are singling them out in a way that you have not done to any other employee.

[00:28:40] Speaker 02:
So again, even if this was even assuming there was a rule against covering your camera, there's still no explanation as to why Mr. Ruiz was filled out.

[00:28:50] Speaker 03:
And I think that's the board have a acknowledge the de minimis doctrine.

[00:28:58] Speaker 03:
Where where one would say that this is so trivial that we're not going to bother with it.

[00:29:07] Speaker 02:
I mean, the board does have a merit dismissal procedure, Your Honor.

[00:29:11] Speaker 02:
I would think this is a more straightforward done for a labor practice.

[00:29:13] Speaker 02:
But I think the flip side of that is that the remedy here for the employer is also comparatively mild.

[00:29:19] Speaker 02:
It's just a notice posting, telling employees that it won't create an unlawful impression of surveillance.

[00:29:24] Speaker 03:
It won't create impressions anymore.

[00:29:27] Speaker 02:
Well, it is specifically- That's what the order says.

[00:29:30] Speaker 02:
Yes, specifically that it will not violate federal law by crilling unlawful impression of surveillance.

[00:29:38] Speaker 03:
misremembered it.

[00:29:41] Speaker 03:
I think it says, it's decent as this from creating the impression that it's engaging in surveillance.

[00:29:52] Speaker 02:
Well, that's the board's order.

[00:29:53] Speaker 02:
And then there's a concurrent notice posting.

[00:29:55] Speaker 02:
They'll actually be posted in the facility.

[00:29:57] Speaker 02:
Yes.

[00:29:59] Speaker 02:
So there is.

[00:30:00] Speaker 03:
If you took the cameras out of the cab, then I guess you wouldn't be able to create that impression anymore.

[00:30:07] Speaker 02:
Well, no, you could.

[00:30:08] Speaker 02:
The board's orders is not in any way prohibit the employer from using these cameras as it sees fit.

[00:30:13] Speaker 02:
If the employer were to promulgate a generally applicable rule that it had never done prior to this.

[00:30:19] Speaker 03:
How about a rule that says don't disconnect or turn off the camera?

[00:30:24] Speaker 03:
That's a pretty general rule, isn't it?

[00:30:28] Speaker 02:
certainly your honor but again there's there's two components to this case even if there's a generally applicable rule if we assume that's the case that does not explain why Mr. Barr accessed Mr. Ruiz's camera here he testified that he did not normally access employees cameras and so why was Mr. Ruiz singled out or why would he reasonably believe he was singled out and that's the board's finding here which i would submit is well supported by substantial evidence given the deferential standard of review

[00:30:57] Speaker 02:
And I see that I'm obviously well over my time.

[00:30:59] Speaker 01:
If the court has any questions about the one last question, has this election been held yet?

[00:31:04] Speaker 02:
Well, there was an election in the in the time frame of certain produce one.

[00:31:09] Speaker 02:
There has not been a well, there has not been a subsequent petition, but I would note that the organizing campaign is active contrary to employers claims.

[00:31:21] Speaker 02:
And if there's no questions about Mr Ponce's for labor practice, thank you.

[00:31:26] Speaker 02:
Thank you.

[00:31:30] Speaker 01:
I should take two minutes.

[00:31:34] Speaker 05:
Thank you, Your Honor.

[00:31:35] Speaker 05:
I'll be very brief.

[00:31:36] Speaker 05:
I just wanted to address what the Council for the Board spoke of in his argument.

[00:31:43] Speaker 05:
The testimony of Mr. Barr is all post hoc.

[00:31:47] Speaker 05:
The standard is, what is the impression that the employee has, a reasonable employee at the time?

[00:31:53] Speaker 05:
And the only evidence in the record is the text message that was sent.

[00:31:58] Speaker 05:
And so what the board should have looked at is, does that, in light of the prior dismissed unfair labor practice charge over the installation of these cameras, and in light of Mr. Ruiz's acknowledgement at Joint Appendix, I think 456, where he said, yes, I read and understood the driver's manual,

[00:32:17] Speaker 05:
does that text create in a reasonable employee the impression of surveillance when they know all these things and we simply contend that it cannot in these circumstances.

[00:32:29] Speaker 05:
And we ask that the petition be granted and the cross petition be denied.

[00:32:33] Speaker 01:
Thank you.

[00:32:34] Speaker 05:
Thank you.