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Case number 23-1237 et al.

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Ikemen Capital Partners LLC petitioner versus National Labor Relations Board.

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Mr. Pikus for the petitioner, Mr. Odesky for the respondent.

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Is it Pikus?

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Did I say that right?

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Is it Pikus or Pikus?

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It's Pikus, Your Honor.

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Pikus, sorry.

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Good morning.

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Lawrence Bicus with Wiggin and Dana for the petitioner Acumen Capital Partners.

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May it please the court?

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This appeal obviously arises out of decision of the National Labor Relations Board, which in large part adopted a decision of an administrative law judge finding a violation of sections 81 and 83 of the Act, the National Labor Relations Act, in connection with Acumen's termination of the employment of Gregory Zapata.

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Our appeals premised on the board's decision being essentially predicated on a faulty foundation, a foundation that's really built on nothing more than speculation.

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So the framework for the analysis, of course, is the right line test, which has three elements, only two of which are pertinent here, that the employer knew about the individual employee's protected activity under the National Labor Relations Act.

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And that that protected activity was a motivating factor in the employer's decision to take adverse action.

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And the board, the general counsel did not meet her burden of proof as to either issue.

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The knowledge question, of course the pertinent knowledge being the knowledge of the decision maker in this case, that's Mr. Rosenbloom.

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The board focused extensively on the knowledge of a non-decision maker, Mr. Coppola, without introducing any evidence whatsoever to indicate that Mr. Rosenbloom

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was aware of whatever protected activity Mr. Zapata engaged in.

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We have numerous cases that say the knowledge of a supervisor is imputed to the employer in L and LB cases.

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Well, that's basically a legal fiction to establish knowledge, but ultimately there has to be.

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Well, ultimately there has to be.

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Is Mr. Coppola an agent?

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I'm sorry?

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Is Mr. Coppola an agent?

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The board found that he was an agent.

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An agent and a supervisor, and his knowledge is imputed to the employer.

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And the employer is one that fired Mr. Zapata.

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I don't understand how you can say the knowledge element wasn't met.

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Ultimately, perhaps this is better analyzed under the anti-enemies aspect of the test.

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You talked about the first one.

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That's what I'm talking about.

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Right.

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Do you disagree?

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Am I wrong about that?

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I thought we had a lot of precedent that said knowledge of a supervisor was sufficient.

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Well, I mean, there's case law speaks to the fact that ultimately the decision maker has to have some knowledge.

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And just because a low level supervisor like Mr. Coppola had some discussions or a discussion with Mr. Zapata about the union's organizing activity, he asked him whether he was the one who brought the petition to the building.

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And Mr. Zapata said no.

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You have a case where a supervisor had knowledge.

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I think you don't dispute that Mr. Coppola had knowledge of the union activity, right?

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Yeah, actually.

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Yeah, the union was trying to, originally, initially, they were trying to encourage him to vote for the union, so he was aware of the activity.

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No question there.

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Do you have a case where

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Because this would help me understand, because maybe I'm misunderstanding our precedent.

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And that is, do you have a case where you said, that's fine, but we don't impute the knowledge of a supervisor to the employer?

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Great.

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I thought you were saying that we had to have cases say we have to have something more on the actual decision maker for knowledge.

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Right.

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So we cited the Flagstaff Medical Center versus NLRB case from this court in 2013, which was also dealing with the issue of imputed knowledge by a supervisor.

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And the court says is if the general counsel relies on circumstantial evidence and legal fictions about constructive knowledge, it does so to carry its burden.

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of showing the decision-maker knew about the employee's union activity.

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Permitting circumstantial evidence and legal fictions to trump direct proof to the contrary is absurd, is what the court said.

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They had direct proof to the contrary.

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You had direct proof to the contrary that he didn't know?

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Well, first of all, you had Mr. Rosenblum's testimony, which was on.

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I'm sorry?

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That was discredited.

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You haven't challenged that credibility determination.

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So what direct proof do you have to the contrary?

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I don't think his testimony that he was generally unaware of Mr. Zapata's involvement in the organizing campaign was discredited.

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There were certain aspects of Mr. Rosenblum's testimony that was discredited.

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The role in the organizing campaign is not the same thing as saying he did not reasonably suspect that Mr. Zapata was supporting the union, interested in having a union.

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All the board pointed to in that regard, Your Honor, is the conversations that Mr. Capola had with Mr. Zapata, where Mr. Zapata denied being involved in initiating the petition.

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What happened from there was that the ALJ manufactured a conversation by saying that Mr. Rosenblum denied ever talking to Mr. Capola about union activity.

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The only discussion they ever had was,

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petition came to Mr. Coppola for some reason.

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He gave it to Mr. Rosenblum.

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That was the last they ever discussed the union petition, according to the testimony of both of them.

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So they both denied having any conversation about Mr. Zapata.

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And the ALJ went and said, well, I don't believe you.

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And therefore, they did have a conversation, basically manufacturing a conversation that there's no testimony or evidence existed.

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But just so we're clear, Rosenblum

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knew that there was union activity.

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It's not like Rosenblum didn't know that there was union activity.

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That's correct, Your Honor, because there was a petition filed in early February of 2022.

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And the petition could have been filed by how many people?

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At that point in time, I believe it could have been filed by anyone of four, if you include Mr. Coppola, who initially was seen at least by the union as part of the bargaining union.

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And at the time that Mr. Zapata was fired, how many of those four people were still with Acumen?

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At that point, I believe there were three.

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One left at the end of January.

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Mr. Coppola was still there.

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And then I believe it was Mr. Garcia ended up leaving, I think it was in mid-March.

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So there were three that were still there at that point in time.

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Shortly before the petition, Mr. Zapata had been in Mr. Rosenblum's office expressing labor grievances to him.

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And the ALJ and board relied on that as well, that when you have someone in your office just a couple of weeks before complaining about working conditions, and then, and it's this tiny little group as Judge Wilkins points out,

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weeks later, a petition appears.

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Well, it's interesting on the timing, because if you look at Mr Zapata's testimony... The question is whether the board or ALJ can rely on that.

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I'm sorry?

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The question is whether the board or ALJ... You said they just made stuff up.

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There was other stuff in the record to point to.

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Right.

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I'm not saying they made everything up.

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I'm just saying that that conversation was manufactured.

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But you alluded to the timing.

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When Mr. Zapata was asked on direct examination about that conversation, which was initiated when he saw an Indeed ad for basically what he thought was his position at a much higher rate of pay.

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And he met with Mr. Rosenblum about it.

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He was asked when that took place.

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And his answer was mid-March, which was after his termination.

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And the counsel for the general counsel

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funneled him into, well, you were already gone by then.

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He said, oh, well, late January.

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So the timing of it is a little bit uncertain.

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Are you disputing a fact finding now?

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I'm sorry?

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Are you disputing a fact finding by the board now?

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Well, I don't believe the ALJ made any finding as to exactly when that conversation took place.

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I think he said late January, sort of two weeks before the petition.

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That's when he ultimately said it was.

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But if you look at that conversation, he talked about the Indeed ad.

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And then Mr. Rosenblum asked him a few questions about how he enjoyed his job.

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And then he talked about how with other employees, he thought there was a high turnover.

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We're not making the fact determinations.

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I understand.

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We're not deciding what inferences to make from them.

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I've described to you what the ALJ and board did.

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And we know that Mr. Rosenblum was aware of agency, excuse me, labor activity, union activity, that there was a petition.

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just statistically, it's kind of more likely to be, it's going to be one of them, not a supervisor.

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And so, because the supervisor's been around, hasn't done anything like this.

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So there's Mr. Zapata.

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There's only other full-time one at that point?

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Well, at that point, it was a full-time, a part-time after

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He was the only other full-time one.

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He's the only full-time there, and he'd just been in his office expressing grievances on behalf of the engineers.

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Again, we have a very deferential standard.

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I understand if the ALJ board had gone the other way, that would be perfectly reasonable too, but that's not the issue before us.

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Right.

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I can use the term grievances, though.

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He was answering some questions for Mr. Rosenblum.

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His testimony was,

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after they got past the advertisement for the position was that he told Mr. Rosenblum that he felt that it was high turnover because of the benefits that were being offered.

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You know why everyone's leaving, those are your benefits and stuff, yet you're not going to pay.

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Yeah, he was talking about all the people, you know, not himself.

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Definitely not about himself, he was just there for pay raise.

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He wasn't supposed to get paid this much.

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You want to turn to the animus issue?

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Sure.

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And the evidence of animus, the primary bit of evidence that was cited as displaying animus is the conversation from almost a year earlier during Mr. Coppola's job interview when

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Mr. Coppola, who was a lifetime or longtime union member, had always been a union member, asked Mr. Rosenblum about whether there was a union at the building.

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And Mr. Rosenblum said, this is a non-union building.

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Apparently, Mr. Coppola interpreted that to mean that he was not permitted or Mr. Rosenblum didn't want him to bring the union in.

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And that's how he ostensibly communicated that conversation to Mr. Zapata.

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What Mr. Rosenblum said is clearly an HC-protected communication.

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He's simply stating that,

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At most, he's saying that we do not want a union in our building.

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That is exactly what HC is designed to protect.

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And keep in mind who he's saying it to.

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He's saying it to someone who, as the board has determined, the board advocated was and successfully advocated was a supervisor under the Act, meaning that Mr. Rosenblum and Ackerman had the right to demand complete loyalty from Mr. Coppola.

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And tell him, if that was the message, do not bring a union in here and do not help employees unionize.

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That is perfectly lawful.

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Well, he didn't even say that.

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He said much less than that.

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I'm sorry.

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He didn't go that far.

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Exactly.

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It was even less than that.

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And there's no element of coercion to that communication.

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That's the kind of communication that happens every day in a workplace where there's union activity among management and their supervisory personnel.

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I think that's kind of the key argument that they advance, which really is foreclosed by Section 8C.

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The rest of it is largely just the ALJ saying, I don't like the way this played out.

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you know, the arguments about the vaccine mandate.

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I mean, Mr. Rosenblum testified that what changed was when the city fired over 1,000 people for not being vaccinated.

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Well, the general counsel says, well, they had put people on leave before that.

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There's no evidence Mr. Rosenblum knew about that.

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He certainly knew about the firings and acted based on that.

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You know, otherwise- You have this odd circumstance that it's pretty clear they weren't strictly enforcing this mandate until that time.

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And then pause Mr. Zapata in his office and Mr. Zapata says, look, I'm going to get it tomorrow.

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And having waited weeks and weeks and weeks and weeks.

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And the guy's going to have the vaccine and all I need is one vaccine to comply.

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And he's going to have it within literally hours.

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I don't care.

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All of a sudden, I don't care.

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First of all, the only thing doesn't that allow for an inference that that he wasn't really enforcing the vaccine mandate.

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He was looking for an excuse.

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I don't believe so.

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First of all, your honor, vacuum did everything in accordance with the mandate, except fire people.

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Right.

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And they were only at that point, Zapata was the only one to fire people.

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Well, they moved to remove them from the facility for and Mr. Zapatis.

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Very different thing.

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Well, with someone who has no PTO left and is an on-site job, there's not really too many options.

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But I suppose they could have furloughed him.

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That's the one thing they could have done.

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They could have furloughed him for half a day until he got a shot.

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Right.

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But at that point... He's not going to wait all this time.

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He says, I didn't know you were enforcing this.

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I've got it tomorrow.

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What reasonable employer who's not looking to

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punishes and we're looking wouldn't just wait for him to get the shot or when he gets this I say all right, come back to work tomorrow.

[00:13:37] Speaker 03:
Well, a couple of things right.

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Mr. Rose was sent to an email, asked him to come to his office with his vaccine card or an application for an exemption.

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Mr. Spada came with neither.

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At that point, Mr. Rosenblum wasn't interested in the appointment because it had been several weeks.

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So keep in mind,

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When Zapata said that he was going to get the vaccine the next day, Mr. Rosenblum said, we'll reassess the situation after that.

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So what evidence is there in the record that Mr. Rosenblum or Mr. Coppola told him several weeks earlier?

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He said it's been several weeks.

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He had to get that vaccine.

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within a week or two or three?

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The posting said it.

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The December 27th posting.

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But they weren't enforcing that.

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There's evidence that it's not rebutted by Mr. Rosenblum, that Mr. Zappala was saying it's not being enforced yet, that lots of employees didn't.

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That same day, did he fire everybody who didn't have a vaccine or just Mr. Zapata?

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Yes, because Mr. Zapata was the only one.

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In the whole place?

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There were only about 17 employees.

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and everybody else had their vaccine or one employee had left, although I think he got vaccinated before that.

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Where does it say every employee had?

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There was a record that was being maintained by Acumen of folks who provided their proof of vaccination.

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It's in the record.

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Zapata, at that point, was the only one who had not been vaccinated.

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So also in terms of, well, why not just wait a day?

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I think the circus case speaks to that same exact issue where the gentleman

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had not taken a mandatory medical exam and he insisted he had an appointment who was going to get it the next day or thereafter.

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And this court said, well, agreeing to

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to overcome the reason that you're being fired doesn't mean that the employer didn't hold a good faith belief that your termination was appropriate at that particular time.

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This case is really no different than Circus Circus in that respect.

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So sure, Mr. Rosenblum could have done something different.

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He could have told him, you're going to leave until you give me proof of vaccination.

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I think he was skeptical at that point as to whether Mr. Zapata intended to get vaccinated, or he could have done what he did.

[00:15:46] Speaker 04:
But wasn't there evidence that Koppel had said he would alert the engineers

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when Rosenberg was enforcing the vaccine policy.

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That was Zapata's testimony, yes.

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That was news to Mr. Rosenblum, according to his testimony.

[00:16:06] Speaker 04:
Did Mr. Capala deny it as well?

[00:16:12] Speaker 03:
I actually don't know the answer to that, Your Honor.

[00:16:15] Speaker 04:
I don't remember anything in record to that effect.

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And of course, the small firm policy that the

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board applied, and all this was taking place right outside Coppola's office, which was in the boiler room.

[00:16:32] Speaker 03:
Well, we're not contesting that Mr. Coppola had some knowledge of the union activity that was going on.

[00:16:37] Speaker 04:
No, no, no, no, no.

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That wasn't my question.

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It was evidence that Mr. Coppola had told the engineers that he would let them know when Rosenberg was forcing

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vaccination policy.

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That's correct, there is that.

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And there's no evidence that they were ever told.

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There's no evidence they were ever told beyond what was in the posting, where specifically said that you had to have the first dose by December 27th, 2021.

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But bear in mind, Mr. Coppola is allegedly making those assurances before anybody knows anything about union activity, before there's a petition on file, before the union rep shows up at the facility.

[00:17:22] Speaker 04:
That supports the board's position here.

[00:17:27] Speaker 04:
Well, not so I don't think.

[00:17:28] Speaker 04:
The two were linked, and your argument is they weren't linked.

[00:17:33] Speaker 03:
Well, exactly, because if we're saying that this is- But you can't argue both sides, that's all I'm saying.

[00:17:39] Speaker 04:
You have to choose.

[00:17:41] Speaker 03:
Right.

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I think the point though, the critical point in terms of those supposed assurances, is they were pre-petitioned right there before anyone knows about union activity on site.

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So in order for that to somehow suggest there's an illicit motive here,

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It would have to be almost like they're trying to set Mr. Zapata up.

[00:17:58] Speaker 03:
Set him up for what?

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They didn't know there was any union activity.

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So the assurances really don't tell us anything about Mr. Rosenblum's motive, at least in terms of anti-union animus.

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Nobody knew there was any union on the scene at the time these assurances are being provided.

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Otherwise, it doesn't really play into the analysis.

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The point is, it's essentially a pretext argument.

[00:18:19] Speaker 04:
What about the argument based on the evidence that Rosenberg

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communicated with the engineers through Coppola.

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And this was standard operating procedure.

[00:18:31] Speaker 03:
He did communicate through Coppola in regard to the activities.

[00:18:35] Speaker 04:
Subject to the fact that there was evidence, Coppola didn't advise the engineers that Rosenberg was enforcing the policy.

[00:18:45] Speaker 03:
Right, there was testimony from Mr. Zapata that Mr. Coppola told him that he'd let them know

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when Mr. Rosenblum was going to be enforcing the policy.

[00:18:57] Speaker 03:
But again, those conversations all took place before the petition was filed.

[00:19:01] Speaker 03:
So if he's doing that, either at Mr. Rosenblum's behest or not, to try and set this guy up for a firing, it certainly couldn't be because of union activity, because nobody knew that was going on.

[00:19:14] Speaker 04:
You say nobody knew.

[00:19:15] Speaker 04:
The board applied the small firm analysis here, and you haven't attacked that.

[00:19:23] Speaker 03:
Well, first of all, these conversations took place before the union even showed up at the plant.

[00:19:29] Speaker 03:
So it was before the union organizer came to the boiler room, which I think was late January.

[00:19:34] Speaker 04:
These assurances- I know, but the union issue was on the table from the beginning of Zapata's employment interview.

[00:19:43] Speaker 03:
From a year earlier, there was some discussion with Mr. Capola about the union.

[00:19:47] Speaker 03:
I mean, the small plant doctrine, what the board overlooked there, first of all,

[00:19:51] Speaker 03:
I've not seen a case where the board applied a small plan to establish an individual, a particular individual was engaged in protected activity as opposed to the knowledge that union activity was in the works.

[00:20:04] Speaker 03:
But the elements of it, the only one that's met here is there's a small workforce.

[00:20:08] Speaker 03:
This is a huge building, 575,000 square feet, a full city block.

[00:20:12] Speaker 04:
Everything's going on in the boiler room.

[00:20:15] Speaker 03:
Right.

[00:20:16] Speaker 03:
Well, again, we're not talking about the offices.

[00:20:19] Speaker 03:
Right.

[00:20:19] Speaker 03:
I'm not doubting that we're not we're not arguing that Mr. Polo had some knowledge or the question is whether the decision maker Mr Rosenblum had knowledge.

[00:20:26] Speaker 03:
He's up on the sixth floor nowhere near these guys.

[00:20:29] Speaker 04:
But he relies on Coppola.

[00:20:33] Speaker 04:
The board's case was the board said.

[00:20:36] Speaker 04:
And that's documented in the record, is there?

[00:20:40] Speaker 03:
Right.

[00:20:40] Speaker 03:
And there's, I mean, it is undisputed that Mr. Coppola was not consulted on this discharge decision, which is not involved in the discharge decision.

[00:20:48] Speaker 03:
So at some level to establish anti-union animus, that has to point to Rosenblum because he's the lone decision maker here.

[00:20:55] Speaker 04:
And Mr. Coppola in communicating to Zapata that this was a non-union building.

[00:21:04] Speaker 04:
Would you say that's a protected statement?

[00:21:07] Speaker 04:
But that's all to be ignored?

[00:21:10] Speaker 03:
That's correct, Your Honor.

[00:21:11] Speaker 03:
It is a protected statement.

[00:21:12] Speaker 04:
And when Capola says to Zapata, it's either you or me.

[00:21:22] Speaker 03:
I'm not sure there's any real significance to that, again.

[00:21:24] Speaker 04:
Well, he's saying either you instigated the union activity or I did.

[00:21:30] Speaker 04:
And Zapata says he didn't.

[00:21:33] Speaker 03:
But there's nothing unlawful about making that

[00:21:36] Speaker 03:
Inquiry.

[00:21:37] Speaker 03:
I mean, the board didn't bring an interrogation.

[00:21:39] Speaker 04:
We're talking about animus.

[00:21:43] Speaker 04:
A lot of innocent acts can show complicity.

[00:21:47] Speaker 04:
That's all I'm getting at.

[00:21:50] Speaker 03:
And it's a little difficult.

[00:21:51] Speaker 04:
Consistently said you don't need direct evidence.

[00:21:55] Speaker 03:
It's a little difficult to imagine that a lifetime union member like Mr. Coppola harbored unanimous and then to impute that unanimous to Mr. Rosenblum based on

[00:22:06] Speaker 03:
on what, I guess.

[00:22:07] Speaker 04:
No, no, no, no, no.

[00:22:08] Speaker 04:
You're mixing, and I suppose you're mixing quite consciously.

[00:22:12] Speaker 04:
That's not the position the board took.

[00:22:16] Speaker 03:
Well, the board certainly didn't identify any evidence of animus on Rosenblum's part.

[00:22:22] Speaker 03:
They worked through Coppola to try and establish that animus.

[00:22:28] Speaker 03:
So apart from the timing, which alone doesn't prove an illicit motivation, they looked at

[00:22:36] Speaker 03:
this HC protected statement.

[00:22:40] Speaker 03:
The fact that the city had put people on leave that Rosenblum knew, there's no evidence Rosenblum knew anything about.

[00:22:47] Speaker 03:
And the issue that Judge Miller alluded to in terms of they could have done things differently by putting Mr. Zapata on leave until he actually got his vaccine.

[00:23:00] Speaker 03:
Which is a matter of semantics.

[00:23:02] Speaker 03:
When Mr. Rosenblum told him when he got his vaccine, he would reassess the situation.

[00:23:07] Speaker 03:
And he was in the process of doing that, or at least considering it, and considering additional factors that came into play in light of Mr. Zapata's behavior in his office.

[00:23:15] Speaker 03:
When Mr. Zapata said, I don't want my job back, and that was the last time anybody ever heard of him.

[00:23:20] Speaker 03:
So there's no evidence Mr. Rosenblum didn't follow through on at least considering bringing him back after he received his vaccine in compliance with the

[00:23:29] Speaker 03:
with the mandate, at that point, the board's case crumbles.

[00:23:33] Speaker 03:
There's nothing there to establish anti-union animus infected this particular decision.

[00:23:37] Speaker 04:
I thought there was evidence that afterwards.

[00:23:43] Speaker 04:
I'm sorry?

[00:23:44] Speaker 04:
That after Zapata got the vaccination, Rosenberg refused to take him back.

[00:23:51] Speaker 03:
Well, he didn't refuse.

[00:23:51] Speaker 03:
There were some emails back and forth for about two days.

[00:23:54] Speaker 04:
Well, he didn't refuse.

[00:23:56] Speaker 04:
He didn't rehire him.

[00:23:59] Speaker 04:
No question about that, right?

[00:24:01] Speaker 03:
Well, he didn't tell him, I won't bring you back.

[00:24:03] Speaker 03:
The conversation ended when Mr. Zapata said, I don't even want my job back anymore.

[00:24:08] Speaker 03:
And he was never heard from again.

[00:24:09] Speaker 04:
No, that's after.

[00:24:10] Speaker 04:
Yes.

[00:24:11] Speaker 04:
Sent three emails.

[00:24:14] Speaker 04:
And Rosenberg never responded.

[00:24:16] Speaker 03:
He did not respond to all those emails.

[00:24:19] Speaker 03:
I think he responded.

[00:24:20] Speaker 04:
So his silence, he wasn't reconsidering.

[00:24:23] Speaker 04:
He wasn't putting Zapata back.

[00:24:25] Speaker 04:
Anyway, I don't want to belabor this point.

[00:24:28] Speaker 04:
Because our standard of review here is so limited.

[00:24:33] Speaker 03:
I certainly understand that, Your Honor.

[00:24:35] Speaker 03:
But this would by no means be the first case where the court concluded the board did not have substantial evidence to support a finding of a discriminatory discharge, the Sturm-Trotus case from just a few months ago, I think is a good example of that, that we've discussed in our reply brief that came out after our opening brief, I believe.

[00:24:53] Speaker 05:
Right.

[00:24:55] Speaker 05:
Any other questions, Judge Rogers?

[00:24:57] Speaker 03:
Thank you.

[00:24:59] Speaker 05:
Thank you.

[00:24:59] Speaker 05:
We'll give you a couple of minutes for rebuttal.

[00:25:01] Speaker 03:
Thank you so much.

[00:25:07] Speaker 05:
Mr. Odesky.

[00:25:14] Speaker 02:
Morning, Your Honors.

[00:25:15] Speaker 02:
May it please the court.

[00:25:16] Speaker 02:
I'm Jared Odesky for the National Labor Relations Board.

[00:25:20] Speaker 02:
Substantial evidence supports the board's finding that Acumen violated the act by discharging Gregory Sepada.

[00:25:26] Speaker 02:
A reasonable mind looking at the credited evidence certainly could conclude, one, that Acumen's discharge of Zapata

[00:25:33] Speaker 02:
not two weeks after the filing of the union election petition was motivated by Zapata's union activity.

[00:25:40] Speaker 02:
And two, the document failed to show that after seven weeks of noncompliance with the city's vaccination order and one day before Zapata's scheduled vaccine appointment, it terminated Zapata because it feared penalization by the city.

[00:25:53] Speaker 02:
So the board's order is entitled to full enforcement on this standard review.

[00:25:57] Speaker 02:
So starting first with unlawful motivation, the board's finding rested on two bases, both knowledge and anti-union animus.

[00:26:04] Speaker 02:
And as your honors acknowledged, with respect to knowledge, Acumen has conceded in its reply brief that record evidence supports the finding that Coppola knew of Zapata's union activity.

[00:26:16] Speaker 02:
That leaves two potential paths for finding that Rosenblum, the decision maker here, had knowledge.

[00:26:22] Speaker 02:
One of those is the well-recognized doctrine of imputation, where Coppola's knowledge was imputed to Rosenblum.

[00:26:29] Speaker 02:
And under that doctrine, as established in Clark and Wilkins, a supervisor or agent's knowledge imputed absent an affirmative basis not to impute it.

[00:26:38] Speaker 02:
And here, there is no credited evidence to that effect.

[00:26:42] Speaker 02:
In addition, we have Rosenblum's own reasonable suspicion.

[00:26:46] Speaker 02:
And how high level the supervisor is.

[00:26:50] Speaker 02:
So with respect to the doctrine of imputation for knowledge, all of the cases that Acumen cites for that proposition deal with this junior supervisor concept in the context of animus.

[00:27:02] Speaker 02:
With respect to knowledge, there is nothing in the doctrine that actually says, well, a low-level supervisor or a low-level agent, that doesn't matter because it's expected that it can be communicated up the chain.

[00:27:14] Speaker 02:
But in addition here, we have significant evidence that actually buttresses

[00:27:18] Speaker 02:
the imputation of animus.

[00:27:19] Speaker 02:
We have daily conversations between Coppola and Rosenblum.

[00:27:23] Speaker 05:
I'm talking about knowledge.

[00:27:27] Speaker 05:
You said animus.

[00:27:28] Speaker 02:
Oh, I apologize.

[00:27:29] Speaker 02:
Yes, so for knowledge.

[00:27:30] Speaker 02:
So there's significant evidence buttressing the imputation of knowledge, the daily conversations between Coppola and Rosenblum about this very small engineering workforce,

[00:27:40] Speaker 02:
The fact that Coppola shared the union election petition with Rosenblum and they had a conversation about it.

[00:27:46] Speaker 02:
And then there's also precedent for them talking about unionization in the context of the job interview.

[00:27:51] Speaker 02:
So it was a perfectly reasonable imputation based on both the doctrine, but also circumstantial evidence that supported it.

[00:27:59] Speaker 05:
Is there any evidence in the record as to what the conversation between Coppola and Rosenblum was?

[00:28:04] Speaker 05:
Can you say they talked about the petition?

[00:28:06] Speaker 02:
Yes.

[00:28:07] Speaker 02:
So on JA 167, there is just a note that Rosenblum says, we talked about Coppola being on compliance.

[00:28:18] Speaker 02:
And so there's nothing more in the record.

[00:28:20] Speaker 02:
But essentially, in one point, Rosenblum said, well, we actually didn't talk about it.

[00:28:26] Speaker 02:
And then he separately said we talked about it.

[00:28:29] Speaker 05:
So we don't have any evidence as to the content of that.

[00:28:33] Speaker 02:
Other than Coppola.

[00:28:34] Speaker 02:
Rosenblum saying that Coppola was on compliance, but they did have a conversation about it.

[00:28:39] Speaker 05:
So we know that we don't have any basis for.

[00:28:43] Speaker 05:
So we know we need even reasonable inferences about the content of that conversation.

[00:28:48] Speaker 05:
Well, we know that easy question to ask witnesses at a hearing and they didn't have the information.

[00:28:53] Speaker 05:
They didn't have the information.

[00:28:54] Speaker 05:
It's just an empty record on the content of that conversation.

[00:28:57] Speaker 02:
Well, based on the entirety of the evidence, we knew that Coppola and Rosenbloom were having frequent conversations, had spoken about unionization before, which was another part of the basis for thinking that in that.

[00:29:08] Speaker 05:
A general conversation about unionization, you need knowledge of Zapata's union activity.

[00:29:15] Speaker 05:
And that's, you need some evidence, something.

[00:29:19] Speaker 02:
So Coppola.

[00:29:20] Speaker 05:
They talked a lot that he would have had a reasonable suspicion, at least, that Zapata was involved in union activity.

[00:29:30] Speaker 02:
So we do have that with respect to Rosenblum's own reasonable suspicion, which he developed from the Indeed message and the conversation that they then had.

[00:29:37] Speaker 02:
So at the end of January.

[00:29:40] Speaker 05:
Was Rosenblum testified that based on that conversation, he developed a suspicion?

[00:29:44] Speaker 02:
No, but that was a perfectly reasonable inference for the board to draw.

[00:29:49] Speaker 02:
I'm not sure of that, Your Honor, but I do know that the board could reasonably draw the inference that if a conversation happened at the end of January regarding wages and benefits, and then several days later, a union petition comes forward, I also want to make a correction.

[00:30:03] Speaker 02:
At that point, there were only three potential engineers in the unit, one of whom was Coppola, a supervisor.

[00:30:09] Speaker 02:
You just have Garcia and Zapata at that point.

[00:30:12] Speaker 02:
It's a perfectly reasonable inference to think that Rosenblum had to suspect.

[00:30:17] Speaker 02:
that Zapata was at least involved in this petition.

[00:30:21] Speaker 02:
So that independently establishes knowledge.

[00:30:24] Speaker 02:
But with respect to the imputation doctrine, I do just want to note that the different aspects I was talking about are all reasons that buttress the imputation.

[00:30:33] Speaker 02:
But the doctrine operates without any circumstantial evidence.

[00:30:37] Speaker 02:
If there is not affirmative evidence that imputation should not be implied, then it continues to go through.

[00:30:44] Speaker 05:
So next time.

[00:30:49] Speaker 02:
So with respect to animus, the board relies on three pieces of evidence.

[00:30:54] Speaker 02:
So one of those is Rosenbloom's statement that then gets communicated out to Zapata in some fashion.

[00:31:00] Speaker 02:
So in this conversation with Coppola,

[00:31:03] Speaker 02:
Rosenblum says that one of the terms of employment here is that this is a non-union building.

[00:31:08] Speaker 05:
Where did you say terms of employment?

[00:31:09] Speaker 05:
All I saw was the testimony that a couple of said, hey, I'm a union guy.

[00:31:15] Speaker 05:
That's what I do.

[00:31:17] Speaker 05:
And Rosenblum says, this is a non-union building, I think.

[00:31:21] Speaker 02:
Right.

[00:31:22] Speaker 05:
This is a non-union building.

[00:31:23] Speaker 02:
That's correct.

[00:31:24] Speaker 05:
Which was a factually accurate statement.

[00:31:26] Speaker 05:
So devoid of any context, in that precise context where the guy says, hey, I've been union, long time union, and he goes, this is a non-union building, and says nothing more.

[00:31:38] Speaker 02:
And then on JA 125 and 126, Coppola does testify that Rosenblum then, in this context, told him the terms of employment.

[00:31:48] Speaker 02:
And this was also a job interview for Coppola.

[00:31:51] Speaker 02:
And so this conversation about,

[00:31:54] Speaker 02:
Well, here are the terms of employment at the building.

[00:31:56] Speaker 05:
He said he interpreted it as a term.

[00:31:58] Speaker 05:
But he never said that.

[00:31:59] Speaker 05:
There's no testimony that Rosenbaum ever said this.

[00:32:02] Speaker 05:
Keeping it not.

[00:32:03] Speaker 05:
Just one thing to say, it is non-union.

[00:32:05] Speaker 05:
But keeping it non-union is a term.

[00:32:09] Speaker 02:
Well, so this is how Coppola understood it.

[00:32:11] Speaker 02:
And that's evidence of what was happening in that conversation.

[00:32:14] Speaker 05:
It doesn't matter.

[00:32:14] Speaker 05:
He's a supervisor.

[00:32:15] Speaker 05:
It's perfectly fine to say that to supervisors.

[00:32:17] Speaker 02:
So there's two reasons.

[00:32:18] Speaker 05:
How is it animus to say something that's perfectly lawful to say to a supervisor?

[00:32:21] Speaker 02:
Sure.

[00:32:22] Speaker 02:
So one of the reasons is that even if Rosenbloom thought that Coppola was a supervisor when he was hiring him, he was hiring him as the chief engineer.

[00:32:32] Speaker 02:
And the record is cleared.

[00:32:33] Speaker 05:
And there was or was not a supervisor as a matter of law.

[00:32:36] Speaker 05:
All right.

[00:32:37] Speaker 05:
And the board's held and there's no contest here that he was a supervisor.

[00:32:41] Speaker 02:
Sure.

[00:32:41] Speaker 05:
It was perfectly lawful.

[00:32:43] Speaker 05:
What he said was perfectly lawful to say to a supervisor.

[00:32:46] Speaker 05:
So how can that be?

[00:32:48] Speaker 05:
What is your best case?

[00:32:49] Speaker 05:
at a perfectly lawful, factually accurate statement as narrow as this is a non-union building to someone whom he's allowed to say that.

[00:32:57] Speaker 02:
So it's the cases where the employer intends for that statement to be communicated out from the supervisor to employees.

[00:33:08] Speaker 05:
There's evidence of that.

[00:33:09] Speaker 05:
He intended that.

[00:33:10] Speaker 02:
So he hired Coppola as chief engineer, tasked him with onboarding employees, and communicating directives from him, which is clear.

[00:33:17] Speaker 02:
And then Rosenblum, when he spoke to the engineers, or Rosenblum when he spoke to Zapata, said the building was not in Union.

[00:33:24] Speaker 05:
Not that this position... But he didn't respond to a question from Zapata.

[00:33:27] Speaker 05:
He didn't do it as part of the onboarding process.

[00:33:29] Speaker 05:
Zapata asked and he responded.

[00:33:31] Speaker 05:
And that conversation... It's different than a directive as part of your onboarding process to tell everyone this place is not in Union.

[00:33:37] Speaker 02:
So it was early in Mr. Zapata's employment, and the conversation was essentially Mr. Zapata saying, how come we're not union?

[00:33:44] Speaker 02:
And then Coppola explains the barrier because Rosenblum didn't want it in the building.

[00:33:51] Speaker 02:
Coppola, in fact, had wanted to be union, but he explained the reason we're not union is because Rosenblum doesn't want it in the building.

[00:34:00] Speaker 02:
And that's his interpretation of what Rosenblum said, and that is the coercive statement that he communicates out.

[00:34:07] Speaker 05:
That's from Coppola.

[00:34:08] Speaker 05:
It's not from Rosenblum.

[00:34:09] Speaker 02:
That's from Coppola.

[00:34:10] Speaker 05:
Coppola could be totally wrong about all that.

[00:34:13] Speaker 02:
Well, Coppola was taking a conversation from context with Mr. Rosenblum and under the board's standard for determining whether something is in... What's the best case that's analogous to that?

[00:34:26] Speaker 05:
That you have all Mr. Rosenblum who said is...

[00:34:30] Speaker 05:
This is a non-union building to someone who's a supervisor, perfectly lawful.

[00:34:37] Speaker 05:
And then how many weeks, months later?

[00:34:39] Speaker 02:
About eight or nine months later.

[00:34:41] Speaker 05:
Eight or nine months later.

[00:34:42] Speaker 05:
Yes.

[00:34:43] Speaker 05:
In response to a question, so not as part of onboarding.

[00:34:48] Speaker 05:
In response to a question, the supervisor says, this is my interpretation of that conversation.

[00:34:54] Speaker 05:
And that counts as evidence of animus on the part of Mr. Rosenblum.

[00:34:58] Speaker 05:
What is your best case for that?

[00:34:59] Speaker 02:
So I think I would point your honor to Edelman Chocolate Company, which is a board case.

[00:35:03] Speaker 05:
Do you have any circuit precedent you can point to?

[00:35:05] Speaker 02:
I've been happy to supply a post-argument letter to the court on that point.

[00:35:09] Speaker 02:
I do think the board has lots of cases.

[00:35:13] Speaker 05:
I mean, the board did it here, so I don't need a court precedent on that.

[00:35:18] Speaker 05:
That's your one thing.

[00:35:19] Speaker 05:
What else do you have?

[00:35:19] Speaker 02:
Yes.

[00:35:20] Speaker 02:
So also, there's Coppola's accusation to Zapata.

[00:35:24] Speaker 05:
But that's not evidence of Mr. Rosenberg.

[00:35:26] Speaker 02:
So I think here, the Acumen cites all of these cases with respect to him being a junior-level supervisor.

[00:35:33] Speaker 02:
I think that's a red herring here.

[00:35:35] Speaker 02:
He's not the junior-level supervisor.

[00:35:37] Speaker 02:
This is a 13-person workplace.

[00:35:39] Speaker 02:
He's the supervisor for the engineers.

[00:35:41] Speaker 05:
For Animus, we have said that there needs to be, I mean, it's the cat's paw theory that's used in employment cases of all variety that there needs to be some evidence that it was communicated to

[00:35:55] Speaker 05:
The decision-maker.

[00:35:57] Speaker 05:
Anonymous.

[00:35:58] Speaker 05:
Anonymous.

[00:35:59] Speaker 02:
Hear that evidence is circumstantial.

[00:36:01] Speaker 02:
Again, Coppola and Rosenblum.

[00:36:03] Speaker 05:
Is there any evidence that this was it you or wasn't me was communicated to Mr. Rosenblum?

[00:36:08] Speaker 02:
The timing of it is one, it comes after the union petition.

[00:36:12] Speaker 02:
And he comes in front of him.

[00:36:13] Speaker 05:
Every conversation happens after the position we're going to assume was conveyed to Mr. Rosenblum?

[00:36:17] Speaker 02:
No.

[00:36:18] Speaker 02:
But I do think that with respect to, you know, that he delivers the petition to Mr. Rosenblum and Coppola.

[00:36:24] Speaker 05:
You've got no evidence.

[00:36:25] Speaker 05:
The problem is you've got no evidence.

[00:36:27] Speaker 05:
You keep pointing to Mr. Coppola, but there's no evidence that his animus was communicated to Mr. Rosenblum, who only, the only thing you have that he did was a year and a half or two years earlier said to Mr. Coppola,

[00:36:43] Speaker 05:
The factually accurate legally authorized statement.

[00:36:45] Speaker 05:
This is a non union building.

[00:36:47] Speaker 05:
That's all you got.

[00:36:48] Speaker 02:
So I think that the fact that Coppola, you know, is talked about it by acumen as a lifetime union member and then suddenly is confronting employees about this had to be either you or me and accusing them.

[00:37:01] Speaker 02:
Is circumstantial evidence that either some directive was coming from above or that he was communicating something upwards?

[00:37:09] Speaker 02:
Negative with respect to the union, but I think that the first one is more likely inference that the board draws here that there is between the statement and this accusation evidence that there's.

[00:37:20] Speaker 05:
I don't understand why that one is even, I don't know why it's even reasonable to think it came from Mr. Rosenbaum as opposed to Mr. Coppola wanted to make sure it wasn't, no one was thinking it was him that did it.

[00:37:32] Speaker 05:
He does have a job limitation on it.

[00:37:35] Speaker 05:
He thinks it's part of his job requirements.

[00:37:37] Speaker 02:
I would contrast here from the cases that Acumen cites where junior level supervisors have not been, their animus could not be imputed upwards.

[00:37:47] Speaker 02:
So Selco was a case where there was a statement of a supervisor at a single Verizon store in Brooklyn that the board had then said could show animus of Verizon HR.

[00:37:57] Speaker 02:
And Nico was a case with their statements of two supervisors at a 785-person plant.

[00:38:03] Speaker 02:
And there, they said this couldn't show Animus by the HR management.

[00:38:08] Speaker 02:
This case is different.

[00:38:09] Speaker 02:
Again, it's a 13-person workplace.

[00:38:11] Speaker 02:
Coppola and Rosenblum are meeting every day.

[00:38:14] Speaker 05:
And you're just taking the constructive knowledge rule and moving it over to Animus, which we haven't done.

[00:38:20] Speaker 05:
Really, all you're doing here is constructive knowledge, because there's nothing other than surmise

[00:38:26] Speaker 02:
I would draw a distinction between constructive knowledge, like the imputation doctrine, where there actually does not need to be affirmative circumstantial evidence.

[00:38:37] Speaker 02:
And here, where there actually is affirmative circumstantial evidence, yes, we don't have direct proof that Coppola had a conversation with Rosenblum, that Rosenblum had a conversation with Coppola that was infected by animus or where he was directed to make this accusation.

[00:38:52] Speaker 02:
However,

[00:38:54] Speaker 02:
We know that they were having these conversations every day.

[00:38:56] Speaker 02:
They ate lunch together every day.

[00:38:58] Speaker 02:
And there's a lot.

[00:38:59] Speaker 05:
We know we had these conversations every day.

[00:39:01] Speaker 02:
It's a reasonable inference for the board to have drawn.

[00:39:04] Speaker 05:
You just don't have to have any evidence.

[00:39:06] Speaker 05:
They just go, well, this is why that what drawn from what you have to have facts to draw it from.

[00:39:11] Speaker 05:
The fact that they had lunch every day means we can assume they were talking anti-union smack during every lunch.

[00:39:16] Speaker 02:
Again, I would point to the fact that they had a conversation at the inception of Coppola's employment regarding unionization, that the petition was shared.

[00:39:24] Speaker 02:
I think the collective evidence points to the fact that there was a... Of course you had to send that to him.

[00:39:30] Speaker 05:
That's not suggestive of anything.

[00:39:32] Speaker 02:
And the board said it was unreasonable to think that during that conversation, because we know that Coppola had knowledge of Zapata's union activity, nothing at all was mentioned about that activity.

[00:39:43] Speaker 05:
Again, this isn't knowledge about the union activities.

[00:39:46] Speaker 05:
You've got to show animus, that the animus that either, put aside the questionable proposition that Coppola himself had an anti-union animus given his history, but that somehow,

[00:40:00] Speaker 05:
He had animus, and that animus infected information that he gave, that he sort of used that to feed the decision maker information to cause him to be fired.

[00:40:13] Speaker 02:
If we knew that Coppola had anti-union animus, which we do from this statement.

[00:40:19] Speaker 05:
That's not an anti-union animus.

[00:40:22] Speaker 05:
I don't want to get in trouble with my boss statement.

[00:40:25] Speaker 05:
That's not anti-union at all.

[00:40:27] Speaker 02:
This had to be either you or me.

[00:40:28] Speaker 05:
Well, this is... Yeah, because his interpretation of a conversation many, many, many months before was that it's a condition of his employment that it's a non-union, that it's a non-union place, or that he's non-union, I guess.

[00:40:44] Speaker 05:
I don't know why we would infer without any other evidence that

[00:40:50] Speaker 05:
the employer was breaking the law and saying, and don't you let any union in here.

[00:40:55] Speaker 05:
It's just a lot to infer that someone went from an accurate and lawful statement to an illegal one, which would suggest animus.

[00:41:04] Speaker 05:
And so I just don't know how you're getting the animus, even if we say Coppola had animus, which is a stretch given his history, as opposed to fear about losing his job.

[00:41:15] Speaker 05:
How we get that animus up to Mr. Rosenblum.

[00:41:19] Speaker 02:
So under Parsippany Hotel, this circuit has said that something that would be an 8A1 violation under the act is evidence of amnesty.

[00:41:27] Speaker 05:
And so when we look at what a violation to ask whether someone's involved in the union, I thought employers could do that.

[00:41:35] Speaker 02:
So one, I would classify this as an accusation here, essentially saying it had to be either you or me.

[00:41:42] Speaker 02:
Coppola knew it was not him.

[00:41:44] Speaker 02:
It was an accusation against Zapata that he is the one who brought the union in.

[00:41:48] Speaker 02:
And second, when it comes to asking employees.

[00:41:50] Speaker 05:
Get me to the decision maker having animus.

[00:41:52] Speaker 05:
That's the gap.

[00:41:54] Speaker 05:
Even we give you that.

[00:41:56] Speaker 05:
Sure.

[00:41:56] Speaker 05:
I think there's different interpretations.

[00:41:57] Speaker 05:
But even we give you and the board that because of our deference, how do we get animus up to Mr. Rosenblum?

[00:42:03] Speaker 02:
So if Coppola had anti-union animus,

[00:42:07] Speaker 02:
He's the only source of information that Mr. Rosenblum has with respect to any information about employee's vaccination, any information about unionization.

[00:42:16] Speaker 05:
You think he doctored the records?

[00:42:18] Speaker 02:
I'm not saying he doctored the records, but I do think he.

[00:42:21] Speaker 05:
He just gave him the COVID records that he had that were accurate.

[00:42:23] Speaker 05:
That's not feeding him information driven by animus.

[00:42:29] Speaker 02:
Any information with respect to any of the work of the engineers was being communicated upwards from Coppola to Rosenblum.

[00:42:37] Speaker 02:
And so I think it was fair for the board to infer that if Coppola had animus, it was either coming from above or it was being communicated upwards in some way.

[00:42:46] Speaker 04:
Let me ask you, counsel.

[00:42:47] Speaker 04:
I thought the evidence was that Coppola, when he was hired, had been a union man for a long time.

[00:42:55] Speaker 04:
And he's told by Rosenberg, this is a non-union building.

[00:43:02] Speaker 02:
That's correct.

[00:43:03] Speaker 04:
I didn't know that the board's argument or a

[00:43:06] Speaker 04:
position was that it was relying on any anti-union animus of Coppola's.

[00:43:15] Speaker 04:
I thought the argument was Coppola was told when he was being employed that this was a non-union place.

[00:43:27] Speaker 04:
He became the supervisor.

[00:43:31] Speaker 04:
He knew about this union activity after Zabala came on board.

[00:43:38] Speaker 04:
He said, you know, did you do this?

[00:43:41] Speaker 04:
And Zapata said, no.

[00:43:44] Speaker 04:
All right.

[00:43:44] Speaker 04:
So I thought the argument was, well, at most, Coppola knew Zapata was lying because there was nothing that Coppola himself had done to evidence any anti-union bias.

[00:44:05] Speaker 04:
And as Judge Millett's questioning has

[00:44:08] Speaker 04:
emphasized, Coppola was merely doing his job as he interpreted Rosenberg's statement about this is a non-union building.

[00:44:21] Speaker 04:
And a reasonable inference from that, I thought, was that this is, and I'm hiring you, and there's nothing to say that Rosenberg was neutral on unionization.

[00:44:39] Speaker 04:
So Coppola is doing his job.

[00:44:41] Speaker 04:
He's interpreting what Rosenberg said.

[00:44:43] Speaker 04:
And the gap here may be that there's no evidence that Rosenberg knew that Coppola was conveying this to new employees in terms of

[00:45:06] Speaker 04:
This is a non-union building and it's going to stay a non-union building.

[00:45:10] Speaker 04:
And if you're going to be supervisor, be sure you make that clear to everyone.

[00:45:18] Speaker 04:
I thought originally that was a reasonable inference.

[00:45:23] Speaker 04:
Since Rosenberg's standard operating procedure for communicating with the engineers was through Coppola.

[00:45:35] Speaker 04:
So to the extent that Rosenberg had any idea what was going on, it was coming from Coppola.

[00:45:43] Speaker 04:
And there's nothing to say that he had any concern about how Coppola was interpreting his position.

[00:45:57] Speaker 04:
But Rosenberg knew from speaking directly with Zapata

[00:46:02] Speaker 04:
that Zapata was concerned about a lot of benefits that didn't attach to his job.

[00:46:12] Speaker 04:
So then we've got this city directive.

[00:46:17] Speaker 04:
Nobody's enforcing it, so far as the engineers are concerned.

[00:46:24] Speaker 04:
Coppola says, I'll let you know when Rosenberg's enforcing it.

[00:46:30] Speaker 04:
Then,

[00:46:32] Speaker 04:
we have this sort of inexplicable fact of if Rosenberg was enforcing it, looking at what the city was doing, why would he ignore Zapata's offer that he had an appointment the next day to get his vaccination?

[00:47:00] Speaker 04:
So there's no evidence that Zapata was an unsatisfactory employee.

[00:47:10] Speaker 04:
So what's the explanation for this harsh treatment?

[00:47:17] Speaker 04:
And so the answer in part is, well, he said he'd reconsider it.

[00:47:21] Speaker 04:
But when Zapata sent him those three emails after he got the vaccination,

[00:47:30] Speaker 04:
Rosenberg never responded.

[00:47:34] Speaker 04:
And at that point, Zapata said, well, I don't want my old job back.

[00:47:40] Speaker 04:
So this court is getting tougher and tougher on anti-union, unanimous evidence.

[00:47:48] Speaker 04:
And we keep reversing.

[00:47:51] Speaker 04:
So this comes the board's decision before a lot of these reversals by our court.

[00:47:58] Speaker 04:
So that's where we are now.

[00:48:03] Speaker 04:
And that's, I think, what you're hearing in a lot of our questions.

[00:48:10] Speaker 02:
Sure, Your Honor.

[00:48:10] Speaker 02:
And I think your characterization of the case overall is excellent.

[00:48:16] Speaker 02:
I would next turn for animus to timing, which I think your question brought up.

[00:48:23] Speaker 02:
So I think perhaps one of the key pieces of animus here is that within two weeks of the filing of the petition and three weeks before the union election,

[00:48:32] Speaker 02:
We have the firing of a known union supporter, which is on its face suspicious and gives rise to an inference of animus.

[00:48:40] Speaker 02:
Now, of course, the inference of animus here is rebuttable by an employer's explanation that it would have taken a different action.

[00:48:48] Speaker 02:
And it doesn't matter whether this happens at stage one of the analysis or stage two of the analysis, because either way, we already have an inference that timing creates.

[00:48:58] Speaker 02:
And so all the board has to do is consider the employer's proffered explanation and dismiss it.

[00:49:04] Speaker 02:
And here, the board found no alternative explanation that explained Zapata's discharge.

[00:49:09] Speaker 02:
And so moving on to the proffered explanation, Acumen says it fired Zapata because it feared penalization by the city.

[00:49:18] Speaker 02:
And the board concluded that this was not a fear that Rosenbloom reasonably held for a number of reasons.

[00:49:25] Speaker 02:
One, Acumen had never seemed to fear city enforcement before in the prior seven weeks, during which time it had no reason to think that the city would not be enforcing the policy.

[00:49:34] Speaker 02:
It repeatedly told employees it wasn't enforcing it.

[00:49:37] Speaker 02:
And it said it would alert employees when it actually began taking it seriously.

[00:49:41] Speaker 02:
When the city terminated its own unvaccinated employees, it was no indication this was a harbinger of enforcement against private businesses.

[00:49:48] Speaker 02:
And of course, Zapata had a vaccine appointment for the next day.

[00:49:50] Speaker 02:
The court has no proof.

[00:49:54] Speaker 06:
Did the data amount to a finding by the board that Rosenbloom stated reasons for determination were pretext?

[00:50:05] Speaker 02:
That's correct.

[00:50:06] Speaker 02:
And it did that pretext analysis.

[00:50:08] Speaker 02:
It characterized that profit reason as pretext at the second stage.

[00:50:13] Speaker 06:
So do you have authority that timing plus pretext is sufficient to prove animus?

[00:50:20] Speaker 02:
That's right, Your Honor.

[00:50:21] Speaker 02:
So we do in this circuit, it has been held that timing alone is sufficient for a finding of animus.

[00:50:30] Speaker 02:
So that is

[00:50:35] Speaker 02:
with the Inova Health Systems case from this circuit in 2015.

[00:50:39] Speaker 02:
And Stern Produce, which Acumen points to, is just one case where it said, well, timing here alone is not enough.

[00:50:49] Speaker 02:
But this court has held that timing alone can be enough as evidence of animus.

[00:50:56] Speaker 02:
And then pretext on top of that is additional evidence of animus that the court can consider.

[00:51:04] Speaker 02:
The court has no further questions.

[00:51:05] Speaker 02:
The board respectfully requests full enforcement of this order.

[00:51:07] Speaker 05:
Any more questions, Judge Rogers?

[00:51:09] Speaker 02:
No, thank you.

[00:51:10] Speaker 05:
Thank you very much.

[00:51:11] Speaker 02:
Thank you.

[00:51:13] Speaker 05:
Mr. Peggis will give you two minutes.

[00:51:21] Speaker 03:
Thank you.

[00:51:21] Speaker 03:
I'm not sure where those cases came from, but I mean, it's pretty clear that timing alone, and you talked about timing plus pretext, yes, but timing alone is not going to be enough to establish a prima facie case.

[00:51:34] Speaker 03:
Um, but whereas again, the evidence of a pretext here, what was just recounted because we had a long discussion about the Polis conversation with Zapata.

[00:51:47] Speaker 03:
Let me just begin there because I think that's an interesting point, which is first of all, the question was, um, uh, it had to be you or me.

[00:51:56] Speaker 03:
The comment was it had to be you and me to brought the petition to the building.

[00:52:01] Speaker 03:
Where does that evidence anti-union animus on the part of someone who is a lifetime union member, or really anybody?

[00:52:07] Speaker 03:
It's a simple inquiry.

[00:52:09] Speaker 03:
And as a supervisor, the company can, through its supervisors, it's not precluded from making inquiries about union activity.

[00:52:18] Speaker 03:
It's precluded from discriminating against people for engaging in union activity.

[00:52:22] Speaker 03:
The company has a right to know what's going on within its workforce.

[00:52:25] Speaker 03:
But this was a pretty harmless comment.

[00:52:29] Speaker 03:
More like a joke.

[00:52:30] Speaker 06:
The problem for you, in my view, is the pretext finding.

[00:52:34] Speaker 06:
I mean, when we tried discrimination cases, the standard jury instruction that I used to give as a district court judge was to guide the jury.

[00:52:48] Speaker 06:
It's like, well, if the employer says that they fire someone for stealing pencils from the supply room and taking them home,

[00:53:00] Speaker 06:
And that's their grounds for whatever the adverse action is.

[00:53:08] Speaker 06:
And technically there is a policy that says you can't remove company pencils from the site.

[00:53:19] Speaker 06:
they know that everybody is taking pencils home and they only discipline, you know, Susie for doing so, then you can reasonably, you don't have to, but you could reasonably conclude that the grounds that Susie took pencils home was a pretext for the adverse action.

[00:53:46] Speaker 06:
That's just, you know, kind of common sense.

[00:53:49] Speaker 06:
And here, if the board credited that the policy conveyed by supervisor Polo was that we're not really enforcing this vaccine mandate.

[00:54:05] Speaker 06:
And I'll let you know when they do start enforcing it.

[00:54:12] Speaker 06:
And so that's the policy.

[00:54:15] Speaker 06:
And yet, all of a sudden, they depart from that policy to terminate Zapata.

[00:54:23] Speaker 06:
At least, that's the way that the board saw it.

[00:54:26] Speaker 06:
Then they are either departing from their policy or they're kind of using that policy as a pretext.

[00:54:34] Speaker 06:
And that's the board's finding.

[00:54:37] Speaker 06:
So why isn't that pretext finding supported by substantial evidence?

[00:54:44] Speaker 03:
Well, when you're talking about pretext, you're talking about pretext for what?

[00:54:47] Speaker 03:
Pretext to cover up discriminatory motivation.

[00:54:50] Speaker 03:
So in your example, in the, let's call it a gender discrimination case, I don't want to make too many assumptions, but since you used an employee named Susie was the only one who was terminated for taking the pencils.

[00:55:02] Speaker 03:
Well, suppose Jill and Joan and 10 other females did the same thing, but weren't fired.

[00:55:08] Speaker 03:
That would eliminate

[00:55:09] Speaker 03:
any notion that there was gender-based discrimination going on, because Susie must have been singled out for some other reason.

[00:55:15] Speaker 03:
Same thing here by analogy, pretext for what?

[00:55:19] Speaker 03:
What the board is required to prove is that it's a pretext to cover up anti-union animus.

[00:55:23] Speaker 03:
And if Mr. Capola is providing assurances of non-enforcement before there's any union activity on the building that anybody knew about, whether it's Capola or Rosenblum.

[00:55:34] Speaker 03:
So this is late December, early January that he's telling people

[00:55:38] Speaker 03:
We're not, Jeff is not enforcing it yet.

[00:55:40] Speaker 03:
Mr. Rosenblum is not enforcing this yet.

[00:55:41] Speaker 03:
I'll tell you when he does.

[00:55:43] Speaker 03:
How could that be evidence of anti-union animus that when the union was not on the scene yet?

[00:55:48] Speaker 06:
I don't think that that timing undercuts the board's finding at all.

[00:55:52] Speaker 06:
The point is, is that that's the policy.

[00:55:55] Speaker 06:
If anything, that timing hurts your position because if that's the policy and then all of a sudden it's not the policy anymore after the company finds out that there's union activity,

[00:56:07] Speaker 06:
then I think that makes it worse for you.

[00:56:11] Speaker 03:
I would see it differently, Your Honor.

[00:56:13] Speaker 03:
Of course, we're still talking about Coppola here, not Rosenblum.

[00:56:19] Speaker 03:
There's no evidence that Rosenblum issued that directive to Coppola.

[00:56:24] Speaker 05:
Rosenblum is suddenly the one that changed the policy.

[00:56:27] Speaker 03:
I'm sorry?

[00:56:28] Speaker 05:
Rosenblum suddenly changes the policy.

[00:56:31] Speaker 03:
That's right.

[00:56:33] Speaker 03:
Right.

[00:56:34] Speaker 03:
And what the board ignored is the intervening event as though it didn't happen.

[00:56:37] Speaker 05:
No, there's two possible intervening events.

[00:56:40] Speaker 05:
One was he read an article or part of an article but didn't read all the information.

[00:56:44] Speaker 05:
Or two, that the intervening event was the petition.

[00:56:49] Speaker 05:
One of those two was the intervening event and the board said we think it's the latter.

[00:56:57] Speaker 03:
Right, I mean, that's the sequence of events.

[00:56:59] Speaker 03:
That's the chronology, right?

[00:57:01] Speaker 03:
But we still get back to the same, you know, funding.

[00:57:04] Speaker 05:
When an employer comes up with a false reason for getting rid of somebody, which is the board's funding, I'm not, I understand that's not your client's view, but taking the board's determination here, that's a factual determination whether it's false or not, finds a false reason plus timing.

[00:57:22] Speaker 05:
So the fact that someone manufactures a reason for discharge

[00:57:25] Speaker 05:
Which on his face doesn't make a whole lot of sense when he was getting the vaccine the next day.

[00:57:29] Speaker 05:
If he sat in the office and said, I refuse, I refuse, it'd be one thing.

[00:57:33] Speaker 05:
A long time employee here, no objections to his work.

[00:57:36] Speaker 05:
You're running out of engineers as it is.

[00:57:38] Speaker 05:
And they say, I can't wait another 12 hours for you to get your vaccine.

[00:57:48] Speaker 05:
that they say that that is itself lying is evidence of animus to bind with the timing is what the board's rationale is what's right isn't that suffice for animal.

[00:57:57] Speaker 03:
I understand your point but the directive from Mr. Rosenblum to Mr. Zapata was come to my office with your vaccination card or your request for an exemption he didn't get that now one can quibble or argue of whether he treated him fairly.

[00:58:11] Speaker 03:
I'm sorry.

[00:58:12] Speaker 03:
He got an appointment.

[00:58:13] Speaker 06:
He said he had an appointment.

[00:58:14] Speaker 06:
He took door number three.

[00:58:15] Speaker 06:
I guess he your point is he was given two doors and tried to create a third door.

[00:58:24] Speaker 03:
Well, I mean, Mr. Roosevelt asked for one of two things, he got neither, right?

[00:58:28] Speaker 05:
So again, could- Was he afraid New York City was going to come break down his door that afternoon and say, you only got one employee out of compliance and you can say, yeah, but he's going to get his vaccine tomorrow and that they were going to throw him in jail and find the company?

[00:58:43] Speaker 03:
Listen, he just read that the city had literally fired a thousand workers for not being vaccinated.

[00:58:47] Speaker 03:
He has New York City departments as tenants in his building, including the NYPD.

[00:58:53] Speaker 03:
Did he know they were going to knock on his door that day or the next day?

[00:58:56] Speaker 05:
I'm sorry?

[00:58:58] Speaker 05:
I don't even understand that rationale.

[00:59:02] Speaker 05:
I've got other people in the building.

[00:59:03] Speaker 05:
I don't understand that rationale.

[00:59:04] Speaker 03:
Well, he was concerned if the city was enforcing it against its own employees that his building might be a target because they have.

[00:59:13] Speaker 05:
We have to be a target.

[00:59:14] Speaker 05:
Like, within hours.

[00:59:16] Speaker 03:
Not necessarily.

[00:59:17] Speaker 05:
Because as of the next day, he's going to be in full compliance once the body gives his vaccine.

[00:59:22] Speaker 03:
He certainly had questions in his mind as to whether Mr. Zapata was being sincere about getting the vaccination at that point.

[00:59:29] Speaker 03:
So he decided to.

[00:59:30] Speaker 05:
You only got to wait a few hours for that.

[00:59:32] Speaker 05:
You only got to wait a few hours to figure that out.

[00:59:35] Speaker 03:
Fair enough.

[00:59:36] Speaker 03:
He could have done this differently.

[00:59:38] Speaker 05:
He's not a lawyer.

[00:59:38] Speaker 05:
You wouldn't have told him that you're going to get enforced and they're going to fine you or anything when you've got 99% compliance and the one person who wasn't is actually getting vaccinated within hours.

[00:59:51] Speaker 03:
Right.

[00:59:51] Speaker 03:
Again, I'm not here to argue that this was the only way to go.

[00:59:55] Speaker 03:
Our position is that right, wrong, fair, unfair, there's no evidence that

[01:00:03] Speaker 03:
is in this record that would allow for the conclusion that Mr. Rosenblum as the decision maker harbored discriminatory animus.

[01:00:09] Speaker 03:
It's really just a timing case.

[01:00:11] Speaker 03:
And timing doesn't do it.

[01:00:14] Speaker 03:
It's also based on information that there's no evidence Rosenblum had about what the city was doing before they started firing people.

[01:00:22] Speaker 03:
The board asked the court to take judicial notice of something there was no evidence Rosenblum ever looked at or read.

[01:00:28] Speaker 03:
or had any idea that people were not, were being, I guess, put on leave or whatever the city was doing before February 14th, I believe it was, of 2022.

[01:00:38] Speaker 03:
So, you know, it's kind of inference upon inference upon inference, but it really doesn't get to his, you know, his animus and certainly Capola's conversation with Zapata doesn't get him there.

[01:00:51] Speaker 03:
And I think your honor was 100% correct about the protected nature

[01:00:55] Speaker 03:
Rosenblum's conversation with Coppola, which doesn't really get the board very far.

[01:01:01] Speaker 05:
Any other questions, Judge Rogers?

[01:01:03] Speaker 05:
No, thank you.

[01:01:05] Speaker 05:
Thank you.

[01:01:05] Speaker 03:
Thank you.

[01:01:06] Speaker 05:
Appreciate it.

[01:01:06] Speaker 05:
The case is submitted.