[00:00:00] Speaker 04:
Case number 22-1264 Ed Al.

[00:00:02] Speaker 04:
Esselt Protective Services Inc.

[00:00:05] Speaker 04:
petitioner versus National Labor Relations Board.

[00:00:08] Speaker 04:
Ms.

[00:00:09] Speaker 04:
Mastroni for the petitioner, Mr. Jost for the respondent.

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

[00:00:15] Speaker 01:
Ms.

[00:00:15] Speaker 01:
Mastroni, whenever you're ready, please proceed.

[00:00:19] Speaker 04:
All right, thank you, Ms.

[00:00:21] Speaker 04:
Droney from Littler Mendelson on behalf of Excel.

[00:00:26] Speaker 04:
So as you know, I'm not going to rehash the briefs and decisions, but this case really hinges on the termination of a former employee of Excel, Mr. Mark Salopek.

[00:00:40] Speaker 04:
And he was a security guard for Excel for several years at a naval base in the state of Washington.

[00:00:49] Speaker 04:
He was terminated based on some events that occurred surrounding his communications with the Navy, reporting what he believed were alleged safety concerns.

[00:01:06] Speaker 04:
And so I think the first thing to address is whether this court can consider some of the arguments that we raised in our brief.

[00:01:15] Speaker 04:
I know that opposing counsel has argued that these are not properly before the court because they were not explicitly raised.

[00:01:23] Speaker 04:
in our exceptions.

[00:01:24] Speaker 04:
And these two arguments have to do with whether Mr. Salopek's communications were protected under the act.

[00:01:33] Speaker 04:
And if so, whether they lost the protection of the act based on his failure to disclose an ongoing labor dispute.

[00:01:42] Speaker 04:
And we argue that these issues are properly before this court for a few reasons.

[00:01:48] Speaker 04:
One, we did raise

[00:01:51] Speaker 04:
an issue with respect to whether Mr. Salopak's communications were protected under the act in our exceptions.

[00:01:59] Speaker 04:
And these are- Where is that?

[00:02:04] Speaker 02:
In our exceptions?

[00:02:07] Speaker 02:
Where, precisely in your exceptions?

[00:02:09] Speaker 04:
Sure, I'll give you the page number.

[00:02:23] Speaker 04:
So page 40, I'm sorry, page 43 of our exceptions is where we start our argument about how Mr. Salopak's actions lost the production of the Act.

[00:02:46] Speaker 04:
So while we did not explicitly, I'm sorry.

[00:02:51] Speaker 02:
I don't know that this part of the exceptions goes specifically to that point, though.

[00:02:57] Speaker 04:
Right.

[00:02:58] Speaker 04:
I don't disagree with you there.

[00:03:00] Speaker 04:
We did not specifically address the two issues that we are advancing here.

[00:03:04] Speaker 04:
Our claim is that they are an extension of the argument that we did raise in our exceptions related to whether... How does what you said put the general counsel on notice that these are the claims that you're making?

[00:03:20] Speaker 04:
So, I mean, we weren't specific about it.

[00:03:23] Speaker 04:
I'm not, I'm not pretending that we were, but I think the, the, the idea is that they are an extension of what we argued and these issues were discussed.

[00:03:35] Speaker 03:
Is the test that it's just an extension.

[00:03:37] Speaker 03:
Is that sufficient or doesn't it have to put them on notice that this is what you're arguing and you're conceding that it doesn't correct.

[00:03:44] Speaker 04:
No, I'm conceding that we didn't specifically address these issues that were raised by the dissent and discussed at length by both the dissent and the majority.

[00:03:53] Speaker 04:
So in that respect, the general counsel was on notice when we discussed these issues in our appeal.

[00:04:02] Speaker 03:
The United Food case precludes us from relying on just what the dissent said.

[00:04:09] Speaker 03:
I'm sorry.

[00:04:11] Speaker 03:
So the fact that

[00:04:13] Speaker 03:
a dissenting board member raise these issues is not sufficient under our United Food precedent.

[00:04:18] Speaker 03:
And so I think that you need to argue that you did raise this and all you're relying on are some general statements that it appears that you're conceding didn't put the general counsel on notice of these specific issues.

[00:04:33] Speaker 04:
I think reading.

[00:04:35] Speaker 04:
Our brief and our exceptions rather is clear that we did not specifically argue the two issues that the dissent discussed and that we have argued in our brief before this court.

[00:04:50] Speaker 02:
Let me ask you about a different question.

[00:04:54] Speaker 02:
Is Excel arguing, did Excel argue before the board that Salopek was so disloyal that his actions came outside of protected activity?

[00:05:07] Speaker 02:
Is that what Excel is arguing in its brief before the board and in its exceptions?

[00:05:15] Speaker 04:
We had argued that his comments were either felt in one of those categories, sufficiently disloyal, maliciously untrue, or just said and done recklessly.

[00:05:32] Speaker 04:
So our argument there was that his communications lost the protection of the act because of those reasons.

[00:05:39] Speaker 04:
So because what he advanced in speaking with the needy personnel was simply not true.

[00:05:46] Speaker 04:
And even if he didn't know for sure that they weren't true, which we dispute, but at least his comments were said recklessly with regard to the truth of what he was saying.

[00:06:02] Speaker 02:
So that was just and disloyally.

[00:06:04] Speaker 02:
Do you do you think that disloyalty is a separate cause for termination?

[00:06:10] Speaker 04:
Is that what we argue?

[00:06:15] Speaker 02:
Well, I'm wondering if that's what you've argued, if that's what you think is the standard.

[00:06:22] Speaker 04:
No, I don't think we were arguing that disloyalty was a separate cause for his termination.

[00:06:29] Speaker 04:
But under the law, if his communications were so disloyal or maliciously untrue or reckless, then they could lose the protection of the act.

[00:06:38] Speaker 02:
And that's what disloyalty would be a separate grounds to it being maliciously untrue.

[00:06:45] Speaker 02:
to lose the protection.

[00:06:47] Speaker 04:
Yes, I would agree with you there.

[00:06:49] Speaker 04:
Yes.

[00:06:49] Speaker 04:
So it could be one of those three, right?

[00:06:51] Speaker 04:
Reckless, maliciously untrue, or so disloyal to lose the protection.

[00:06:59] Speaker 04:
And so his comments that the company had forged documents and was dishonest with the Navy, et cetera, were comments that could be construed as disloyal in addition to being maliciously untrue and or reckless.

[00:07:19] Speaker 03:
So you've forfeited the disloyalty argument, but you did preserve the maliciously untrue argument, correct?

[00:07:29] Speaker 04:
Um, no, I don't think we forfeited the disloyalty in terms of losing the protection of the act.

[00:07:35] Speaker 04:
I don't think we forfeited that argument.

[00:07:38] Speaker 04:
I think that's that goes along with argument that his communications were at least one of those fell into one of those categories, right?

[00:07:47] Speaker 04:
Either sufficiently disloyal, maliciously untrue and or reckless.

[00:07:54] Speaker 03:
I'm sorry, did you make a specific argument about sufficiently disloyal?

[00:07:58] Speaker 03:
I thought your arguments relied on maliciously untrue.

[00:08:02] Speaker 04:
Yeah, I think that was our focus that they were, well, we said we discussed them both being reckless and maliciously untrue in our exceptions.

[00:08:15] Speaker 03:
Right, but you didn't specifically talk about sufficiently disloyal.

[00:08:23] Speaker ?:
OK.

[00:08:23] Speaker 04:
I think they all fell within that category.

[00:08:27] Speaker 04:
So whether they were on the border of maliciously untrue, disloyal.

[00:08:38] Speaker 03:
At any rate, I think- I'm just asking about what you argued.

[00:08:40] Speaker 03:
I don't think you made a specific argument about disloyalty.

[00:08:44] Speaker 03:
You were arguing about maliciously untrue, is my recollection of it.

[00:08:47] Speaker 04:
We focused on maliciously untrue and reckless as well.

[00:08:53] Speaker 03:
And it seems to me that much of what was at issue was not, in fact, untrue.

[00:08:59] Speaker 03:
Didn't Captain Terry concede that there was a lot of activity that was not authorized under Navy regulations, such as firearms, tests in unapproved places, using equipment that was not provided by the Navy, et cetera?

[00:09:15] Speaker 03:
What exactly are you saying was untrue?

[00:09:18] Speaker 04:
The majority of his allegations about guards having qualified improperly were found to be untrue.

[00:09:26] Speaker 04:
I believe there were two allegations that he made that were substantiated.

[00:09:30] Speaker 04:
The rest, Mr. Rake found to be unsubstantiated based on his investigation, including review of documents and interview of numerous other security guards.

[00:09:41] Speaker 03:
But we don't rely on what Mr. Rake found.

[00:09:43] Speaker 03:
He was found to be biased.

[00:09:44] Speaker 03:
We should rely on what the board found.

[00:09:50] Speaker 04:
I think we have to rely on the evidence in the record and the evidence in the record speaks for itself.

[00:09:56] Speaker 04:
And the fact that the, the ALJ found that he, that Mr. Rake was biased, it was simply a determination he made that didn't necessarily comport with the evidence in the record.

[00:10:09] Speaker 04:
In fact, we don't think there was any evidence in the record that Mr. Rake was biased.

[00:10:14] Speaker 03:
What about the statements that he made about Mr. Salopek?

[00:10:19] Speaker 04:
I think that was his determination made based on his discussions with Mr sell pack as part of his investigation.

[00:10:26] Speaker 03:
So, I'm sorry, are you are you arguing that the LJ.

[00:10:32] Speaker 03:
Was clearly erroneous or that his finding was not supported by the evidence when he found that Mr was.

[00:10:39] Speaker 04:
Yes, I think the evidence in the record did not support that Mr. Raik was biased against or held animus against Mr. Salopak based on the communications that he made.

[00:11:09] Speaker 01:
Okay, thank you.

[00:11:10] Speaker 01:
You're a little over, but we'll give you some remote.

[00:11:13] Speaker 04:
Thank you.

[00:11:16] Speaker 00:
Mr. Just.

[00:11:18] Speaker 00:
Good morning, your honor.

[00:11:19] Speaker 00:
May it please the court.

[00:11:21] Speaker 00:
My name is Micah just for the labor board.

[00:11:24] Speaker 00:
I'll begin by briefly addressing the 10 E issues that were just discussed.

[00:11:28] Speaker 00:
With regard to the requirement of specificity in raising these issues, the Nova case, which the employer cites in its reply brief at page four, acknowledges that the employer does have to put the board on notice of the, quote, specific grounds for its objections.

[00:11:44] Speaker 00:
The employer did not do that here with regard to mutual aid and protection question or the loss of protection with regard to disclosure of a labor dispute, nor did it make any argument as to disloyalty.

[00:11:56] Speaker 00:
When it comes to disloyalty, if you examine their exceptions document, which is at Joint Appendix 122 to 128, you will not find the word disloyalty on those pages anywhere.

[00:12:06] Speaker 00:
There's no reference to it because they focused exclusively on the question of malicious falsity.

[00:12:12] Speaker 00:
Nothing in their brief and support expands on that.

[00:12:15] Speaker 00:
They do reference disloyalty in passing at page 44 of that document in a quote from the Valley Hospital decision, which simply sets forth the overarching standard.

[00:12:24] Speaker 00:
They never actually try to explain why that would both the A.L.J.

[00:12:28] Speaker 02:
and the board discuss the loyalty point, which was raised.

[00:12:34] Speaker 02:
We looked at the brief that was presented before the board, which does mention the disloyalty

[00:12:39] Speaker 02:
point.

[00:12:40] Speaker 02:
And so it seems that they did raise that point before the board.

[00:12:46] Speaker 02:
And then the board does discuss it, makes a specific finding about it, as does the ALJ.

[00:12:52] Speaker 00:
Your Honor, the board addressed it because it was raised in a dissent.

[00:12:56] Speaker 00:
The board explained that it had not been raised by the employer.

[00:12:59] Speaker 00:
And there is simply nothing.

[00:13:00] Speaker 00:
Again, the exceptions document is where the employer has to begin to put the board on notice.

[00:13:04] Speaker 00:
It can expand on arguments that it's properly raised there in its brief in support under this court's law.

[00:13:10] Speaker 02:
I understand that as to some of the actions, some of the arguments.

[00:13:14] Speaker 02:
But what about the disloyalty point?

[00:13:17] Speaker 02:
That the disloyalty here took this outside the protections of the act.

[00:13:21] Speaker 00:
So disloyalty is a separate inquiry.

[00:13:25] Speaker 00:
The court's cases in Endicott and Hormel turn on disloyalty.

[00:13:29] Speaker 00:
They have nothing to do with malicious falsity.

[00:13:31] Speaker 00:
Similarly, Jefferson Standard doesn't touch on malicious falsity.

[00:13:33] Speaker 00:
It focuses on disloyalty.

[00:13:35] Speaker 00:
It is a separate issue.

[00:13:36] Speaker 00:
And the employer had to do more than reference the word disloyalty once in the middle of its brief inciting a case from the board.

[00:13:44] Speaker 00:
It never addressed disloyalty.

[00:13:46] Speaker 00:
in terms of any of the board's cases or this court's cases.

[00:13:49] Speaker 00:
And in that context, the 10 year decisions that we cite explain why the board was not on notice there.

[00:13:55] Speaker 00:
It's not enough.

[00:13:57] Speaker 02:
Do you think it was not urged before the board and forfeited before this court or just simply not urged before the board?

[00:14:06] Speaker 00:
Well, it's both, Your Honor, but as far as the first question, it's jurisdictional.

[00:14:09] Speaker 00:
And so if it wasn't urged before the board, nothing they could say before this court could resurrect the issue.

[00:14:15] Speaker 00:
Right.

[00:14:15] Speaker 00:
And when you look at cases like the spectrum health decision from this court and Parsippany Hotel, which are both cited in our brief, this court has recognized that a broad objection, for example, to the remedy in its entirety,

[00:14:28] Speaker 00:
does not preserve a sort of subset of argument.

[00:14:31] Speaker 00:
And for Tiffany Hotel, a vague reference to the ALJ not being allowed to amend a complaint does not preserve a subpart of that argument based on statute of limitations, for example.

[00:14:42] Speaker 00:
So that's what we have here.

[00:14:43] Speaker 00:
At best, they made a reference to the overarching standard, but they never articulated an argument as to disloyalty.

[00:14:49] Speaker 00:
And in any event, the board addressed the issue because it was raised in the dissent.

[00:14:53] Speaker 00:
And as in DirecTV, the board made findings which are supported by substantial evidence that nothing here was flagrantly disloyal or wholly incommensurate with any grievances the employees could have.

[00:15:05] Speaker 00:
In fact, this case is essentially on all fours with DirecTV.

[00:15:07] Speaker 00:
The employees went to their employer first,

[00:15:10] Speaker 00:
They tried to resolve the issue in that way.

[00:15:12] Speaker 00:
Initially, they went to multiple people within their chain of command.

[00:15:15] Speaker 00:
And after that, they went to the next entity that they believed could help them.

[00:15:22] Speaker 00:
In doing so, they focused on issues relating to their working conditions.

[00:15:25] Speaker 00:
There's no evidence of critical timing or any sort of unusual damage the employer could have faced.

[00:15:31] Speaker 00:
And there is no evidence that they had any intent to harm the employer unnecessarily.

[00:15:35] Speaker 00:
In that regard, I would emphasize Joint Appendix 111 to 112, where the ALJ found essentially as a matter of credibility that these employees were genuinely motivated by their safety concerns.

[00:15:48] Speaker 00:
There is ample evidence in the record to support that.

[00:15:51] Speaker 00:
In particular, at Joint Appendix 420, 462, 463, the employees testify in an incredible way about the genuine concerns they felt for their own safety, both based on the risk of ricochets and other injuries that they might suffer at an unauthorized shooting location, and also their concern that having employees lacked sufficient qualification could put them in danger in the event of a critical incident.

[00:16:20] Speaker 00:
With regard to the question of whether this court can rely on Rake's findings, of course it cannot.

[00:16:25] Speaker 00:
What it has to defer to is the findings of the administrative law judge that the board adopted.

[00:16:30] Speaker 00:
And here the board did find that Rake essentially conducted his investigation.

[00:16:37] Speaker 00:
based on his animus toward these employees going over his head and putting him in a bad position where the employer's own witnesses acknowledged that the employees had been shooting at unqualified locations for their qualifications and that Rake was on notice and was fully aware of those behaviors.

[00:16:55] Speaker 00:
So in the end, only two issues are properly before the court here, only two board findings.

[00:16:59] Speaker 00:
And those are the finding that Mark Salopek's complaints were not maliciously false and the finding that the employer was motivated by those complaints to discharge him.

[00:17:10] Speaker 00:
On both of those points, the employer's own statements in its briefs and from its witnesses are fatal to its challenges.

[00:17:17] Speaker 00:
On the first point, there can be no malicious falsity because Excel admitted that the complaints were true.

[00:17:23] Speaker 00:
First, we have operations manager Terry testifying that Excel held those qualification shoots at other locations.

[00:17:29] Speaker 00:
Second, he confirmed that there is a document on which Excel misrepresented where that took place.

[00:17:35] Speaker 00:
That's a Joint Appendix 261, and his admissions are at 610 and 612.

[00:17:41] Speaker 00:
And Excel admitted that as well in its brief in support before the board, which is at page 45 of that document.

[00:17:47] Speaker 00:
Third, we have Pallas's admissions that he altered targets.

[00:17:50] Speaker 00:
And finally, we have Excel admitting in its opening brief that Officer Kohler received weapons she had not qualified for after she attended a gravel pit shoot.

[00:18:00] Speaker 00:
she explains in her statement at Twin Pendix 244 that that did take place at a gravel pit.

[00:18:07] Speaker 01:
What do we do if we conclude that many of the allegations were true, but maybe some were false?

[00:18:17] Speaker 01:
Do we then go on and assess, look at the false ones and assess maliciousness?

[00:18:24] Speaker 01:
If there are any... Or is that just a gestalt kind of

[00:18:29] Speaker 01:
you know, overall, there's a lot of truth in everything the employee was saying.

[00:18:35] Speaker 00:
Your honor, I think when the court looks at its decision in DirecTV, the focus there was on essentially whether the core allegations, whether the essential substance of the complaints were true.

[00:18:47] Speaker 00:
And in that case, the court looked at the complaints overall, looked at the issues that the employees had raised, and it was clear that they had an essential truth to them.

[00:18:57] Speaker 00:
I think the same is true for the Encore decision.

[00:18:59] Speaker 00:
The court looked at the statements that the employee raised with regard to meter bases catching fire and said, these were perhaps not phrased as clearly as they could have been, but they are in their essence true.

[00:19:11] Speaker 00:
That is certainly the case here.

[00:19:12] Speaker 00:
The employer hasn't shown that anything was false.

[00:19:15] Speaker 00:
There may be a date that was ultimately corrected after being initially incorrect, but that sort of error just can't possibly qualify for malicious falsity.

[00:19:23] Speaker 00:
Even if they had established falsity as to any particular point,

[00:19:28] Speaker 00:
then the next inquiry would be whether it was knowingly false or whether Salopek was reckless as to the truth or falsity.

[00:19:36] Speaker 00:
And there, the ALJ looked at the credible testimony of these employees, explaining how they reached these complaints, how they talked amongst themselves, how they checked each other's work, how they relied on each other's statements, and found that they were acting in good faith to raise what they believed to be true complaints.

[00:19:53] Speaker 00:
employer again as to its ultimate unlawful motivation.

[00:19:56] Speaker 00:
It conceded in its briefs and in its own documentation and in the statements of its witnesses that it was motivated by this activity.

[00:20:06] Speaker 00:
And I haven't heard any any counter argument on that note today.

[00:20:09] Speaker 00:
As many of the cases we cite explain, the DHSC case, Dardsmark, and even the Aroostook case that the employer brings up, those are decisions from this court recognizing that an employer cannot use an employee's decision to go outside the chain of command in order to punish them for their protected activity.

[00:20:29] Speaker 00:
So in view of the board's well supported, substantial, excuse me, well supported findings and substantial evidence that we've discussed, we ask for enforcement of the board's order in full, if there are any further questions.

[00:20:42] Speaker 01:
Thank you, Mr. Joseph.

[00:20:44] Speaker 00:
Thank you.

[00:20:48] Speaker 01:
Ms.

[00:20:49] Speaker 01:
Mastrone, rebuttal.

[00:20:52] Speaker 04:
Yes, I think just briefly, just with respect to the notion that the majority of Mr. Salopek's allegations were true, I just think that's not accurate.

[00:21:03] Speaker 04:
And I think the record shows that we addressed this at length in our exceptions, starting on page 44.

[00:21:12] Speaker 01:
What's your best illustration of a statement that was obviously materially false?

[00:21:20] Speaker 04:
Um, well, I think that just one of his biggest claims was that, um, Excel allowed officers to qualify at gravel pit ranges on several occasions.

[00:21:29] Speaker 04:
Um, that was really the whole crux of his, um, his complaint here that they were letting these officers qualify, um, at gravel pit ranges.

[00:21:38] Speaker 04:
And this was, you know, um, not, not in line with what the Navy would have permitted.

[00:21:43] Speaker 04:
And that simply didn't bear out.

[00:21:46] Speaker 03:
I'm sorry.

[00:21:46] Speaker 03:
Didn't Captain Terry testify that that did in fact happen?

[00:21:50] Speaker 04:
Not that employees were able to qualify there.

[00:21:54] Speaker 04:
And in fact, they had one, only one instance of this occurring.

[00:21:58] Speaker 04:
There was one document to support this.

[00:22:00] Speaker 04:
And so when Mr. Salopek made this allegation, he was aware of only one specific instance where this did occur.

[00:22:09] Speaker 03:
So why doesn't that one instance support the finding?

[00:22:14] Speaker 04:
It doesn't support the, I'm not sure what you mean, the finding.

[00:22:18] Speaker 04:
I don't think it supports his allegation.

[00:22:20] Speaker 04:
I'm sorry.

[00:22:24] Speaker 03:
I guess we're reviewing whether substantial evidence supported the board's decision.

[00:22:29] Speaker 03:
And it rejected the argument that there were, I guess, maliciously false statements.

[00:22:36] Speaker 03:
And when Judge Katz has asked you what is your best evidence of a maliciously false statement, you refer to gravel pit qualification tests.

[00:22:47] Speaker 03:
But there's evidence in the record that Captain Terry, who works for your client, acknowledged that there were gravel pit qualification tests.

[00:22:55] Speaker 03:
And you just conceded that there's a document to support that there were gravel pit qualification tests.

[00:23:00] Speaker 03:
So why is that enough to sustain the finding?

[00:23:06] Speaker 04:
Well, first of all, that's only one instance of his allegations that did not turn out to be true because he said this happened on several occasions.

[00:23:14] Speaker 04:
And there's one document showing that it occurred once.

[00:23:17] Speaker 04:
But there are also numerous others.

[00:23:20] Speaker 03:
I'm sorry.

[00:23:21] Speaker 03:
There was evidence of other ones.

[00:23:22] Speaker 03:
There's one document about one incident, but there was testimony that it happens on more than one occasion.

[00:23:30] Speaker 04:
I don't believe that Mr. Terry was saying that the guards were allowed to qualify at the gravel pit ranges.

[00:23:50] Speaker 01:
We'll check that.

[00:23:52] Speaker 01:
My recollection is the same as Judge Pan's, which is you have testimony from Terry that's favorable to the board on that point, and you have officers at Kohler, and you have a falsified record, which put those three together.

[00:24:12] Speaker 01:
That seems like substantial evidence.

[00:24:18] Speaker 04:
Yeah, I mean, again, we went through at length the numerous allegations that he made that were found to be unsubstantiated through investigation.

[00:24:27] Speaker 04:
So that's our argument is that he was making statements knowing that they were false and or at least with reckless disregard as to whether they were true or false.

[00:24:38] Speaker 04:
And so in that way, we distinguish direct TV because these were not good faith misstatements being by Mr. Salopak.

[00:24:46] Speaker 04:
He was

[00:24:47] Speaker 04:
aware that he was making false claims and or at least he was making these claims with reckless disregard as to whether they were true or false.

[00:24:57] Speaker 01:
Okay, I think we understand your position.

[00:25:00] Speaker 01:
Thank you very much.

[00:25:02] Speaker 01:
The case is submitted.