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Case number 24-1079 et al.

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Jones Lang LaSalle Americas, Inc.

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Petitioner versus National Labor Relations Board.

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Mr. Laminak for the petitioner.

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Mr. Seid for the respondent.

[00:00:14] Speaker 03:
Good morning, counsel.

[00:00:15] Speaker 03:
Good morning.

[00:00:16] Speaker 03:
Mr. Laminak, please proceed when you're ready.

[00:00:18] Speaker 03:
Thank you.

[00:00:21] Speaker 02:
May I please the court?

[00:00:22] Speaker 02:
Once again, the board is in court defending the actions of one of its agents in the conduct of an election.

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And once again, the board's defense is grounded in conflated and confusing standards that are devoid of any reasoned explanation and that failed to adequately protect employee free choice.

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It seems straightforward for a board agent conducting an election.

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Don't leave the ballot box unattended and unsealed.

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Don't leave blank ballots unprotected and don't

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leave the voting area during a polling session to find potential eligible voters.

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It seems especially straightforward where, as here, the polling periods were only 30 minutes long.

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So why did this misconduct occur?

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We don't know.

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And that's not a question for this court.

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The question for this court is whether the regional director whose decision the board adopted

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properly applied the correct legal standard or standards in evaluating JLL's objections and whether the regional director provided a reasoned explanation for the standards she purportedly applied.

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The regional director expressly recognized in her decision that there are multiple standards when board agent conduct is at issue.

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she recognized one standard where the conduct tends to destroy confidence in the election or could reasonably be interpreted as impugning the election standards and the other she recognized considers whether the conduct raises a reasonable doubt as to the fairness and validity of the election.

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She then acknowledges there are no absolute guidelines before going on to appear to apply the reasonable doubt standard with respect to

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harsh part of JLL's objections and then also recognizing that tends to destroy competence standard at least in a footnote she acknowledges may apply with respect to the objection concerning the board agent leaving the voting area.

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What's the difference between the two standards?

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The primary difference, Your Honor, between the two standards is the degree of prejudice or the degree of harm to which a party who's objecting must show.

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According to the regional director in some of the board's cases under the reasonable doubt standard, there must be more than speculation.

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In other words, just because misconduct occurred, that's not sufficient to overturn

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results of an election.

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It would be okay under that tends to destroy confidence standard.

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Yes, your honor.

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Going all the way back to all stole and some of the early cases decided by the board that specifically address misconduct by a board agent in connection with a ballot box or blank ballots.

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The board has consistently held in those cases that appearances everything.

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It's destroying the confidence in the standards that the board purports to uphold in conducting elections.

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So it's harder for you to win under the reasonable doubt standard.

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our position is it is a tougher standard if the regional director correctly applied the standards to show if you're going to speculate as to what happened, but even under a reasonable doubt standard, the actions of the board agent and wholly leaving the ballot box and blank ballots and then going and looking for eligible voters

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That alone that conduct alone is enough to demonstrate a reasonable doubt as to the fairness and validity of the election.

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There's, there's parts of your opening brief where it seems like you're, you're arguing for the reasonable doubt standard.

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Why shouldn't?

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Well, why did you do that?

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If it's a short and short, so the reasonable doubt standard we mentioned in our opening brief and we cited it as part of the standard of review, but throughout the opening brief and throughout early portions of this case, including in the request for review, which is the initial challenge, the regional directors decision and then in an expedited request for consideration to the board and

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in our opening brief, there is a focus on the regional director applying the wrong standard.

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And until this court issued GHG management after we found our opening brief, the this court's focus and interest in requiring the board to articulate and explain which standard applies to which objection and to provide that reason explanation

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Do you think GHG broke new ground or do you think it was just applying laws that already existed?

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I think GHG broke new ground in the sense that it is the first time in a appellate decision that I've reviewed with respect to board agent misconduct that it calls the board to task for failing to provide that reasoned explanation.

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So while that standard has always been there, provide a reasoned explanation.

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argument you're making about the NLRB insufficiently explaining why it applied different tests at different times in your case, but you can see that that argument is forfeited by not being in your opening brief if we conclude that GHG did not break new ground.

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I do not concede that at all.

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Your honor, throughout our brief again, we recognized and we argued both standards.

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We argued whatever you want to call the standard.

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And again, as this court has recognized, the board has not been clear at all on this issue.

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But however you want to describe the standard, it doesn't require us to have a proof that something untoward happened.

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The offer of proof demonstrated that the board agent left the blank ballot boxes

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left the blank, left the ballot box and left the blank ballots and then walked around.

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That alone is the evidence of the unfairness of the election.

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And for the board to suggest that that was a waiver issue is inconsequential here.

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Council, can I give you a different perspective and research?

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So I read it in your order of proof for the board

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It was unclear what standard you meant to have the board apply.

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You offered a couple.

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The regional director considered the couple that you recommended.

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The regional director applied both standards to both alleged unfair labor practices and found that you failed no matter what.

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That's the way I read what the regional director did.

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And then in your initial brief to us, you said material affected the results of the election is the test, no matter what you think this alleged intervening case says.

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You said that was the test, and the board certainly applied that.

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I don't know, in all honesty, I have no idea what you're talking about in your argument today.

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All the tests that you're talking about, the regional director considered,

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Whether you think it was a clean opinion, it's clean enough for me to understand what the regional director did.

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And you were not clear to the regional director in saying which standards should apply.

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And the regional director applied both standards to both alleged unfair labor practices and found that you had not made out any case.

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Respectfully honor.

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I don't believe that the regional director explained or articulated both standards and found that we did not satisfy both standards in the so if I can write it that way you would concede you lose right.

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I'm sorry if I can write it that way you will concede you lose right that the regional director gave consideration to both the standards that you raised.

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And you were completely unclear as to which one applied in your order of proof.

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That's what's a little strange in this case.

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You're self-righteously accusing the board of being confused, and your initial order of proof was confused as to what you meant to apply.

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But the thing that seemed important to me was the regional director replied on both.

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Whether or not you thought it was as well written as you would have liked, it was well written enough to make it clear that both of your alleged standards had been applied and that you would lose on both.

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And then your initial brief to us without regard to this

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alleged change in the law, which I don't really understand.

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You said material affected the results of the election.

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The board certainly applied that as standard.

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The regional director and the board applied that standard, which you stated to us in your opening brief, was the standard that should govern.

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Your Honor, we stated that it was the standard, a standard, reasonable doubt, but we've also... You said in your opening brief, I went back and looked this morning, I was trying to be sure,

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on page 11, materially affected the results of the election.

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That's the standard you said to this court should apply.

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Right.

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Then you thought you had something in August because a case came out from this court, and you thought you could raise an argument.

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Oh, they didn't fully explain what they intended to do.

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You said the standard that should be applied was this.

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The board did apply it.

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And they said you lose on it.

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Your Honor.

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GHG, the court, illustrated why the board must articulate the appropriate standard of consideration of board agent misconduct.

[00:10:33] Speaker 01:
There are an awful lot of cases, counsel, in this area and other agency cases where if an agency applies all of the alleged standards to all of the alleged illegal conduct and says you fail under all of them, that's enough.

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And that's what happened here.

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The regional director's decision acknowledged multiple tests and then cited cases in her decision as to prior board agent misconduct as it relates to ballot boxes.

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But again, in GHG, this court recognized that that's not enough.

[00:11:07] Speaker 01:
And for us to... No, Counselor, you're missing my point.

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If what the agency does is to say, okay, here are all the tests, now here's your claim.

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We're going to apply all of those tests to all of these facts

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And every time we apply it to all of your alleged ULPs, you lose.

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That's perfectly okay.

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You're in real trouble if the agency says, every test that you lay out here, we're going to apply to your alleged mistake and we're going to find you have no merits.

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But I don't agree that she did that.

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If she did that, the conduct itself, leaving the ballot box, leaving the blank ballots, walking around, that conduct itself raises a reasonable doubt.

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It also fits squarely with some of the prior board cases, which hold that the mere appearance alone cast doubt on the integrity of the election.

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Do you agree that the regional director, at least however you read the decision,

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made a determination that the alleged problems here did not materially affect the results of the election.

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I believe that she conflated and confused the standards and you think she made that determination.

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I think she their reading of the decision cause a person to say she she was reasonably she was determining however badly you think she wrote it.

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She was determined that

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This conduct did not materially affect the results of the election.

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Wasn't that her determination?

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That was certainly what her determination was.

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And that's your standard.

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And that's the standard you stated in the opening brief, and that's why you should lose.

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That's the standard you said to this court should be applied.

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I agree.

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And you acknowledge that the regional director applied that standard.

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But we didn't acknowledge that we lose under that standard either.

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No, I understand you're saying, notwithstanding that, we should still win.

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That's a different point.

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But you certainly acknowledge that standard.

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And you agree the regional director applied it.

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She applied the standard.

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But again, in light of GHG, she has to do more than that.

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So for example, you mentioned, well, no matter how poorly her decision was written or reasonable, that is precisely what GHG management says you can't do, board.

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You can't just cite a bunch of standards.

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You can't cite prior case law.

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and say, oh, this is different from that case.

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And so we're going to apply this.

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And here's my decision.

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You can't do that.

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That's what this court says she cannot do.

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And throughout our offer of proof, the request for review, and even in the opening brief, we relied on and argued that there must be an element of appearance at issue.

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And it's not enough to just say,

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Nothing happened, so what's the big deal?

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That's not appropriate.

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GHG.

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I think she did more than that.

[00:14:02] Speaker 03:
I'd like to have additional questions for you.

[00:14:03] Speaker 04:
No.

[00:14:04] Speaker 03:
Okay, we'll give you a little time for rebuttal.

[00:14:05] Speaker 03:
Thank you.

[00:14:06] Speaker 03:
You're from board council now.

[00:14:07] Speaker 03:
Thank you, Your Honor.

[00:14:09] Speaker 03:
Mr. Seid?

[00:14:24] Speaker 05:
Good morning, Your Honor.

[00:14:25] Speaker 05:
May it please the court, David Seid, for the Labor Board.

[00:14:29] Speaker 05:
Happy to discuss the particular merits with respect to each part of the company's objection, but if I could just go directly to the allegation that the board applied different standards to different parts of the objection.

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As Judge Edward indicates, the company not only admitted in its opening brief that reasonable doubt is a proper standard,

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And therefore has waived that claim and it's by trying to raise it for the first time the reply brief.

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In fact, its opening brief doesn't even mention the language of the supposed second standard or even cite to a case that contains such language.

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And then just also this court simply has no jurisdiction to consider it because it was obligated to have raised it to the board, which again,

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like its opening brief, it never did before the board, which is very briefly, even if this was somehow before the court, which it isn't.

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As Judge Edward indicates, the regional director's decision discussed the reasonable doubt standard, said there's some different language that is used at times, but then very specifically at page 40, says at bottom, the test is reasonable doubt.

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However, the judge then goes on, as Judge Edwards indicated at appendix page 41, the employer argues that the board agents above conduct impugn the integrity of the election and proceeds to find that it rejects that argument.

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And then at page 43, note 7, the judge proceeded in addressing the second part of the objection to cite to two cases, the Polymers case, which of course sets forth the reasonable doubt standard, as well as the Athro case, which does use tendency to destroy language.

[00:16:11] Speaker 05:
So the regional director

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clearly to the extent that anything other than reasonable data applied covered by including sites to both cases.

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And I would also just finally point out, unlike the GHG case, the company here has not shown that to the extent different language may be used at times, that the overall burden placed upon it to show a material effect on the election and to show more than

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and to show more specific evidence that that's not the ultimate responsibility, regardless of what language is used, nor has it made any argument that the result would be different.

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And again, as indicated, the regional director clearly, to the extent there is even arguably a different standard applied and looked at both parts of the language, not just reasonable doubt, but also a tendency to destroy.

[00:17:06] Speaker 03:
I thought of GHD, which I know a little bit about since you gave me the author.

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The predicate for the analysis was the board's implicit understanding in that case that the difference between the two standards actually could be outcome determinative.

[00:17:20] Speaker 05:
That is correct, Your Honor.

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So that was a situation, again, as I'm sure you're well aware, where there is alleged voter disenfranchisement.

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And the board applied a different standard, whether the voter disenfranchisement was based on something the board agent did,

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or versus something that someone else did, such as the postal service.

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Here, we are ultimately dealing only with conduct by the board agent.

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And again, the company, besides not even raising the issue about different standards of this court timely or properly, hasn't even argued that ultimately there would be any difference in whatever language is used or that the outcome would be different.

[00:18:03] Speaker 04:
Unless this court has any... One quick question.

[00:18:08] Speaker 04:
It's not appropriate for the NRB agent to go...

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Right?

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Like what happened here?

[00:18:15] Speaker 05:
Well, Your Honor, the board's case handling manual does not, which is a guideline to start with, does not contain any language that prohibits a board agent from checking to see if somebody is outside the door waiting to vote or seeking to vote.

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It would be inappropriate if, arguably, if the board agent compelled somebody to vote or went searching throughout the facility

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Seeking to try to find voters, but that there's no evidence that that's where it occurred here.

[00:18:46] Speaker 04:
I thought that the agent here at least was alleged to have encouraged them to vote, which is a step beyond.

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You know what you're saying is allow.

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Correct.

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So the allegation here, with respect to that objection, is that part of the objection is that the board agent compelled somebody to vote.

[00:19:08] Speaker 05:
And all the proper shows is that the board agent indicated that he was going to see if anyone was around to vote left very briefly.

[00:19:19] Speaker 04:
There's a gap between seeing if there's anyone left to vote, which, OK, maybe that's allowable.

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and compelling someone to vote, which is not allowable.

[00:19:30] Speaker 04:
Somewhere in between there is not compelling someone to vote, but encouraging them to vote.

[00:19:37] Speaker 04:
It seems like that's also improper.

[00:19:40] Speaker 05:
But here, I cannot emphasize enough, it was incumbent upon the employer in its offer of proof to present some sort of evidence that an employee was forced or compelled to vote.

[00:19:55] Speaker 05:
Here, not only did it fail to proffer such evidence.

[00:19:58] Speaker 04:
You keep saying forced or compelled, but I'm just trying to.

[00:20:01] Speaker 04:
It may well not matter for this case, but I'm just trying to.

[00:20:05] Speaker 04:
Get some clarity.

[00:20:07] Speaker 04:
It is improper for an NLRB agent to encourage someone to vote, correct?

[00:20:12] Speaker 05:
It would generally be improper based, again, on the particular facts of the case.

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And here, the evidence does indicate, at least for one employee, that that employee was actually simply waiting outside thinking that he had to wait outside to be called to come in to vote.

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So it was incumbent upon the company to have shown more, which it simply did not do here.

[00:20:33] Speaker 03:
And I just want to follow up on this just out of curiosity is encouraging somebody to vote.

[00:20:39] Speaker 03:
If there's undisputed evidence that what a board agent does is go out and tell people, look, you should know that the polls close in 15 minutes.

[00:20:50] Speaker 03:
If you want to vote, you should vote.

[00:20:52] Speaker 03:
Is that improper?

[00:20:54] Speaker 05:
Your honor, I'm simply not aware of the board ever addressing that type of back situation and and as this court knows the board does address cases on a kind of fact by case by case basis based on the facts.

[00:21:07] Speaker 05:
So it simply would not be appropriate for me to speculate.

[00:21:10] Speaker 05:
If that's all an agent did was to let somebody know that the

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polls are going to be closing as opposed to going out and actually telling somebody, hey, come with me.

[00:21:19] Speaker 05:
You have to vote.

[00:21:20] Speaker 05:
Right.

[00:21:21] Speaker 03:
The compelling one is easy.

[00:21:22] Speaker 03:
I guess on the something short of compelling, which is just notification that if you need to vote, you should vote or even encouraging or even saying, you know, you should vote.

[00:21:31] Speaker 03:
I'm not telling you which way to vote.

[00:21:32] Speaker 03:
I don't care which way you vote.

[00:21:34] Speaker 03:
You should just vote.

[00:21:35] Speaker 03:
Is that acknowledged?

[00:21:37] Speaker 05:
Yeah, I'm not aware.

[00:21:38] Speaker 05:
Certainly as

[00:21:40] Speaker 05:
And not trying to avoid the question.

[00:21:41] Speaker 05:
Certainly compelling is on one side of the equation.

[00:21:44] Speaker 05:
I'm not aware, honestly, in during elections if it's ever announced that the polls will be closing in 10 minutes or in 15 minutes to make sure that people who haven't voted yet have the opportunity to do so, particularly when polls may be open for three, four, five, six hours.

[00:21:58] Speaker 05:
I honestly do not know if announcements are made to that effect.

[00:22:02] Speaker 05:
And if they would be improper if they were.

[00:22:04] Speaker 05:
Correct, Your Honor.

[00:22:06] Speaker 01:
But I mean, the main point here is this is contextual.

[00:22:09] Speaker 01:
regional director is looking at the facts that have been offered to determine whether or not it's likely to have adversely affected the rights of the employees.

[00:22:19] Speaker 01:
And I think the finding here, as I understand it, is this nonsense.

[00:22:23] Speaker 01:
One person was just standing there waiting to vote, certainly was not encouraged to do anything.

[00:22:29] Speaker 01:
And all the board person responsibly doing was to let the person know it's available if you want.

[00:22:37] Speaker 01:
But in any event, it's a determination that is made based on the context presented.

[00:22:45] Speaker 01:
And I think the finding here was there was nothing to show that this failed any one of the tests that are applicable, right?

[00:22:52] Speaker 05:
That's correct.

[00:22:56] Speaker 05:
Okay.

[00:22:56] Speaker 05:
Thank you.

[00:22:57] Speaker 05:
I know the board would simply ask that the court enforce its order.

[00:23:00] Speaker 05:
Thank you, your honor.

[00:23:01] Speaker 03:
Thank you.

[00:23:06] Speaker 03:
Laminak will give you two minutes for a rebuttal.

[00:23:10] Speaker 03:
Thank you.

[00:23:11] Speaker 03:
Briefly, your honors.

[00:23:15] Speaker 02:
In its request for review, the employer specifically and expressly argued that the regional director found no evidence of harm, but this is not the appropriate standard.

[00:23:27] Speaker 02:
Long standing board precedent holds that an election must be set aside when there's even an appearance of an irregularity.

[00:23:35] Speaker 02:
In the request for expedited consideration, JLL argued that the regional director focused on the heightened standard for setting aside elections.

[00:23:44] Speaker 02:
Throughout the opening brief, despite recognizing the reasonable doubt standard as a standard for review of these board decisions, JLL relied heavily on Austal and Athbro and other cases in which harm need not be shown.

[00:24:02] Speaker 02:
But regardless, your honors,

[00:24:06] Speaker 02:
even under a reasonable doubt standard.

[00:24:09] Speaker 02:
JLL was deprived of a hearing.

[00:24:12] Speaker 02:
And it wasn't because there wasn't a proffer of evidence of misconduct that led to harm.

[00:24:17] Speaker 02:
There was an absolute proffer of evidence of misconduct in the form of the board agent.

[00:24:22] Speaker 02:
leaving the blank balance, leaving the ballot box unattended and walking around.

[00:24:28] Speaker 02:
That is enough evidence, at least in an offer of proof, to warrant a hearing to validate whether that was appropriate under a long line of board cases.

[00:24:39] Speaker 02:
Judge Walker.

[00:24:40] Speaker 04:
You don't allege that the two people

[00:24:45] Speaker 04:
the last two people to vote, you don't allege that they would have voted against the union had the election been conducted in a pristine manner, correct?

[00:24:55] Speaker 02:
That's a reasonable speculation.

[00:24:56] Speaker 02:
There was no offer of proof of that.

[00:24:58] Speaker 02:
That's a reasonable consequence of allowing a board agent to or not keeping a board agent within the polling area and not having others around to observe it.

[00:25:11] Speaker 04:
But there's no, I don't hear in your answer any evidence that

[00:25:15] Speaker 04:
those two voters would have voted against the.

[00:25:18] Speaker 04:
There is no evidence that was profit might have not been at all correct that maybe maybe is a fair inference.

[00:25:26] Speaker 04:
But if they had not voted at all the election result would have been the same right.

[00:25:31] Speaker 02:
Presuming that nothing untoward happened in the polling area when the word agent was out and the ballot boxes.

[00:25:38] Speaker 02:
ballot box was unsealed and blank ballots were left there again.

[00:25:41] Speaker 02:
It's it's speculation server there.

[00:25:43] Speaker 02:
I'm sorry where there were observers from both sides.

[00:25:45] Speaker 02:
There were observers from both sides there, one for the employer who was not an actual voting employee, but that's not sufficient to satisfy the standard of whether it's, uh, conduct that impugns the election standards

[00:26:04] Speaker 02:
and certainly enough evidence based on the board's prior precedence to warrant a hearing to develop this and then allow the regional director and ultimately the board to make a reasoned explanation for why it is deciding what it is decided.

[00:26:21] Speaker 02:
Thank you.

[00:26:22] Speaker 03:
Thank you, counsel.

[00:26:23] Speaker 03:
Thank you to both counsel to complete this case under submission.

[00:26:25] Speaker 02:
Thank you.