[00:00:00] Speaker 04:
Case number 24-1218, Thomas Henry McLam, petitioner versus National Labor Relations Board.

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

[00:00:08] Speaker 04:
Hazelwood for the petitioner, Mr. Soder for the respondents.

[00:00:12] Speaker 00:
Hazelwood, good morning.

[00:00:13] Speaker 00:
Good morning.

[00:00:18] Speaker 03:
May it please the court, Alyssa Hazelwood for petitioner, Thomas Henry McLam.

[00:00:23] Speaker 03:
This case deals with two unlawful union actions.

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First, a union steward physically attacked a dissident at work while he campaigned for union office.

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And second, another union steward demanded that dissidents termination for the incident.

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The board created a narrative of events unsupported by the record to absolve the union for these actions.

[00:00:45] Speaker 03:
Substantial evidence does not support the board's decision.

[00:00:48] Speaker 03:
First, a union steward Boone physically assaulted McClam in the workplace, directly in the midst of a heated election campaign.

[00:00:57] Speaker 00:
In spite of this, the board claims that, at one point, while Boone, McClam, and others- Excuse me, you need to start at the beginning, because the record I read was McClam verbally abused her.

[00:01:15] Speaker 00:
He started it.

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Then she slapped him.

[00:01:19] Speaker 00:
He got her fired.

[00:01:21] Speaker 00:
He still has his job.

[00:01:23] Speaker 00:
If he gets a ULP claim, how does that promote industrial peace?

[00:01:30] Speaker 03:
It promotes industrial peace because it protects Section 7 activity.

[00:01:34] Speaker 03:
Section 7 activity includes dissident union activity.

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He was a longtime opponent of current union leadership.

[00:01:44] Speaker 00:
What was the nexus between what he said about her and anything having to do with the union?

[00:01:51] Speaker 03:
So first, the record doesn't establish that he said these things about her.

[00:01:55] Speaker 03:
The record established that he said that some people had virginity.

[00:02:01] Speaker 01:
Let's assume we disagree with you about that.

[00:02:03] Speaker 01:
Can you answer Judge Henderson's question?

[00:02:04] Speaker 01:
Assume we think he was talking about her.

[00:02:07] Speaker 03:
Even if he was talking about her, she was still a union steward actively campaigning for his opponent.

[00:02:14] Speaker 03:
The record establishes, and the board concedes that they were campaigning throughout the incident.

[00:02:21] Speaker 03:
They were campaigning at the beginning.

[00:02:23] Speaker 03:
The board says that the Michelin pivoted to this personal attack on Boone, which is unsupported by the record.

[00:02:30] Speaker 03:
In reality, especially on the record, Paige won't.

[00:02:33] Speaker 04:
But how is it not supported by the record when what was said was so personal in nature?

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It was about her children and her license plates.

[00:02:42] Speaker 04:
That is not related to union activity.

[00:02:45] Speaker 03:
So the record is replete with evidence that he continued throughout the day to say, I'm going to let it all out.

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I'm going to let it all out on Tuesday, which the board concedes is related to his campaign about union financial mismanagement.

[00:03:05] Speaker 03:
just because he made some offhand statements to a union steward.

[00:03:10] Speaker 04:
It's a differential standard of review.

[00:03:12] Speaker 04:
It's just if there's one way of looking at it, which is the way you're saying, but there's another way of looking at it, which is the way the board looked at it and said this was all personal in nature.

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And if it's supported by the evidence, we affirm, correct?

[00:03:26] Speaker 03:
Substantial evidence is a high standard, but it hasn't been met here.

[00:03:30] Speaker 03:
Even personal statements when made towards union stewards have been protected when they're encompassed within the union campaign.

[00:03:39] Speaker 04:
I'd like to direct are you asking us to hold that anything that said during a union campaign is by its nature related to union activity like there cannot possibly be any personal.

[00:03:49] Speaker 04:
statements if it's at a union event made to a union steward?

[00:03:54] Speaker 03:
So I think that the Fifth Circuit's ruling in general truck drivers is instructive here.

[00:04:00] Speaker 03:
In that case- Can I ask you a yes or no question?

[00:04:03] Speaker 04:
Is that what you're asking for?

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A ruling that says that anything that happens at a union event directed to a union steward is by definition union related?

[00:04:13] Speaker 04:
That there can never be personal comments made at such an event?

[00:04:17] Speaker 04:
unless it is so appropriate as to lose the axe protection.

[00:04:23] Speaker 04:
That seems to be a different part of that test.

[00:04:26] Speaker 04:
Whether it's related to the union related activity is a different question than how extreme were the comments.

[00:04:35] Speaker 04:
So we don't agree that the comments were extreme.

[00:04:38] Speaker 04:
Okay, that's not what I'm asking.

[00:04:40] Speaker 04:
I'm asking you that.

[00:04:42] Speaker 04:
Is there ever a scenario in which

[00:04:44] Speaker 04:
personal comments can be made.

[00:04:46] Speaker 04:
An event that is a union related event directed at a union related steward.

[00:04:52] Speaker 04:
Can there ever be personal comments at such an event or are they all such comments by definition union related?

[00:04:58] Speaker 03:
I think they'd be by definition union related.

[00:05:00] Speaker 01:
Thank you.

[00:05:03] Speaker 01:
I wonder.

[00:05:05] Speaker 01:
I'll ask your opposing counsel about what I think are some inconsistencies between this NLRB decision and some other decisions where very similar speech was treated as campaign speech.

[00:05:19] Speaker 01:
That might just mean that those prior decisions were incorrect and this one was correct, in which case they need to explain why they departed, which I think they maybe did not explain.

[00:05:29] Speaker 01:
We'll get to that.

[00:05:31] Speaker 01:
On the merits, though, of whether this should be considered protected speech, if an employee comes to work, and even in the midst of a union campaign event, if the employee says kind of vile language, you're a bad mom, and you're stealing from the government, which is basically what he said here,

[00:05:55] Speaker 01:
It's disruptive.

[00:05:56] Speaker 01:
And let's say it had been not the union that punished him for it by hitting him, but it had been the employer that said, we just can't have this kind of personal attack in our workplace.

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That's not the kind of workplace we are.

[00:06:10] Speaker 01:
And so you're suspended for a day without pay or something.

[00:06:14] Speaker 01:
then I think in order for us to rule for you here today, we would also have to think that the employer can't punish this speech, even when it's highly disruptive to the employer's workplace.

[00:06:26] Speaker 01:
It actually seems like a very anti-employer rule that you're urging us to adopt.

[00:06:32] Speaker 03:
So I'm not here to defend employers.

[00:06:35] Speaker 03:
But I would point this court to Keywood Power Constructors, which says not every impropriety committed during Section 7 activity places the employee beyond the protective shield of the Act.

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And that was an employer ULP.

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And the question is not whether the outburst was something to be encouraged, but whether it was so unreasonable as to warrant denying the protections of the Act.

[00:06:59] Speaker 01:
But let me just ask this.

[00:07:00] Speaker 01:
What if instead of the union punishing your client by hitting him, it had been the employer who punished your client by suspending him from work for an hour with pay?

[00:07:11] Speaker 01:
Would that have been an unfair labor practice by the employer?

[00:07:15] Speaker 03:
Yes.

[00:07:15] Speaker 03:
And in fact, there was an unfair labor practice by the employer in this case that was settled right before the trial.

[00:07:23] Speaker 01:
Maybe that's right.

[00:07:23] Speaker 01:
That just seems like, boy, for us to come in and say an employer can't

[00:07:29] Speaker 01:
police disruptions in the workplace.

[00:07:32] Speaker 01:
It's a pretty tough rule for employers.

[00:07:34] Speaker 03:
Well, I wouldn't say that they can't police disruptions, but I think it's important to look at what he actually said here.

[00:07:41] Speaker 03:
He didn't make any outrageous statements.

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He said, some employees had Virginia license plates, Boone should pay her bills, and she should properly care for her children.

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And that's even taking the board's conclusion that he called Boone out by name.

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These are not the types.

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of statements that the board or this court has held to be removed from the protection of the act.

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For example.

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Do you think those statements are related to union activity?

[00:08:11] Speaker 03:
So I think they can be related to union activity.

[00:08:13] Speaker 04:
And I think that if you look at the- How are those statements related to union activity?

[00:08:17] Speaker 03:
So Mr. McClam was a well-known union dissident because of the union financial mismanagement.

[00:08:23] Speaker 03:
Boone was a known, was a union steward in leadership

[00:08:27] Speaker 03:
in union leadership.

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Attacking her financial decisions, personal or otherwise, is related to union activity and to the union's financial situation.

[00:08:42] Speaker 04:
Moreover... That seems a bit of a stretch, doesn't it?

[00:08:44] Speaker 04:
Because my understanding is his criticisms of the union officials and their finances was that they had fancy cars, that they were taking money and

[00:08:53] Speaker 04:
In this context, he was apparently criticizing her for not paying her bills and not having enough money.

[00:08:59] Speaker 03:
But I don't think it's our place to judge what the content of his criticisms of the union were.

[00:09:07] Speaker 04:
You're the one who said that the content of the criticisms was OK.

[00:09:12] Speaker 04:
You're the one who brought up the content of the criticisms.

[00:09:14] Speaker 03:
It's in the wide range of reason was that employees are permitted to exercise their section seven activity.

[00:09:23] Speaker 04:
She was active.

[00:09:24] Speaker 04:
That's the question.

[00:09:24] Speaker 04:
Is the section seven activity, are these statements related to union activity?

[00:09:29] Speaker 04:
And your response is only based on the finances.

[00:09:34] Speaker 04:
So you agree that the license plate and the taking care of the children are not union activity, correct?

[00:09:39] Speaker 03:
No.

[00:09:39] Speaker 03:
So the Virginia license plate comment the board found was

[00:09:43] Speaker 03:
was disparaging only because the Virginia license plates were cheaper.

[00:09:53] Speaker 03:
So that still relates to union financial mismanagement.

[00:09:55] Speaker 03:
When you look at the record with respect to how the children statement, it said quit the union and take care of your kids.

[00:10:05] Speaker 03:
That was still related to the union.

[00:10:07] Speaker 04:
You didn't say quit the union and take care of your kids.

[00:10:09] Speaker 03:
You said take care of your kids.

[00:10:15] Speaker 03:
The record, page 253, Williams witnessed the quit the union, take care of your kids remark.

[00:10:23] Speaker 03:
If you look at what the record actually says, Boone testified that he said quit the union and take care of your kids, and Williams backed that up.

[00:10:34] Speaker 00:
We'll give you a couple of minutes in reply.

[00:10:43] Speaker 00:
Thank you.

[00:10:47] Speaker 00:
Thank you.

[00:10:56] Speaker 02:
Good morning, Your Honor's may please the court Greg so tear for the National Relations Board.

[00:11:01] Speaker 02:
Your honor.

[00:11:01] Speaker 02:
This is one of the board's bread and butter cases.

[00:11:05] Speaker 02:
It's not making law.

[00:11:06] Speaker 02:
It's applying

[00:11:12] Speaker 02:
There are such a wide range.

[00:11:14] Speaker 01:
Yes.

[00:11:14] Speaker 01:
Start there.

[00:11:15] Speaker 01:
I don't think either party cited this NLRB decision, Pier 60, which is from 2015.

[00:11:24] Speaker 01:
And it held that the following campaign speech was posted on Facebook about how an employee was treating lower level employees.

[00:11:43] Speaker 01:
I'm sorry, an employee supervisor?

[00:11:46] Speaker 01:
A manager was treating employees.

[00:11:49] Speaker 01:
So this was basically, it's going to end with the sentence, yes, for the union.

[00:11:55] Speaker 01:
So it certainly sounds like campaign speech.

[00:11:58] Speaker 01:
It's posted on Facebook.

[00:11:59] Speaker 01:
I'm not going to use the bad words.

[00:12:01] Speaker 01:
The guy's name was Bob.

[00:12:04] Speaker 01:
Bob is such a nasty MF.

[00:12:07] Speaker 01:
Don't know how to talk to people.

[00:12:09] Speaker 01:
Exclamation marks.

[00:12:11] Speaker 01:
F his mother and his entire effing family exclamation marks.

[00:12:17] Speaker 01:
What a loser exclamation marks.

[00:12:20] Speaker 01:
Vote yes for the union.

[00:12:21] Speaker 01:
Now that ad hominem attack was considered campaign speech by the NLRB.

[00:12:28] Speaker 01:
And it's hard for me to see how that ad hominem attack is campaign speech when this ad hominem attack was not campaign speech.

[00:12:38] Speaker 01:
Well, Your Honor, unfortunately,

[00:12:41] Speaker 02:
don't have the, you know, the Pier 60, you know, immediately in my mind, I assume the board found that the association between yes for the union and the fact that this person was a manager was enough to make a campaign speech.

[00:12:55] Speaker 02:
I thought you might say that, so let me- No, no, I'm, it's a question I'm asking.

[00:13:00] Speaker 01:
Yeah, I mean, I think that part of it is, it is made a little bit more clear when the last sentence is yes for the union, so I get that.

[00:13:07] Speaker 01:
But I think,

[00:13:09] Speaker 01:
Imagine that the only reasonable way to read what was said here is there's a debate about the union.

[00:13:16] Speaker 01:
There's a debate about whether people are stealing money from the union.

[00:13:19] Speaker 01:
In the midst of this debate, McClam makes some very, I think, beyond the line personal attacks and doesn't end it with the sentent against a representative of the union.

[00:13:34] Speaker 01:
And doesn't end it with vote for the union.

[00:13:37] Speaker 01:
Maybe the if the only the only reasonable way to interpret what was done is a bunch of campaign speech and ad hominid attack with an implied at the end vote for the union.

[00:13:49] Speaker 01:
It doesn't seem like this would be any different than that.

[00:13:51] Speaker 01:
So I guess what I'm saying is, would this case be different if McClam had ended his attacks with the line vote for the union or vote against the union?

[00:14:01] Speaker 02:
Well, as you know, I can't respond to what the board would do because, you know, the board

[00:14:08] Speaker 02:
I'm not the board.

[00:14:09] Speaker 02:
I'm just the board's my client.

[00:14:12] Speaker 02:
I can only give you my personal view on that.

[00:14:16] Speaker 02:
My personal view on that is that if I was to go by Pier 60, then I guess I would say the board has held that something similar in Pier 60 happened.

[00:14:30] Speaker 02:
So it would apply the same way here.

[00:14:32] Speaker 02:
The point here, though, is

[00:14:36] Speaker 02:
not only did he not make those statements, that statement, he didn't make any link between his attacks on Boone and her license plates and her ability to pay bills and her union activity, and the union, I'm sorry, he didn't make a link between her personal ability to pay her bills, take her kids, et cetera, and the union.

[00:15:00] Speaker 01:
I think Boone says, and I'm in the JA here,

[00:15:04] Speaker 01:
The question is, what did McClam say?

[00:15:07] Speaker 01:
And she says, it was just the same, you know, about not paying the bills and take care of, tell them how you stole the union money.

[00:15:15] Speaker 01:
I'm like, what money, McClam?

[00:15:17] Speaker 01:
And then he says, I'm going to let it out.

[00:15:19] Speaker 01:
I'm going to let it out on Tuesday.

[00:15:20] Speaker 01:
So it seems like even Boone understood there to be some connection between an attack on Boone's honesty and an attack on the honesty of Boone's union.

[00:15:34] Speaker 02:
That's a good point, Your Honor.

[00:15:37] Speaker 02:
But remember, we're not looking at what Boone understood.

[00:15:41] Speaker 02:
We're looking at what employees witnessing this would have understood.

[00:15:44] Speaker 01:
What if there had been a presidential debate, it's not too far away from real life, where they're debating policy, they're debating who to elect.

[00:15:54] Speaker 01:
In the middle of the debate, one candidate just turns to the camera and says, my opponent is a bad parent and is not trustworthy with money.

[00:16:05] Speaker 01:
And then they go on arguing about politics.

[00:16:08] Speaker 01:
Right.

[00:16:08] Speaker 01:
It seems like that's campaign speech, right?

[00:16:10] Speaker 01:
Even though it's very ad hominem, it's very personal.

[00:16:15] Speaker 01:
That's true.

[00:16:17] Speaker 01:
Boone wasn't running for election, though.

[00:16:19] Speaker 01:
Well, but she was a surrogate for people running for election.

[00:16:22] Speaker 01:
She was a surrogate for people running.

[00:16:23] Speaker 01:
You can take my hypothetical, put it on CNN, and have two surrogates arguing against each other about who to vote for.

[00:16:30] Speaker 02:
I think, again, the question is, how would employees witnessing this see it?

[00:16:38] Speaker 02:
Would they see McClam attacking Boone as a unit surrogate by saying, you have Virginia license plates, you don't pay your bills, and you don't take care of your kids?

[00:16:51] Speaker 02:
Would those people make the link between those accusations and the union and its alleged mismanagement of funds and so on and so forth?

[00:17:03] Speaker 02:
Now in the setting that you're talking about,

[00:17:06] Speaker 02:
We're watching TV.

[00:17:07] Speaker 02:
There's two people, two talking heads, right?

[00:17:10] Speaker 02:
And we know one of them is for one side.

[00:17:13] Speaker 02:
One of them is for the other.

[00:17:14] Speaker 02:
That's why they were brought here.

[00:17:16] Speaker 01:
What if I agree with you that this is not protected campaign speech, but I think it's just squarely inconsistent with Pier 60, because it really doesn't matter if vote for the union is stated or implied.

[00:17:29] Speaker 01:
What are we supposed to do?

[00:17:30] Speaker 01:
What should I do then?

[00:17:33] Speaker 02:
I think, Your Honor, Pier 60 is one single post on Facebook.

[00:17:39] Speaker 02:
Here you have really about 10 or 15 minutes, I'm not sure, of back and forth arguing that is witnessed by multiple people and where there is no mention of the union.

[00:17:54] Speaker 02:
Hardly any mention of the union.

[00:17:56] Speaker 02:
In fact, you have several people who testify.

[00:17:59] Speaker 02:
Laco King, for example, is asked, did you ever hear him say the union can't pay its bills?

[00:18:05] Speaker 02:
No, he didn't say anything about the union.

[00:18:08] Speaker 02:
Boone, did Mr. McClam say the union doesn't pay its bills?

[00:18:11] Speaker 02:
No.

[00:18:11] Speaker 02:
Butler, can you recall him saying the union doesn't pay its bills?

[00:18:15] Speaker 02:
I can't recall him saying that.

[00:18:16] Speaker 02:
He was just rambling on about a lot.

[00:18:19] Speaker 02:
So that's the first thing.

[00:18:20] Speaker 02:
The second thing you have to look at is Boone's reaction.

[00:18:23] Speaker 02:
Boone when she speaks back to McClam, she doesn't mention the union based on all the testimony of all the witnesses.

[00:18:33] Speaker 02:
She says, leave me alone.

[00:18:36] Speaker 02:
Stop harassing me.

[00:18:37] Speaker 02:
Leave my name out of your mouth.

[00:18:38] Speaker 02:
Stop putting my personal business in the street.

[00:18:42] Speaker 02:
Stop harassing me.

[00:18:43] Speaker 02:
Keep my kids out of it.

[00:18:44] Speaker 01:
And I think there's no doubt it was personal.

[00:18:46] Speaker 01:
The statement was personal.

[00:18:48] Speaker 01:
And I guess I'm wondering from you, can you help me

[00:18:52] Speaker 01:
Help me know how to draw the line between, in the midst of a debate about a union campaign, how do I draw the line between personal attacks that are connected to that debate and personal attacks that are not connected to that debate?

[00:19:09] Speaker 02:
Well, you're hitting the nub of it.

[00:19:13] Speaker 02:
And that's why I was saying earlier, this is the kind of bread and butter cases that the board deals with all the time.

[00:19:19] Speaker 02:
The board's job is to thread that needle

[00:19:23] Speaker 02:
Along all of these cases, as best as it can, as the court knows, it's not an exact science.

[00:19:32] Speaker 02:
What I would say is there's a case that McClam sites, which is, I think, instructive, and that's local 806.

[00:19:40] Speaker 02:
In local 806, you had a union that was led by three members of the same family.

[00:19:46] Speaker 02:
They were all on the board.

[00:19:47] Speaker 02:
One of them was president, et cetera.

[00:19:49] Speaker 02:
Those people, and there was a bunch of dissidents who were upset with the union.

[00:19:54] Speaker 02:
Those people, that family, they were making the policies that the dissidents were upset about.

[00:20:01] Speaker 02:
And over the four years that this argument happened, it became more and more contentious.

[00:20:08] Speaker 02:
And more and more ad hominem attacks were thrown back and forth.

[00:20:11] Speaker 02:
And what the board found

[00:20:13] Speaker 02:
In that case, the Leon family, as they were, they came to personify the union.

[00:20:21] Speaker 02:
Their person became indistinguishable from the union.

[00:20:27] Speaker 02:
And therefore, it was no longer possible to really separate the ad hominem attacks by the union members from their picketing and protected activity.

[00:20:40] Speaker 02:
It all sort of melded as one.

[00:20:42] Speaker 02:
I think that shows a point where the lines blur.

[00:20:52] Speaker 02:
In this case, we don't have this blurring of the lines.

[00:20:57] Speaker 02:
Boone, again, is a steward.

[00:20:59] Speaker 02:
She's not on the executive committee.

[00:21:02] Speaker 02:
She's not making policies.

[00:21:03] Speaker 02:
She's a driver, right?

[00:21:04] Speaker 01:
I mean, she responds to his statement by saying, talk about other candidates' business, as if she's a candidate.

[00:21:10] Speaker 01:
Of course, she's not a candidate, but she's an incumbent and a surrogate for other candidates.

[00:21:14] Speaker 02:
Right, she tells him.

[00:21:15] Speaker 02:
And I think that supports the board's view.

[00:21:18] Speaker 02:
She's actually telling McClam

[00:21:21] Speaker 02:
Go and go do your dissident activity.

[00:21:24] Speaker 02:
Go talk about how the union is corrupt and how they're ripping people off.

[00:21:30] Speaker 02:
Just leave me out of it.

[00:21:32] Speaker 02:
I don't want anything to do with this.

[00:21:35] Speaker 00:
Let me ask you about Miss Williams.

[00:21:37] Speaker 00:
Yeah.

[00:21:40] Speaker 00:
And there was a dissent, a dissenting member of the board who makes a pretty strong argument, I think, that the majority said, well, when the management said,

[00:21:51] Speaker 00:
You had the manager, you had Boone, and you had William.

[00:21:57] Speaker 00:
And the manager says, Boone, you know slapping someone is a terrible offense.

[00:22:03] Speaker 00:
He hadn't mentioned, as far as I can tell, he hadn't mentioned McClam or anything.

[00:22:07] Speaker 00:
And suddenly William says, you fire her, you gotta fire McClam.

[00:22:15] Speaker 00:
That doesn't sound conditional to me.

[00:22:19] Speaker 02:
Well, there was an if before that, but I understand your point.

[00:22:23] Speaker 02:
I understand your point.

[00:22:24] Speaker 00:
That was in response to the management saying, you know, this is a terminal offense to slap someone.

[00:22:32] Speaker 00:
And she interjects, lamb, by saying, well, you're going to fire her.

[00:22:35] Speaker 00:
You got to fire him.

[00:22:37] Speaker 02:
So I think the board explained that as raising the stakes, right?

[00:22:44] Speaker 02:
The way I read that is that what Williams was doing is variation on an argument I've heard anyway, which is,

[00:22:56] Speaker 02:
If you do A, you're going to have to do B. And you don't want to do B. So you're better off not doing A. And that's why the board found that she wasn't actually saying McLaren should be fired.

[00:23:08] Speaker 02:
She was trying to make the case for the employer not to fire either one of them.

[00:23:14] Speaker 02:
And you have to remember, and this goes to the overarching negligence standard in this is a good faith issue.

[00:23:21] Speaker 02:
Did the union, even if this is

[00:23:26] Speaker 02:
even if this could be construed as an implied request, did the union violate its duty of fair representation?

[00:23:32] Speaker 02:
And it's a high bar to show a violation of that good faith standard.

[00:23:36] Speaker 04:
But it seems to me that the argument that you're making relies on this idea that what Williams was saying was, I didn't mean to say fire him.

[00:23:50] Speaker 04:
I just meant treat them equally.

[00:23:52] Speaker 04:
Don't fire her.

[00:23:52] Speaker 04:
That's kind of what

[00:23:54] Speaker 04:
The argument is, but the ALJ found, and I'm quoting from JA 597, Williams testified that she told Marshall that whatever you decide to do to McClammon Boone, it should be fair, it should be equal.

[00:24:11] Speaker 04:
And the ALJ, this is the board talking about what the ALJ said, that this was not credible.

[00:24:20] Speaker 04:
It discredited that motive.

[00:24:23] Speaker 04:
So what do we do with that?

[00:24:26] Speaker 04:
But the ALJ seems to have specifically discredited the very, I guess, factual finding that the board wants to draw, the majority wants to draw.

[00:24:37] Speaker 02:
Right.

[00:24:37] Speaker 02:
I submit there's a difference between not firing either one of them and treating them fairly.

[00:24:45] Speaker 02:
Right?

[00:24:45] Speaker 02:
I mean, for them not to be fired, there's still a range of punishments and differential punishments that could be imposed between the two of them.

[00:24:53] Speaker 02:
And that's what the board is getting at.

[00:24:54] Speaker 02:
Don't fire them.

[00:24:55] Speaker 02:
Do with her what you want.

[00:24:56] Speaker 02:
Suspend her for as long as you want.

[00:24:58] Speaker 02:
Give him a slap on the wrist.

[00:25:00] Speaker 02:
Just let her keep her job.

[00:25:02] Speaker 01:
But he didn't say suspend her and give him a slap on the wrist.

[00:25:05] Speaker 01:
No.

[00:25:05] Speaker 01:
She said treat them at best.

[00:25:06] Speaker 01:
She said treat them equally.

[00:25:08] Speaker 01:
The best argument for the board here is that she was arguing for equal

[00:25:12] Speaker 02:
treatment.

[00:25:13] Speaker 02:
I think the best argument is that she was arguing for them not to be fired, which is a distinction.

[00:25:18] Speaker 02:
I understand them equal.

[00:25:20] Speaker 02:
I mean, well, that's what she testified about.

[00:25:22] Speaker 02:
And she was discredited about that.

[00:25:24] Speaker 02:
Right.

[00:25:25] Speaker 02:
She being Williams.

[00:25:26] Speaker 02:
Williams testified, that's what I wanted, and she was discredited.

[00:25:30] Speaker 01:
So either we don't believe Williams, in which case... Well, the board didn't, right?

[00:25:34] Speaker 01:
I mean, fine.

[00:25:36] Speaker 01:
But if Williams is not credible, why are... I mean, I agree Williams is not very credible in this situation.

[00:25:44] Speaker 01:
Why are we saying that there was fair representation by Williams when Williams's best defense was not a credible defense?

[00:25:51] Speaker 02:
Well, it's fair representation by the union, Your Honor.

[00:25:53] Speaker 02:
She was the union rep.

[00:25:56] Speaker 02:
Right.

[00:25:59] Speaker 02:
There's a couple things here.

[00:26:00] Speaker 02:
First, and this is what I was going to get to before, and why it's such a high burden to show a violation of the duty of fair representation.

[00:26:14] Speaker 02:
Williams is not an attorney.

[00:26:16] Speaker 02:
She's not even a professional union employee.

[00:26:20] Speaker 02:
She's a steward.

[00:26:21] Speaker 02:
She drives all day and from time to time, she puts on her steward hat and she shows up.

[00:26:26] Speaker 02:
In this case, she gets called in to do that.

[00:26:28] Speaker 02:
She is not used to weighing her language or thinking about how it's going to be construed.

[00:26:35] Speaker 02:
She's just thinking on her feet and trying to come up with

[00:26:39] Speaker 02:
What is her purpose there is to try and minimize the damage for Boone.

[00:26:43] Speaker 02:
She knows this is bad for Boone.

[00:26:45] Speaker 01:
Why is that her?

[00:26:46] Speaker 01:
Shouldn't her purpose also be to not throw McClam under the bus?

[00:26:49] Speaker 01:
I mean, she's supposed to represent him as much as she represents Boone, right?

[00:26:52] Speaker 01:
Right.

[00:26:53] Speaker 01:
Right.

[00:26:54] Speaker 01:
Can you imagine if I'm a defendant in a trial and there's another co-defendant and my lawyer tells the jury, if you're going to convict the co-defendant, you've got to convict this one too.

[00:27:06] Speaker 01:
That'd be it.

[00:27:07] Speaker 01:
You wouldn't want that person to be your lawyer, right?

[00:27:08] Speaker 01:
No.

[00:27:09] Speaker 01:
If you were a union dissident, would you want Williams to be your rep?

[00:27:13] Speaker 02:
Again, Your Honor, Williams is not a lawyer.

[00:27:16] Speaker 02:
She's doing her best under the circumstances.

[00:27:19] Speaker 02:
I get it.

[00:27:20] Speaker 02:
And so if she shoots her mouth off,

[00:27:24] Speaker 02:
You know, it's it's is it negligence or is it intentional?

[00:27:30] Speaker 02:
What's she trying to throw?

[00:27:32] Speaker 02:
I'm sorry.

[00:27:32] Speaker 04:
I just don't see why that's relevant that she's not a lawyer and she's doing her best.

[00:27:36] Speaker 04:
If she goes to the face statement, regardless, that seems to imply that somebody she represents, McClam should be fired.

[00:27:45] Speaker 04:
Does it matter that she was doing her best?

[00:27:49] Speaker 02:
I think it I think under the negligence standard, it does, Your Honor.

[00:27:53] Speaker 04:
Well, negligence is an objective standard, too.

[00:27:56] Speaker 02:
Right.

[00:27:57] Speaker 04:
It's not a subjective standard.

[00:27:58] Speaker 04:
We should have pity on this woman who doesn't know what she's saying.

[00:28:02] Speaker 01:
No, no, no, no, no, not at all.

[00:28:04] Speaker 01:
She still has to follow the NLRA, right?

[00:28:06] Speaker 01:
Right.

[00:28:06] Speaker 01:
Even if she's not a lawyer.

[00:28:08] Speaker 01:
Right.

[00:28:08] Speaker 01:
I just don't see how it matters whether she's a lawyer.

[00:28:11] Speaker 02:
Well, the point is,

[00:28:14] Speaker 02:
Is it, are we finding that she had an ulterior motive and an agenda and she was trying to throw McLem under the bus?

[00:28:23] Speaker 02:
Or was this an instance of- Is this a matter of intent?

[00:28:28] Speaker 04:
Are we supposed to- No, no, no, no.

[00:28:29] Speaker 04:
Was she trying to throw him under the bus or did she do so by what she said?

[00:28:33] Speaker 04:
Isn't that what we should be looking at?

[00:28:34] Speaker 02:
Yes, that is.

[00:28:35] Speaker 04:
I just don't know why we're focusing so much on her and what she was thinking.

[00:28:40] Speaker 04:
I don't think that, why is that relevant?

[00:28:42] Speaker 02:
Because, Your Honor, once you find, and if this court finds that her statement was an implied request to fire McClam, the next question is, did she act in bad faith?

[00:28:55] Speaker 02:
Right?

[00:28:56] Speaker 02:
Did she violate the duty of fair representation, which is a bad faith standard, which is, again, a tough burden to meet.

[00:29:04] Speaker 02:
And so that's when you have to look at the context.

[00:29:06] Speaker 02:
That's when you have to look at, you know, why was she there?

[00:29:09] Speaker 02:
Why, as the board finds, why would she walk in there to defend Boone?

[00:29:17] Speaker 02:
And then minutes in, she turns to arguing that McClam should be fired.

[00:29:23] Speaker 02:
That goes completely against her main purpose in that meeting, which is to limit the damage for Boone.

[00:29:30] Speaker 02:
And so it's much more reasonable to draw the inference that the board did, which was that she was continuing on her

[00:29:38] Speaker 02:
effort to prevent the damage, to limit the damage for Boone by arguing that neither of them be discharged.

[00:29:43] Speaker 01:
I think a more precise way to say it is not that it goes against her purpose.

[00:29:47] Speaker 01:
It goes against what the NLRA requires her purpose to be, but seems quite consistent with what was her most likely purpose, which was to punish a union dissident.

[00:30:00] Speaker 01:
It's sort of like the Occam's razor, simplest explanation for what happened.

[00:30:04] Speaker 01:
She wasn't there to talk about McClam, but she didn't like McClam.

[00:30:08] Speaker 01:
So she tried to punish McClam.

[00:30:12] Speaker 02:
I think it's, you can see it that way.

[00:30:15] Speaker 02:
But again, the question is, is the board's inference reasonably defensible?

[00:30:23] Speaker 04:
You may find, you may disagree De Novo.

[00:30:26] Speaker 04:
The board said she didn't advocate for him to be fired.

[00:30:30] Speaker 02:
And then the board said, even if she did,

[00:30:33] Speaker 02:
The union didn't violate its duty of fair representation, right?

[00:30:38] Speaker 02:
The board didn't stop there.

[00:30:39] Speaker 04:
I thought the board relied on just that statement in isolation.

[00:30:43] Speaker 04:
It said this statement, which is if you're going to fire her, you should fire two, is not a request to the fireman.

[00:30:53] Speaker 02:
That was the first part of the analysis.

[00:30:54] Speaker 02:
That's page four.

[00:30:56] Speaker 02:
The last paragraph of page four, we find that that

[00:31:02] Speaker 02:
that statement couldn't be found to be an implied request.

[00:31:06] Speaker 02:
However, the board continues, even if we were to apply the second part of the analysis for duty of fair representation, we would find that the union didn't act in bad faith.

[00:31:26] Speaker 02:
And this goes back to what I was saying earlier.

[00:31:33] Speaker 02:
When I got this case and I read this thing first, I wasn't thrilled.

[00:31:37] Speaker 02:
I sort of looked at my supervisor and was like, really?

[00:31:43] Speaker 02:
But even if you disagree with the way the board.

[00:31:48] Speaker 04:
You can see that your case is weak?

[00:31:50] Speaker 02:
No.

[00:31:51] Speaker 02:
I can see that my personal initial opinion upon getting this case was, oh, I don't like this.

[00:32:01] Speaker 02:
Now, after that, I spent a couple of months on this case, reading the entire transcript and briefing it.

[00:32:08] Speaker 02:
And now I'm quite confident standing in front of you in both of the board's decisions.

[00:32:14] Speaker 02:
However, even if, and this is the important point, even if you disagree with, would have decided this case de novo,

[00:32:26] Speaker 02:
The question is, is the board's inference reasonably defensible?

[00:32:30] Speaker 02:
And under the rational basis standard here, would the facts of this case have required the board to find the violation?

[00:32:39] Speaker 02:
Was that the only outcome here?

[00:32:42] Speaker 02:
Or did the board reasonably find, even if you may disagree, was there a reasonable basis for the board to reach its conclusion?

[00:32:50] Speaker 02:
And you may not agree.

[00:32:52] Speaker 02:
that there was a reasonable basis for the board to find that the statement itself wasn't an implied request.

[00:32:59] Speaker 02:
However, I do submit that there is absolutely a reasonable basis for the board to find, based on the entire circumstances and the union's history with McClam, that they were not trying to throw him under the bus, that she was doing her best and that it was not

[00:33:20] Speaker 02:
It was not some kind of devious plot to get rid of him.

[00:33:23] Speaker 02:
There was no evidence that Williams or anybody in the union had it against McClam.

[00:33:29] Speaker 02:
He had to be, I think you can rightly say, in the seven years he'd been working there, he'd been a thorn in the union's side.

[00:33:36] Speaker 02:
I mean, he, within months of being hired, he petitioned for decertification.

[00:33:39] Speaker 01:
But there's some evidence that not everyone in the union liked him.

[00:33:42] Speaker 01:
Right.

[00:33:43] Speaker 01:
He was, I mean- The union stewards hit him.

[00:33:47] Speaker 02:
The union steward hit him because of the personal insults that hit him.

[00:33:53] Speaker 01:
And I have to say, I admire you.

[00:33:54] Speaker 01:
I appreciate your candor.

[00:33:55] Speaker 01:
I welcome it.

[00:33:56] Speaker 01:
I admire that you recognize that when you first look at this case, it looks the way you said it looks.

[00:34:04] Speaker 01:
And I appreciate that you're here to represent the board.

[00:34:06] Speaker 01:
And you're doing, I think, a better job in your role as an agent for the board than Williams did as an agent for McClam.

[00:34:15] Speaker 01:
I went to school for this.

[00:34:15] Speaker 01:
It's the point of a union, I think.

[00:34:17] Speaker 01:
is to protect workers.

[00:34:19] Speaker 01:
Absolutely.

[00:34:22] Speaker 01:
McClam was a worker.

[00:34:24] Speaker 01:
The union was supposed to be there for him.

[00:34:27] Speaker 01:
So I mean, it actually seems like a very, in the same way that I think arguably, McClam is arguing for a rule that might ultimately be quite bad for employers, I think on issue one.

[00:34:40] Speaker 01:
On issue two, I think the board here is arguing for a rule

[00:34:46] Speaker 01:
that would really be a very anti-worker rule because- What would that rule be?

[00:34:52] Speaker 01:
That the workers union is allowed to just like sacrifice the worker when they don't like his speech.

[00:35:04] Speaker 02:
But it's, and this is,

[00:35:12] Speaker 02:
what the board relied on.

[00:35:13] Speaker 02:
It makes no sense for Williams, where she is at that moment, to sacrifice McClam, because then she's sacrificing Boone.

[00:35:23] Speaker 02:
And she doesn't want... Boone just hit someone, so she was going to get disciplined.

[00:35:28] Speaker 02:
Disciplined?

[00:35:30] Speaker 02:
Not fired, hopefully.

[00:35:31] Speaker 02:
I mean, nobody... This was a preliminary investigation meeting, right?

[00:35:36] Speaker 02:
This happened the same day.

[00:35:38] Speaker 02:
Williams doesn't know at that point what the employer is planning to do with Boone.

[00:35:43] Speaker 02:
It's possible even Marshall doesn't know, you know, so she's really if it might be different if this was, you know, a later on a meeting with management Boone and her stewards saying, OK, listen, you hit somebody in the face.

[00:35:58] Speaker 02:
That's unacceptable.

[00:36:00] Speaker 02:
You're fired.

[00:36:01] Speaker 02:
And then Williams stands up and says, well, in that case, you have to fire McGlam to

[00:36:05] Speaker 02:
You know, I could see there, in that case, it would be a much stronger argument for your position.

[00:36:10] Speaker 02:
But in this case, where she's really flying blind, I don't think it rises to that level.

[00:36:17] Speaker 04:
Was that the only statement she made about McClam during this meeting?

[00:36:21] Speaker 02:
Yes, as far as the record shows, yes.

[00:36:24] Speaker 04:
So I guess the best argument you can make is that at least the finding of no bad faith is supported by the record, because it's one isolated statement

[00:36:34] Speaker 04:
about the glam, the entire context of this is, you know, trying to save Boone.

[00:36:39] Speaker 04:
And it's a conditional statement.

[00:36:41] Speaker 04:
Like if we're going to fire her, you would have to fire him.

[00:36:43] Speaker 04:
Right.

[00:36:44] Speaker 04:
And so I guess that would be your strongest argument, in my opinion.

[00:36:47] Speaker 04:
It would be have to rely on the bad faith prong.

[00:36:52] Speaker 02:
I think that's I think that's one of the best arguments, maybe the maybe the best in your in your view.

[00:36:57] Speaker 02:
I think the argument that, you know, about the context and really the

[00:37:03] Speaker 02:
The purposelessness for Williams in this situation during a preliminary investigation of where they don't know what the employer is going to do with Boone of just giving up right there at the beginning saying, oh, you've said she could be fired based on what she does.

[00:37:23] Speaker 02:
OK, well then in that case, fire her.

[00:37:24] Speaker 02:
Just fire McClam to.

[00:37:27] Speaker 02:
That just does not, I think,

[00:37:33] Speaker 02:
You might think that you might view it, again, de novo, as just evidence that she just gave up and decided to throw the baby out with the bathwater.

[00:37:44] Speaker 02:
I think the board's inference that she was just trying to convince Marshall not to fire the one of them, I think it is certainly reasonable and should not be overturned.

[00:37:57] Speaker 00:
I'm sorry.

[00:37:57] Speaker 00:
You haven't mentioned the fact.

[00:37:59] Speaker 00:
I don't think that the ALJ who actually heard

[00:38:03] Speaker 00:
this Miss Williams did not believe anything she said.

[00:38:06] Speaker 00:
She found her testimony slanted, gratuitous.

[00:38:10] Speaker 00:
I don't know all the adjectives she used.

[00:38:13] Speaker 02:
Right.

[00:38:14] Speaker 00:
So you're painting a picture of Williams.

[00:38:17] Speaker 00:
We don't know her.

[00:38:17] Speaker 00:
Nobody in this room knows her, but there is an ALJ who actually listened to her testimony and didn't believe her.

[00:38:24] Speaker 02:
Right.

[00:38:28] Speaker 02:
But we're not looking at, all we have, right, is what happened that day.

[00:38:37] Speaker 02:
All we have is the allegedly implied request to fire McLean.

[00:38:41] Speaker 02:
All we have are those words, right?

[00:38:44] Speaker 02:
So, and the Boone corroborated Williams and said, yes, she said words to that effect.

[00:38:52] Speaker 02:
OK, so.

[00:38:54] Speaker 04:
But what do we do with the ALJ factual finding that

[00:38:58] Speaker 04:
I guess Williams testified that all she meant when she said that was, I just thought you should treat them both fairly, and he discredited that statement.

[00:39:07] Speaker 04:
Do we defer to the ALJ's credibility findings and factual findings?

[00:39:12] Speaker 02:
Yeah, the board deferred to them, and the board said it wasn't going to rely on Williams.

[00:39:17] Speaker 02:
The board didn't overturn the judge's credibility findings.

[00:39:20] Speaker 02:
What the board found is that in this context,

[00:39:27] Speaker 02:
The way it happened, the employer would not have understood that as a request to fire McClam.

[00:39:33] Speaker 02:
And even if based on the words itself, it would have understood that.

[00:39:38] Speaker 02:
There's no reason, it doesn't make sense that she was, again, within minutes of going in there in this preliminary meeting deciding, you know what, I give up, just fire both of them.

[00:39:50] Speaker 04:
I'm just, this is actually, I don't really understand how this works between the board and the ALJ.

[00:39:53] Speaker 04:
If the ALJ makes a finding

[00:39:55] Speaker 04:
that this statement was a statement to fire McLean.

[00:39:58] Speaker 04:
The board can say it was not a statement to fire McLean.

[00:40:01] Speaker 02:
The board.

[00:40:05] Speaker 02:
The board.

[00:40:05] Speaker 02:
The board looks at the words that were said at that moment, right?

[00:40:11] Speaker 02:
So not it.

[00:40:12] Speaker 02:
We were talking before.

[00:40:12] Speaker 02:
It's not intent, right?

[00:40:14] Speaker 02:
It's whether it as far as the language goes, the board looks at the language itself.

[00:40:20] Speaker 02:
Now her justification for it.

[00:40:22] Speaker 04:
That's on prong one of the test.

[00:40:23] Speaker 04:
That's on problem whether

[00:40:25] Speaker 04:
So on the prong one of the test, which is, was there even a request to fire McClam?

[00:40:31] Speaker 04:
The board just looked at the words and said, this is conditional.

[00:40:34] Speaker 04:
This is not a request to fire McClam.

[00:40:36] Speaker 04:
But if this panel believes that prong one isn't met and we need to go to prong two, and we're looking at bad faith, and the ALJ has said, when Williams testified that I wasn't saying that, I was just saying treat them equally,

[00:40:51] Speaker 04:
And the ALJ discredited that and said, no.

[00:40:54] Speaker 04:
What do we do with that if we're on prong two, not prong one?

[00:40:58] Speaker 02:
You go back to what we were talking about earlier about good faith.

[00:41:01] Speaker 02:
If the whole context about it doesn't matter, if you don't think the context and everything leading up to that supports the board's conclusion,

[00:41:10] Speaker 02:
Then you go back to what the board said at the last paragraph of page four, which is, at most, this was a single statement during a preliminary meeting.

[00:41:26] Speaker 02:
And it wasn't repeated afterwards.

[00:41:29] Speaker 02:
It was inartfully said, yes.

[00:41:32] Speaker 02:
But it did not rise to the high bar of bad faith.

[00:41:37] Speaker 04:
And it's still objective standard.

[00:41:38] Speaker 02:
Yes.

[00:41:39] Speaker 02:
Yeah.

[00:41:41] Speaker 00:
Thank you.

[00:41:42] Speaker 02:
Thank you, Your Honor.

[00:41:43] Speaker 02:
With that, we respectfully request that this court deny the petition.

[00:41:49] Speaker 02:
Thank you.

[00:41:51] Speaker 00:
Ms.

[00:41:51] Speaker 00:
Hazelwood, why don't you take two minutes?

[00:41:55] Speaker 03:
Thank you, Your Honor.

[00:41:58] Speaker 03:
Just one quick point on the second issue.

[00:42:01] Speaker 03:
The standard is not whether the union steward acted in bad faith.

[00:42:07] Speaker 03:
There's a heightened standard

[00:42:09] Speaker 03:
when a union steward requests or attempts to seek an employee's discharge.

[00:42:17] Speaker 03:
And that creates a rebuttable presumption that it acted unlawfully that can only be rebutted by a good faith showing that the union's actions were done in good faith based on rational considerations.

[00:42:28] Speaker 04:
Isn't the standard in a particular context that's not applicable here, this rebuttable presumption?

[00:42:33] Speaker 04:
I thought that was in a different context.

[00:42:36] Speaker 03:
No, that's the heightened standard here.

[00:42:38] Speaker 03:
If there's a demand, a discharge demand or an attempted discharge, then that heightened rebuttable standard is the standard that's applied in this case.

[00:42:48] Speaker 03:
But I wanted to just return to the first issue.

[00:42:55] Speaker 03:
So with respect to the first claim, the standard is when an objective employee would have understood the attack to be, whether it was campaign related, related to Mr. McLam's Section 7 activity.

[00:43:07] Speaker 03:
And there's evidence in the record to suggest that that was the case.

[00:43:10] Speaker 03:
So for example, on page 177, Boone said, when asked whether McLam's statements were made about him, she said,

[00:43:23] Speaker 03:
At the time, I was the only person in there campaigning.

[00:43:27] Speaker 03:
After Boone's attack, Williams turned to another union, another candidate for the union office and said, today was not a day to be campaigning, suggesting that there was an understanding that the campaign continued throughout the event.

[00:43:44] Speaker 03:
On page 273 of the record, when Williams was asked what Michael Lamb's reputation was, when she was asked what you know how he is means, she referred back to the fact that he doesn't like ATU.

[00:44:01] Speaker 03:
And when someone is showing support for ATU, he speaks out against them.

[00:44:14] Speaker 03:
Butler also when she she tested on testified at record page 211 that make lamb made prior similar displays by down talking the union.

[00:44:24] Speaker 03:
I think this context is important and central to this case.

[00:44:28] Speaker 03:
There are no questions.

[00:44:30] Speaker 03:
All right.

[00:44:30] Speaker 03:
Thank you.

[00:44:31] Speaker 03:
Thank you.