[00:00:01] Speaker 02:
Case number 24-1384, et al., Preferred Building Services, Inc., Petitioner v. National Labor Relations Board. Mr. Payfield for the petitioner, Mr. Heller for the respondent, Ms. Johnson for the respondent.

[00:00:16] Speaker 04:
Good afternoon. Thank you for your patience. Thank you. Good afternoon, Your Honors.

[00:00:25] Speaker 00:
May it please the court, Tyler Paetko for the petitioner on preferred building services. And I'd like to reserve three minutes for rebuttal, if I could. Thank you.

[00:00:37] Speaker 00:
So this appeal concerns the denial of constitutional due process rights.

[00:00:44] Speaker 00:
As the board and all parties agree, including the intervener, SEIU, if the picketers, they're sometimes called alleged discriminaties, if they were engaged in either recognitional picketing or secondary picketing, they lose the protection of the act.

[00:01:03] Speaker 00:
Everybody agrees.

[00:01:04] Speaker 04:
Is that a constitutional issue?

[00:01:07] Speaker 00:
Well, the exclusion of evidence is what I'm getting to is the constitutional issue. So in this case, that principle was violated very early, 11 years ago at the trial. I was there. The judge...

[00:01:22] Speaker 00:
You give trial estimates. It's just like a federal trial. Federal rules of evidence apply. About the sixth day, we made a motion. Hey, the general counsel has taken way more than a lot of time. Their time estimate was four days. And the next morning we showed up and the judge issued sua sponte in order striking all of my clients' affirmative defenses. Not only that, preventing my client from presenting any evidence into support of those affirmative defenses. The first board got a limited record.

[00:01:55] Speaker 00:
And they found even on that limited record, there was sufficient evidence of secondary picketing, that is, pressuring a neutral and meshing a neutral in the primary employer's dispute. That's unlawful. That's unprotected conduct. That was on an incomplete record. Unfortunately, that error, which is admitted, infected the proceedings all the way through, including in the Ninth Circuit, because in the Ninth Circuit, the Ninth Circuit looked at the Board's decision and said there was insufficient evidence of secondary motive, secondary motive by the union and the picketing.

[00:02:33] Speaker 00:
But they had an incomplete record at that point. In fact, the evidence that was excluded by the ALJ would have shown the secondary picketing motive because just like in the general maintenance case 1999 decision by the board there were trashing instant incidents at the millennium tower that's a skyscaper in san francisco it's actually sinking um but it has very prominent tenants uh one of the best quarterbacks ever joe montana they come in um on christmas eve and throw coal into the lobby.

[00:03:08] Speaker 00:
They fight with a security guard. The San Francisco Police Department is called. They show up and they fill out a report. There was injuries at the picket line. That's exactly the kind of evidence, Your Honors, that was at issue in general maintenance.

[00:03:21] Speaker 04:
Just to sort of move the camera forward a little bit, were we doing the board decision in round two here?

[00:03:30] Speaker 00:
Yes, understood.

[00:03:31] Speaker 04:
And that board decision said...

[00:03:34] Speaker 04:
We will take as given your evidence, even accepting your evidence.

[00:03:40] Speaker 04:
We will take it. It doesn't show secondary picketing because it occurred after the unfair labor practices at issue.

[00:03:53] Speaker 04:
So your evidence got in. You provided that evidence. It was considered by the board. We can see it, too. And they said...

[00:04:05] Speaker 00:
right let's talk rationale right understood good excellent question your honor so the ozark case this court taught us that an offer of proof is not a substitute for live testimony it's not cross-examination i'm i'm a trial lawyer i'm not really an appellate lawyer and i love a good fight i just don't like to fight with two hands tied behind my back which is what

[00:04:29] Speaker 04:
Your job is to make a proffer. Here's what we would have shown. Here's what we would have done. And then when you come we have sort of an equivalent rule here at the appellate level that you have to show prejudice. And your prejudice in your brief here is we wanted to put in the evidence about Millennium Tower and the trash throwing. And you don't say more that had we been allowed to cross-examine someone, we think they would have said, or you just said we wanted to be able to put in that evidence and the board considered it.

[00:05:02] Speaker 04:
So you're not prejudiced when they consider it and they say- It doesn't matter. It was long after the unfair labor practices. And no amount of cross-examination is going to change the calendar.

[00:05:14] Speaker 00:
I understand what the second board said. That's the reason for the appeal. So in that Ozark case, the court found an order barring a party from introducing relevant non-cumulative evidence is typically always prejudicial and reversible. And the same applies here.

[00:05:35] Speaker 04:
The court said- It's not relevant is the point. It's not relevant.

[00:05:39] Speaker 04:
if it post-states all of the unfair labor practices?

[00:05:45] Speaker 04:
Maybe that's where I'm not understanding things. How is it relevant if it post-states

[00:05:50] Speaker 00:
So the recognition of picketing 8B7, if you picket for more than 30 days without filing a petition, it's unlawful. It's unprotected. The millennium was 57 days after the picketing started, so it's relevant to that, 8B7.

[00:06:07] Speaker 04:
I didn't understand. I thought your argument about your due process argument was as to the secondary picketing.

[00:06:15] Speaker 00:
As to both, Your Honor, I mean, it's relevant to both.

[00:06:18] Speaker 04:
The secondary, it's relevant because, again, the picketing— Did you tell the board that we want this Millennium Tower thing to be considered as part of the recognitional picketing?

[00:06:28] Speaker 00:
We wanted a—and what we thought we would get is a remand to present evidence, live testimony. All the tenants, you know, that had coals thrown in their lobby and a security card assaulted on Christmas Eve— that's what general maintenance said is relevant we were we were prevented actively prevented my client's president bob squeary it's a family business you know this this um business he started he said started to testify after november 19 the union shut down the 12 more sites, they picket those sites as well.

[00:07:03] Speaker 00:
The judge cut them off. You can't go there. I'm not even going to let you go there. We were not allowed to present our evidence. That's why it's a due process issue.

[00:07:10] Speaker 04:
In your brief to this court, where do you argue your due process point about putting in evidence as the Millennium Incident as part of your argument about recognitional proof?

[00:07:26] Speaker 00:
Well, the reconditional picketing, it's relevant on its face.

[00:07:29] Speaker 04:
I'm sorry, I asked you a question about where in your brief I can find this. So... You said you've argued it as to both, and I just, I think I must have misunderstood something.

[00:07:41] Speaker 00:
Well, it's relevant on its face. It's more than 30 days.

[00:07:44] Speaker 04:
It needs to be raised in your brief on appeals.

[00:07:48] Speaker 00:
It is argued in our brief that it's relevant to both reconditional and... You can tell me on rebuttal, I won't make you... I'll find it. You can do that on rebuttal. So, again, this court in Ozark not too long ago, 2015, there are sometimes errors at trial that deprive a litigant of the opportunity to present its version of the case.

[00:08:11] Speaker 00:
They're also... they are also ordinarily reversible since there is no way of evaluating whether or not the evidence affected the judgment. When, for example, an appellant has been deprived of the opportunity to summon witnesses, the appellate court- You're not objecting to an ability to conduct discovery.

[00:08:33] Speaker 03:
You knew what the evidence was you wanted to put in, right?

[00:08:36] Speaker 00:
That's correct.

[00:08:37] Speaker 03:
And these- That was described in the proffer of evidence.

[00:08:40] Speaker 00:
We tried to describe it in the proffer. Some of it, you know, until we talked to the witnesses and cross-examined the picketers, it's not even known what that's going to be. For example, the timing of the picketing on Christmas Eve at Millennium, whether that was after hours, whether, you know, whether... But it's a little bit like summary judgment.

[00:09:01] Speaker 03:
Summary judgment is not a due process violation or, you know, even though you have to reduce evidence that, you know, in live form might be more differently expressive. You have to, a proffer is like, you have to say what it is that you wanted to put in. And to the extent that it wasn't fully descriptive, I don't think that's a reason to reverse.

[00:09:24] Speaker 00:
Well, we did describe the evidence.

[00:09:27] Speaker 03:
And the court said, yeah, OK, we see that evidence. We accept it. But if it were brought in, it wouldn't make a difference to us. So the refusal of the evidence, I guess, isn't really a due process problem. It relates to some other legal error that you'd have to identify.

[00:09:46] Speaker 00:
Well, again, I think it is legal error to deny the party an opportunity to call witnesses. And armed with the evidence that we should have had at trial to use cross-examination skills, Ozark says that as experienced trial lawyers know, when a hostile witness realizes that an examining counsel has information bearing on the answers to counsel's question, the witness tends to be more candid.

[00:10:12] Speaker 00:
Here, the company was deprived of this incentive for truthful and complete testimony.

[00:10:17] Speaker 04:
In other words... Are you aware, what's your best case that your hope, and I will take as given that you're an effective examiner and cross-examiner, your hope that through the crucible of cross-examination, something would be disclosed that would undermine either the secondary or existential thinking thing. It's just the hope that the process itself, you can't, you're not making a proffer as to that. Right.

[00:10:47] Speaker 04:
That itself is required by due process. So I'm going to make a legal error in any way. I don't understand that error, but require people to show how things are going to work out, not speculate as to process.

[00:10:59] Speaker 00:
Understood. So I would make an analogy to an employment discrimination case. No employer is going to say, hey, we discriminated, right? We discriminated based on age. We terminated all the people with higher salaries, which correlates to age. So we have this burden shifting pretext. Circumstantial evidence, the totality of evidence is considered. It's the same here. We're evaluating the unions, the picketers motives, their motives, their subjective motives. Why were you picketing? Well, they said, why we want a union that's recognition as member Kaplan found that was recognition in nature.

[00:11:35] Speaker 00:
But I wanted to point out that this issue of primary versus secondary is very nuanced. It's very, as the board has said, it's among the labor laws most intricate.

[00:11:50] Speaker 00:
It's based on the overall impression of what the parties were doing. And when you limit the evidence, it doesn't allow the fact finder to know what the totality of circumstances were.

[00:12:00] Speaker 04:
I guess on those circumstances, but general maintenance relied upon was actually the absence of the employer from the site. That's one of the factors, the absence of the employer from the site. And you've made no proffer that preferred building services was present.

[00:12:22] Speaker 04:
On December 24th, working in the building. And you don't need cross-examination for that. You represent preferred building. And so without having made that proffer that you actually met the prongs of the reconditional picketing issue, that information is entirely within your control.

[00:12:42] Speaker 00:
Is that not a problem? So general maintenance considers a number of factors to go into to evaluate, just like employer discrimination, circumstantial evidence. Did the employer have shifting reasons?

[00:12:55] Speaker 00:
Was there other evidence to suggest a bad motive?

[00:12:58] Speaker 04:
Just asking a question to this one. General maintenance, in case you've invoked, went off on the fact that there was no evidence that the employer was present at the site, one of the required prongs.

[00:13:08] Speaker 04:
for something to count as reconditional picketing.

[00:13:13] Speaker 04:
And your proffer nowhere mentions that preferred building was in fact present at the site on December 24th.

[00:13:21] Speaker 04:
when this picketing happened. You can't win without that showing, and you haven't made it.

[00:13:26] Speaker 00:
That's not what General Maiden says. It's one factor among many.

[00:13:30] Speaker 04:
Is it an optional one? Because a couple of factors are all about, it's the site, they're at the site, this is the time when they'd be at the site. That's pretty important.

[00:13:40] Speaker 00:
That's all more dry dock. And in general maintenance, what the court focused on was the trashing.

[00:13:47] Speaker 04:
No, no, I think the court, it's legal. I think this is what the board said here was that the employer wasn't there.

[00:13:57] Speaker 04:
You can't be, right? The employer has to be there. Yeah.

[00:14:00] Speaker 00:
Well, that's a factor for the dry more dryness. But there's many other factors that go into it, though. And concede preferred was there. That was their building. They were cleaning. That was one of their contracts.

[00:14:14] Speaker 04:
They had to be there at the time of the picket on December 24th.

[00:14:17] Speaker 00:
And let's assume they were. I'm conceding that they were.

[00:14:21] Speaker 04:
Not that they were or were not there.

[00:14:24] Speaker 00:
They were there.

[00:14:24] Speaker 04:
No, you don't get to concede that. You didn't proffer that.

[00:14:28] Speaker 00:
No, I'm saying for purposes of argument, we were there.

[00:14:31] Speaker 04:
No, not there. Let's assume they're not there.

[00:14:33] Speaker 00:
Well, then again, that is evidence of secondary pressure if the employer was not there, the primary employer was not there. So it's one of the factors.

[00:14:43] Speaker 04:
I mean, general maintenance... Sorry, I keep getting confused whether you're talking about the recognitional or secondary picketing issue. I thought you were on recognitional.

[00:14:51] Speaker 00:
I'm sorry, we're kind of skipping back and forth. But either one is a prohibited picketing, a prohibited objective.

[00:15:00] Speaker 04:
Which one was this picket?

[00:15:02] Speaker 00:
So there's a series of them, Your Honor.

[00:15:04] Speaker 04:
The one on December 24th at Millennium Tower.

[00:15:07] Speaker 00:
And that was all excluded. So October 29th, they started. No, no, no.

[00:15:11] Speaker 04:
I'm asking just from your proffer, the evidence you wanted to get in and the evidence you asked the board to do a remand for.

[00:15:17] Speaker 00:
Yeah, it was.

[00:15:18] Speaker 04:
The one on December 24th?

[00:15:19] Speaker 00:
It was, Christmas Eve. What time?

[00:15:23] Speaker 00:
I don't know the exact time it was.

[00:15:26] Speaker 04:
Morning, midday, afternoon, evening?

[00:15:28] Speaker 00:
I think it was evening.

[00:15:30] Speaker 04:
Evening, okay.

[00:15:31] Speaker 00:
Yeah, I know that there was a police report that we were prepared to introduce.

[00:15:36] Speaker 04:
But there was a security guard.

[00:15:37] Speaker 00:
Yeah, there was a security guard.

[00:15:39] Speaker 04:
I didn't know proper that there was anybody in the building Christmas Eve evening other than the security guard.

[00:15:48] Speaker 00:
Well, I mean, I don't think our burden on appeals identify every scrap of evidence that we would have mustered and presented if we had been given the opportunity. When the judge said you can't go there, I'm going to cut your witnesses off.

[00:16:03] Speaker 04:
I'm going with where the board went. OK, you went to the board. Board decides everything. Reviews de novo. It can decide anything. It can decide facts de novo. So when you go to the board, you know this. You want to go up and tell them, here's what we weren't allowed to put in. We got to make a proffer. And if your proffer didn't include the things that made your proffer, with the exclusion of that evidence legally relevant, then that's... Then they're fine to say you haven't shown any prejudicial error.

[00:16:35] Speaker 00:
We didn't have witness declarations, for example. We were given a limited time to prepare a brief proffer, which we did. And we mentioned the police report.

[00:16:45] Speaker 04:
I know, but a police report, what you didn't mention was anybody in the building.

[00:16:51] Speaker 00:
Well, the police were called because there was violence on the picket line.

[00:16:55] Speaker 04:
On a security guard, yes. That doesn't mean that there's...

[00:16:58] Speaker 04:
Other businesses in the building were there and were harassed. It's a 40-star Christmas Eve evening.

[00:17:05] Speaker 00:
Right. Right. So there's no question the police were gone. And you're not even going to know what's going on on the ground floor.

[00:17:11] Speaker 04:
I'm just getting to the point that you had an obligation to show things here. And you picked Millennium Towers. You picked the police report.

[00:17:21] Speaker 04:
But it doesn't seem to me that you were meeting sort of the legal prongs, and if you want to talk about secondary picketing or recognition picketing, that you would have needed for the exclusion of that evidence to be prejudicial. But I guess, and I take it your argument as well, we would get more information if allowed to go put it on before the ALJ. Is that your answer?

[00:17:44] Speaker 00:
In part. I mean, we would be allowed to cross-examine the picketers, for example, which we were prevented from. The evidence shows at Millennium they threw coal into a residential building lobby at members of the building security team, causing physical injuries, resulting in a police report.

[00:18:05] Speaker 00:
The ALJ said that was not relevant. It's not, I'm going to exclude it. It was only by luck that we got that into the record because the judge excluded everything. We did include that in our offer.

[00:18:15] Speaker 04:
By luck, it was you doing your job for the board, right?

[00:18:18] Speaker 00:
Well, we did include that in our offer of proof. There was also testimony by the union that they visited about 20 sites where Preferred had cleaning contracts. That's at 1J80 and 1J102.

[00:18:34] Speaker 00:
Mr. Squirey, the president, testified that SEI targeted at least a dozen other sites after November 19, and that preferred lost contracts as a result of the picketing. It was coercive in nature.

[00:18:50] Speaker 00:
We didn't, you know, to your point, Your Honor, we didn't go through and do pages and pages of what we would eventually introduce if given the opportunity.

[00:18:59] Speaker 00:
The first board's We made it so that we didn't have to go there. They decided just on the limited record there was sufficient evidence. And honestly, we thought we would at least have a hearing to be able to present the evidence that we were excluded to cross-examine their witnesses armed with this evidence that we could use, clearly relevant as the board found.

[00:19:25] Speaker 00:
And it was just the error infected the entire proceeding.

[00:19:30] Speaker 04:
for a bit of your time. Do you have any questions? Any question?

[00:19:35] Speaker 04:
We'll give you some time for rebuttal.

[00:19:37] Speaker 00:
Okay, thank you, Your Honor.

[00:19:46] Speaker 01:
Good afternoon. May it please the Court, Joel Heller for the National Labor Relations Board.

[00:19:51] Speaker 01:
Preferred does not dispute that it discharged, threatened, interrogated, and surveilled employees who were picketing to improve their working conditions. And substantial evidence supports the board's finding that Preferred failed to make out its affirmative defense that those employees were engaged in either secondary or recognitional picketing.

[00:20:12] Speaker 01:
So Preferred's primary argument on appeal is an evidentiary one.

[00:20:17] Speaker 01:
But there's two problems for Preferred.

[00:20:21] Speaker 01:
in its argument that it should have had the opportunity to introduce additional evidence. As the court has been over already, one is that the board already considered the evidence, considered whether that evidence would have demonstrated a secondary impact and determined that it would not. So there's no prejudice. The second problem is that, as we were discussing before, that evidence is not relevant because it only went to the December 24th demonstration at Millennium Towers. As you were saying, Judge Millett, that December 24th post-dated all of the unfair labor practices in this case.

[00:20:52] Speaker 01:
So even if preferred had been able to show a secondary object on December 24th that would not serve as an affirmative defense to actions it had already taken by that point.

[00:21:03] Speaker 01:
And even if the December 24th demonstration were relevant to the reckoning, or sorry, even if preferred's argument is that the December 24th, it would introduce evidence about the December 24th demonstration vis-a-vis its recognitional object defense, it's the same problem. Because the board already found that there is no evidence of a recognitional purpose, and that's a substantial evidence question. At any of the demonstrations, in its offer of proof, preferred said that the 12-24 demonstration had the same flyers with a similar message as the October and the November demonstrations.

[00:21:44] Speaker 01:
That's at JA 1969 through 70.

[00:21:48] Speaker 01:
And the Ninth Circuit already determined that those, sorry, that's the secondary versus primary. The Ninth Circuit already determined that those flyers were primary in nature. And the board, looking at the evidence in the record, also determined that there was no recognition of purpose. And so there was no recognition of purpose evidenced in these flyers, in the messages that were at October and November. Therefore, since it was the same in December, there was no recognition of purpose in December as well.

[00:22:18] Speaker 04:
Tell you this, we want a union, not evidence of recognition. Right.

[00:22:25] Speaker 04:
Maybe this was organizational picketing?

[00:22:29] Speaker 01:
Sure. So two things. One is that The chant, well, that wasn't the completion. That wasn't the complete chant. It said, we want a union, not corruption.

[00:22:38] Speaker 04:
We want the union. Was it the union?

[00:22:41] Speaker 04:
Maybe it was a, whatever. I don't remember if it was a union. Right.

[00:22:45] Speaker 01:
Not corruption. So it's, yeah. So you look at the context. You look at the totality of the circumstances. What else was going on at these demonstrations? So yes, in that one chant, there was reference to a union. There were other chants that didn't reference a union.

[00:23:00] Speaker 04:
Lots of S-E-I-U.

[00:23:02] Speaker 01:
Some of the signs had SEIU on them. Some of them didn't. You had the flyers, the hand bills that were passed out, those did not mention unions. So, right, there was some indication, there were some references to unions, but not everything was referencing unions. And even the references to unions, just because there is a reference or just because a union is on the scene does not necessarily make it recognition in nature.

[00:23:27] Speaker 01:
Again, looking at the totality of the circumstances, at the context, the focus of these demonstrations were on the working conditions at preferred contracted buildings, the sexual harassment, the hours, the wages, those kind of things. And the union was helping them out. Local 87 was helping these employees. address those issues. And that doesn't, however, make it an unlawful recognition of purpose. Because sometimes we say these words, recognition of purpose, organizational purpose, as shorthand. But look to the text of 8 and what it says.

[00:23:59] Speaker 01:
What is improper recognition of organizational purpose is when the picketing has the object of forcing or requiring an employer to recognize the union, or forcing or requiring the employees to accept a union. So a reference to a union or even saying some of the employees saying they want a union doesn't get to that level of forcing or requiring recognition of that union by employer by an employer or forcing or requiring other employees to join up with that union.

[00:24:30] Speaker 01:
And but so those were kind of Hitting the point where it is, but to make a bigger point about the we want a union line, sure, preferred has another way to interpret that evidence. They think it shows a recognition of purpose. But ultimately, just because preferred has its own interpretation of the facts, isn't enough to displace a board decision on substantial evidence review.

[00:24:54] Speaker 04:
The question, I guess, for what the object of picketing is was, is it an objective or subjective test?

[00:25:05] Speaker 01:
Right. I think you're looking at objective factors because, especially on the recognition point, you're looking at it from the perspective, I would say, of what an employer or other employees would think because that's that kind of forcing and requiring.

[00:25:24] Speaker 01:
Right, kind of the impact on those other parties. And so you're looking at what was said out loud, what was broadcast to those, to the employers or to other employees. And that is more objective in nature, I would say.

[00:25:37] Speaker 01:
And so the other point on that is, right, so these...

[00:25:42] Speaker 04:
So then is it just a legal question or is it a factual question what the object is?

[00:25:47] Speaker 01:
It has been treated as a factual question.

[00:25:49] Speaker 04:
Even if it's an objective test?

[00:25:51] Speaker 01:
Right.

[00:25:51] Speaker 04:
And what sort of a reasonable employee slash employee would think?

[00:25:55] Speaker 01:
I think so. I think this court has certainly applied the substantial evidence standard of review.

[00:26:03] Speaker 01:
I don't remember if offhand it specifically said it's a question of fact, but it has said substantial evidence review applies here.

[00:26:10] Speaker 03:
Other courts- It has to be a fact question if it's a substantial evidence question, right?

[00:26:14] Speaker 01:
Yes, a question of fact.

[00:26:16] Speaker 03:
What would a reasonable person in the context think? And you're looking, you're asking the jurors to make, I mean, reasonableness sometimes can be legal, sometimes factual. And you're saying here it's factual.

[00:26:29] Speaker 01:
Right. That is how this court has ended.

[00:26:31] Speaker 03:
A reasonable employer here feel like they were being...

[00:26:35] Speaker 03:
pressured into having a union, would a reasonable body of co-employees feel like they were being pressured to ask for a union?

[00:26:42] Speaker 01:
I think that's right. I don't think it's about kind of what in its heart of heart Local 87 wants to happen. Because, again, looking at the language in 8B7, what's talking about forcing or requiring, it's not talking about does the union hope that these unions will, sorry, that these employees will join up with the union at some point.

[00:27:01] Speaker 01:
One other point I would say on the evidentiary point, which was the bulk of preferred's argument here. So we've been over why the evidence in their proffer is insufficient. They say, well, we would have, they speculate that there would have been some additional evidence that might have come in on cross-examination. But the court's standard when reviewing these evidentiary issues is is whether it clearly appears that the new evidence would compel or persuade to a contrary result. And the only way the court can answer that question is if it knows or at least has some indication of what that additional evidence would be.

[00:27:33] Speaker 01:
And Preferred doesn't offer any of that. That's why in Salem Hospital Court- They're hampered here.

[00:27:37] Speaker 04:
I mean, the upfront decision of the ALJ a couple of rounds ago to just flat out exclude their affirmative defenses. Is that defensible?

[00:27:49] Speaker 01:
So I know that the ALJ did make that point about excluding evidence, but of course the ALJ also did address their defense on the merits. So it's not that the ALJ entirely excluded everything that has to do with these affirmative defenses.

[00:28:05] Speaker 04:
Well, it's kind of insane. I'm not going to let you put your evidence in, but now I'm going to address your claims.

[00:28:11] Speaker 01:
Right. I'll admit that that was a little odd. Odd?

[00:28:14] Speaker 04:
Is it right? Is it wrong? Are you defending that?

[00:28:17] Speaker 01:
I'm not defending here the ALJ's initial decision for the reason I think you said, because what's on review now is the board's decision. And the board decision saying in response to their request to reopen the record was to say, well, we've looked at it. So you could essentially say, even if the ALJ- Fruit of the poisonous tree here.

[00:28:32] Speaker 04:
It's like, all right, we told you sort of a grand briefing level what we wanted to get in. But because of this upfront error- Mm-hmm.

[00:28:44] Speaker 04:
It just left the record bare. And we can't obviously create on round two before the board every jot and tittle of what are allowing us to put on the evidence of our affirmative defenses would have exposed.

[00:29:00] Speaker 01:
Sure. It's not every jot and tittle, but they have to do something. And what all of they specifically identified is this December 24th incident at Millennium Towers. And we've already talked about that. They haven't said whatever else they want to put in. And in the Salem Hospital Corp, the NLRB case that they cite in their reply brief, this court said that when an employer or a party fails to provide specific evidence of potential witnesses' testimony, we cannot determine that the excluded evidence was either relevant or material, much less how that testimony could persuade to a contrary result.

[00:29:31] Speaker 01:
So the preferred hasn't given the court anything by which to make the determination. that there has been an abuse of discretion, that there would have been a different result had they been able to put in additional evidence post-remand.

[00:29:45] Speaker 04:
On the secondary picketing. Yes.

[00:29:51] Speaker 04:
If it was a matter of law that, since it post-dated all of the unfair labor practices, December 24th, the evidence by December 24th, if that were the basis for pulling the board's decision...

[00:30:07] Speaker 04:
Could they then raise this issue again at compliance proceedings?

[00:30:11] Speaker 04:
Well, at that... Secondary picketing, I'd say, is sort of an unclean hands.

[00:30:20] Speaker 04:
And same question for recognition of picketing.

[00:30:22] Speaker 01:
Right. So it wouldn't go to the liability question at all. The question of whether they could bring it up on compliance is whether, like, the... Pretty equitable-ish proceeding if they just sort of said unclean hands.

[00:30:35] Speaker 01:
But so what what I guess what would they be making that argument in purpose of that? There was just cutting off of back pay or something like that. I mean, that that would be a question.

[00:30:45] Speaker 04:
Want to hire them after they threw coal at security officials on Christmas Eve.

[00:30:49] Speaker 04:
You can't make us hire people who violate criminal laws. I mean, I don't want to make their arguments for them. Right. Probably got way more sophisticated ones than I'm thinking. I'm just asking. I just don't. I'm trying to understand how this liability and compliance proceeding things.

[00:31:03] Speaker 05:
Sure.

[00:31:04] Speaker 04:
Because there's different ways of addressing this matter. They could show later.

[00:31:08] Speaker 01:
Yes. I think if if the court.

[00:31:12] Speaker 01:
will solely on the timing issue, if they say that December 24, we're not going to even look about whether that was secondary or whatever. We're just going to say it was too late. That is the sole basis for the court's decision. Then I think there might be some questions open on compliance proceeding as to whether that subsequent post-discharge actions has some impact on the remedy. Certainly not saying at this point that they would be successful, but they could raise those arguments.

[00:31:42] Speaker 01:
So same with the recognition of picketing. Because the recognition of picketing, if I could just explain this, that also has a timing problem for them because The recognition of picketing is only unlawful if it extends more than 30 days. And most of the unfair labor practices in this case occurred before the end of that 30-day period. So the 30 days started on October 29. Most of the unfair labor practices occurred within that initial 30-day period. So even if it was recognition of picketing, and I'll get to that, and I will get to that.

[00:32:12] Speaker 01:
But that's my first point. So even if it was recognition in that first 30 days, it's still lawful. So that was most. As to the rest of the unfair labor practices that occurred after the 30 days, they still occurred before there was any additional demonstrations. So after November 17th, I believe it was, the next demonstration was on December the 18th. So that was the first demonstration. picketing that was outside of the 30-day period. But all of the unfair labor practices had occurred before December the 18th.

[00:32:44] Speaker 01:
So even if December 18th, December 24th was recognitional outside of the 30 days, all of the unfair labor practices had already happened there. So they faced the same timing issue as they do with their secondary.

[00:32:56] Speaker 04:
STEPHANIE DESMOND- How about the ones that were outside that initial 30-day period, the protected period?

[00:33:07] Speaker 04:
were some that were out but i thought they were terminations that were because of the contracts canceled which were canceled within the projected 30-day period that's true and so if you if you take it in that way then everything occurred right or wrong way to take it i don't think it matters because the timing is bad for them either way right just because i asked the question is that the right way or the wrong way to take it so i guess you could say that the What does the law say about that?

[00:33:39] Speaker 04:
If you terminate a contract in this period, but then you don't effectuate the terminations of the individuals, assume it's a clean, clear decision that was only because of a contract cancellation. When does that mean the unfair labor, the relevant unfair labor practice happened?

[00:33:57] Speaker 01:
That I don't know.

[00:33:59] Speaker 01:
Not an issue that has been briefed. It was not raised by the other side. So I don't have an answer for you on that point. But again, I think it doesn't actually matter under the facts of this case. Because either if you say, well, that happened when the contract was canceled in mid-November, or it happened when they were actually discharged in December 14th and 15th, it was still before any purportedly unlawful recognition or picketing.

[00:34:27] Speaker 01:
So because the unfair labor practices are on their merits, undisputed, and because the affirmative defenses fail, the court should enforce the court's order.

[00:34:36] Speaker 04:
Any questions?

[00:34:41] Speaker 03:
I don't think so. Any questions? No.

[00:34:45] Speaker 04:
Thank you very much, counsel.

[00:34:48] Speaker 04:
OK. So we'll hear from the intervener now.

[00:34:56] Speaker 06:
May it please support Bryn Johnson for intervener, SEIU Local 87. The eight workers who were discharged have now been waiting more than 11 years for their remedy. Preferred's appeal doesn't contest the board's finding that those workers were fired for their participation in the protests and in order to chill further protests. The board was right not to reopen the record because the only evidence that preferred seeks to put in is irrelevant to the remaining questions in the case. Because that evidence that preferred proffered in its proffer to the board was only about the Christmas Eve protest.

[00:35:30] Speaker 03:
Why were the workers chanting, we want a union, if not for a recognitional purpose?

[00:35:36] Speaker 06:
Yes, the workers were chanting, we want a union, not corruption. And they were comparing the help that they had received from the union with the exploitation and the corruption that they felt like they were facing from the employer, as evidenced by the rest of the signs and the flyers in that case that were all expressing the workers' concerns with their working conditions.

[00:36:01] Speaker 03:
And on the publicity proviso issue, if the workers were informing the public they lacked a union, Then is the protest automatically recognitional subject to the provisor, or can we still conclude the protest fell outside of 8B7?

[00:36:16] Speaker 06:
CHRISTINE LAGORIO- No, you could still decide that the protest fell outside of 8B7, because we want a union. While accurately informing the public that the workers do not have a union doesn't necessarily indicate that the purpose of the protest was to force or coerce the employer in order to recognize a union for the workers.

[00:36:38] Speaker 06:
There was none of the traditional evidence of a recognition object present in this case. The union never made a demand for recognition or tendered a contract. Workers weren't asked to join the union.

[00:36:48] Speaker 04:
All they did was walk around with signs that says, we want the union. And that's all they chanted is, we want the union. That's the only thing happening.

[00:36:58] Speaker 04:
Would your position still be that it wasn't organizational or recognitional?

[00:37:06] Speaker 06:
If all the workers did was have the sign saying, we want a union, and chanted, we want a union, then I think it could be a reasonable conclusion that they did have a recognitional object.

[00:37:15] Speaker 04:
However, that is... You don't have to have those other formal processes for it to be... You talked about there's no petitions filed, none of those things.

[00:37:23] Speaker 04:
So you don't have to have those things, just the content of the demonstration itself to make it a recognition object.

[00:37:31] Speaker 06:
Yes, that could be a finding that an ALJ could make that would be reasonable. However, that's absolutely not the evidence that is in the record here, in that the workers did not have any signs asking for a union. Their flyers and signs didn't mention asking for a union at all. And they weren't just chanting, we want a union.

[00:37:47] Speaker 04:
Union's name on a lot of them.

[00:37:48] Speaker 06:
The union name was on there because the union was present. But it's well established that the mere fact that a union is present at a picket does not make it an organizational picket. Otherwise, the union could never have pickets. And employers, they don't represent workers. But getting back to the chants, the workers weren't just chanting, we want a union. They were chanting, we want a union, not corruption. and many other chants as well that were all focused on their labor dispute with preferred, including that preferred buildings managers exploit workers. We want justice. When do we want it? Now. So the overall context, and this is a totality of the circumstances consideration, shows that the workers' purpose of their protest was to highlight their labor dispute with preferred.

[00:38:28] Speaker 06:
And the board reasonably found that. And because that's a reasonable interpretation of the evidence, that's all the court needs to decide this appeal, even if there are other reasonable interpretations, Judge Millard.

[00:38:38] Speaker 03:
Why wouldn't the easiest way to sort of integrate all of the communications to say they were opposing these various unfair labor practices and they wanted a union because they had not been successfully able, on their own, by rebuffing the advances of the supervisor and the like to stop the practices. And it just seems like a natural way to read it is, yeah, we're opposed to this and this and this concrete thing. We want more money. We don't want to be harassed.

[00:39:10] Speaker 03:
And to that end, we want a union.

[00:39:15] Speaker 06:
No, I don't think that would be the correct conclusion to draw in this case because the NLRB expressly found and there was testimony in the record by the workers and the union president about what the communications between them were. There was no testimony that the workers asked to join the union or asked the union to represent them or that the union indicated that it was trying to represent the workers. The NLRB found in page 12 at the end of footnote 19 that there was no evidence that the employees were seeking to be were seeking recognition or to be organized, or even that the union was attempt to organize them at that time.

[00:39:56] Speaker 06:
I believe I've used my three minutes unless there are any other questions.

[00:39:59] Speaker 04:
Any questions? Thank you very much, Counsel. And we'll give you, Mr. Sorry.

[00:40:08] Speaker 00:
Pitko. Tough last name.

[00:40:10] Speaker 04:
Thank you. Mine always gets mispronounced. Okay, I apologize. No problem. We'll give you two minutes.

[00:40:15] Speaker 00:
Thank you. So just to start because it's an easy answer. The statute answers your question whether you can go back and the prior picketing is insulated. If it's recognition of the failure to file a petition after 30 days renders the entire period unlawful unprotected. So it goes back to the day that they started is pretty confusing this language.

[00:40:38] Speaker 04:
What language do you think 4929 so explicitly?

[00:40:42] Speaker 00:
Yeah, it's in our brief at page 8 in our reply.

[00:40:45] Speaker 04:
Let's look at the statute.

[00:40:47] Speaker 00:
29 U.S.C. Section 158B7.

[00:40:49] Speaker 04:
All right, so where's the language there that says it officiates the whole thing?

[00:41:00] Speaker 00:
The entire period of picketing.

[00:41:03] Speaker 04:
Where does it say that? What language exactly? Can you read the statutory language?

[00:41:11] Speaker 04:
158B7.

[00:41:14] Speaker 04:
Sorry, this is recognition.

[00:41:16] Speaker 04:
B7? Yeah, so B7. What language are you relying on that says that it vitiates the entire period?

[00:41:29] Speaker 00:
That's my reading of it. You don't get a pass.

[00:41:36] Speaker 04:
Where such picketing has been conducted without a petition under Section 159C of this title being filed... within a reasonable period not to exceed 30 days from the commencement of such picketing.

[00:41:49] Speaker 04:
The difficulty there is you said it textually, the statute initiated it.

[00:41:55] Speaker 04:
I find the language somewhat ambiguous in that regard.

[00:41:57] Speaker 00:
If I could, I could submit another brief on it. It's been established law that if the picketing is recognitional, it goes back to the original date. What established? Where's that established?

[00:42:11] Speaker 00:
Well, it's in the statute.

[00:42:14] Speaker 04:
I'm asking in the statute. So the statutory text here does not say that it officiates anything that went before, as I read it.

[00:42:23] Speaker 00:
Failure to file petition after 30 days renders the entire period of picketing unprotected.

[00:42:28] Speaker 04:
Is that in the statute? I'm sorry, I'm not seeing that.

[00:42:31] Speaker 00:
What's your statute? Did you find it?

[00:42:37] Speaker 04:
Do you have a site?

[00:42:38] Speaker 00:
Yeah, I'm citing our brief, which is a paraphrase.

[00:42:43] Speaker 04:
That's the problem with a paraphrase. I'm looking at the statute itself now. Do you have a copy of the statute with you?

[00:42:50] Speaker 03:
It's in the red brief at Romanette 1 and 2 at the end, the addendum.

[00:43:07] Speaker 00:
Thank you, Your Honor. So, yeah, the start of this section, unfair labor practice by a labor organization, that's in B. And then it lists these things. It's an unfair labor practice to do any of these things.

[00:43:19] Speaker 03:
Can you go to number seven? A cause to be picketed at an employer where the object is forcing or requiring the employer to recognize a bargain with a labor organization.

[00:43:28] Speaker 00:
So that... Unless...

[00:43:35] Speaker 03:
Labor organization is currently certified as a representative.

[00:43:38] Speaker 04:
It was unlawful. I think you want to come down to see where such picketing has been conducted without a petition of this title being filed within a reasonable period of time, not to exceed 30 days from the commencement of such picketing.

[00:43:54] Speaker 00:
Right. It doesn't, I guess a better way to say it, it doesn't provide an exception that if your original picketing was lawful and your later picketing is unlawful, the You know, there's no violation. What this statute says, you can't engage in picketing for a recognitional object or a secondary object, putting pressure on a radio station, the tenants in the building that have nothing to do with the dispute, and then meshing them in the dispute.

[00:44:26] Speaker 00:
That's the secondary boycott. picketing for prohibition. But either way, if it's secondary or recognition, these are tough issues. That's the point of developing a full record. On an incomplete record without adequate cost cross-examination, that's what Ozark said. The offer of proof is not a substitute for live testimony and cross-examination. And just on the organizational, you know, we want a union.

[00:44:56] Speaker 00:
There couldn't be anything more recognition than that.

[00:44:59] Speaker 00:
The president of the union, Mr. Miranda, Olga Miranda said...

[00:45:06] Speaker 00:
No, I do agree, but that's a big one. We want a union. How could that be anything? As Member Kaplan said, Chair Kaplan said, that is the epitome of a recognitional cry. It's an organizing cry. We want a union. How could you say it any more clearer than that?

[00:45:21] Speaker 04:
How many have to say it how many times?

[00:45:25] Speaker 00:
I don't think the law says, but the president.

[00:45:28] Speaker 04:
Well, I mean, I think you would agree if they were out there for a couple hours and. You can watch the video.

[00:45:34] Speaker 00:
They were chanting.

[00:45:35] Speaker 04:
I'm asking a legal question here because you said you can't. That's the epitome. You can't get any more important than that. But if one person said it once in a two-hour picket and no one else did, that wouldn't matter so much, right?

[00:45:48] Speaker 00:
Yeah, I would agree with that. They were chanting it throughout, and it's on video. It's submitted as in evidence in the record.

[00:45:55] Speaker 04:
It wasn't everybody.

[00:45:57] Speaker 00:
Well, the alleged discriminaties, the picketers, were chanting that. We want a union.

[00:46:03] Speaker 04:
All of them said that? All of them are on video saying that?

[00:46:07] Speaker 00:
All of them on the video that are making the chant. It's multiple people. I didn't go through and say, oh, did this person sit out? I mean, it was a group demonstration, noisy. They were all chanting the same thing. We want a union. We want a union. We want to be recognized. Not corruption. Right, right. And that doesn't change it. I mean, we want our union. The president of the union said they're organizing our workers that we're organizing, our members.

[00:46:35] Speaker 04:
This is a fact question, I think. Do you dispute that this is a fact question?

[00:46:40] Speaker 04:
We asked whether the object of the picketing is a fact question. Well, I'm saying- I'm sorry, just do you agree that it's a fact question, what the object of the picketing was?

[00:46:48] Speaker 00:
Absolutely. I do agree with that. Right.

[00:46:50] Speaker 04:
I just think- The reality of the circumstance is a fact question. So what you have to show is not that one could watch that video and come to that exact conclusion, but that it was clear error or the equivalent of that super deferential review of fact finding by this court.

[00:47:06] Speaker 00:
I understand your point, Your Honor. But I'm not here to retry the case, to re-argue the machinations of the secondary. The point is due process. Give me a chance. Let me call my witnesses. Let me bring in my evidence. And right, the totality of evidence is all relevant.

[00:47:25] Speaker 00:
including, you know, what Member Kaplan then chair said, only the picketers would understand the gravamen of what they were truly communicating, not the public. They would not be apparent to the public that the employees were not represented by the union. That's why the publicity proviso does not apply here. And just one Other thing I wanted to mention that's in the record that I forgot to mention in terms of what evidence would be provided, there's also evidence in the first board decision, footnotes 311 and 12, the judge... But that decision's been vacated?

[00:48:09] Speaker 00:
Right, this is evidence that was excluded. The judge refused to admit evidence regarding, among other things, why the leaflets were drafted as they were and whether the picketers blocked access to the building. In other words, evidence would have shown secondary activity, coercive activity towards the tenants. And that's what the Ninth Circuit said when it talked about general maintenance. It said the reaction of the tenants was relevant evidence because the union directly targeted the building's tenants and owners with coercive activity.

[00:48:43] Speaker 00:
And here, in contrast, they're talking about the preferred case. The union never engaged in coercive conduct targeting Harvest or any of the building's tenants. That's what they did at Millennium.

[00:48:56] Speaker 00:
It worked in the first building. Let's go to the next one and let's ramp it up. Let's commit violence. I appreciate the time, Your Honor.

[00:49:04] Speaker 04:
All right. Any more questions? All right. Thank you to both counsel. The case is submitted.