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Case number 24, Dutch 1360 et al.

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Vermont Information Processing Inc.

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petitioner versus National Labor Relations Board.

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Mr. Ellis for the petitioner, Mr. Saunders for the respond.

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Good morning.

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Good morning, Your Honors.

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May it please the court?

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I think I've reserved two minutes for a rebuttal.

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I'm Steve Ellis.

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I represent Vermont Information Processing.

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We're appealing a decision of the National Labor Relations Board that was issued on November 5th of 2024.

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It relates to the termination by my client of four software developers.

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Mr. Bendell was terminated on February 16 of 2021.

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The other three, Mr. Dragoon, Mr. Swift, and Mr. Noble, were terminated two days later on February 18, 2021.

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I'd like to focus on two or three issues which potentially moot all of the other issues that have been raised in the briefs.

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And the first is the issue of uncharged conduct.

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The general counsel's complaint alleged that my client, VIP, fired all four of the charging parties because they, quote, engaged in concerted activities with each other and with other employees for the purposes of mutual aid and protection by creating and disseminating a spreadsheet where employees could view and share salary information

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But your honors, neither the ALJ nor the board found that Mr. Dragoon Swift or Mr. Noble were fired for that reason.

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The ALJ found and the board affirmed that those three were fired for their chat communications on a VIP work platform after the spreadsheet had been created and disseminated.

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General counsel never moved to amend the complaint either before, during, or after the ALJ hearing to charge that these chat communications were concerted protected activity or that firing those three for those chat communications violated the act.

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This theory appeared for the first time in the ALJ's decision itself, and that's at Joint Appendix 1739.

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VIP argued to the board that the ALJ's finding of a violation that was not charged or litigated violated VIP's due process rights.

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The board's decision doesn't address that argument at all, and this is a very fundamental constitutional problem.

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This court has repeatedly held

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we cannot affirm a decision made without a reasoned explanation.

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Without a reasoned explanation, it's impossible to determine whether the decision is supported by substantial evidence.

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Isn't the standard that it is well settled that the board may find and remedy a violation even in the absence of a specified allegation in the complaint if the issue is closely connected to the subject matter of the complaint and has been fully litigated?

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Well, that may... And it seems to me that what the ALJ did

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It was closely connected because it relied on the chat that was closely related to the spreadsheet and Bendel's firing, which allegedly was because of the spreadsheet.

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But I think what is a little bit more problematic for the board is that the NLRB cited workplace conditions.

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And I'm not clear on how that is something that was closely connected and fully litigated.

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Well, I'd like to get to that in a moment, Your Honor.

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But the problem is, the board didn't address this constitutional due process argument at all.

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And this court has held that a board decision is arbitrary if it fails to consider an important aspect of the problem.

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And this is an important aspect of the problem that we raised in our briefs to the board, that this is a violation of due process.

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But it's not a violation of due process, is it, if it's closely connected

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to the subject matter of the complaint and has been fully litigated.

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But we don't know what the board decided on that issue because they didn't address it at all.

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So it's an unreasoned opinion.

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We don't know if there's a reasoned explanation for it or an unreasoned explanation.

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There's no explanation for the board's failure to address.

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Wouldn't it be harmless air if there was no due process violation?

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It would be harmless air for the board to have not addressed why it was not a due process violation.

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I don't think you can get there, Your Honor, because the board has to address this problem.

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But let me get to... They adopted the ALJ's... Any that they didn't disagree with, they adopted in full the ALJ's findings, which means they adopted the ALJ reasoning that Judge Pan just referenced.

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Well, they didn't.

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They didn't specifically adopt the more specifically when they say we adopt everything that they said, except and then they have some footnotes.

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They adopted everything that they said, so they they did address it.

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They just addressed it away that they're entitled to address.

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District courts do it all the time with respect to magistrate judges.

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Again, Your Honor.

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And so that's the way they do it.

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We adopt what the ALJ said.

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Again, Your Honor, this was a very important argument that was raised before the board that this was a... They answered it.

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It's not important.

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Not important.

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They answered it.

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They said we adopt the ALJ's findings.

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Your whole argument to me so far has been...

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They didn't address it.

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In fact, they did address it when they adopted the AOJ's findings.

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I don't believe that's a reasoned decision, Your Honor.

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And this court, this court.

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If we're going to adopt, this is going to be like a thunderbolt decision.

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If we were to say the board cannot address or respond to arguments by simply adopting the AOJ's decision on all arguments raised except the ones that it specifically disagrees with.

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Do you have any evidence for that?

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They addressed some and they didn't all the time.

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I understand your honor, but this court has held repeatedly that if it's an important argument and the board fails to consider it, it can't be a firm this arbitrary.

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They say we've looked at how the ALJ dealt with this and we adopt its findings.

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That is considering it.

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I don't believe that's a reasoned decision, Your Honor, on an issue of this importance.

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But let me get to the issue that Judge Pan raised.

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The board's decision found that not only were these individuals terminated, not for the reason that was charged, but for their participation in a chat that discussed workplace conditions without discussing what workplace conditions the board determined to be protected activity.

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Isn't it obvious that the workplace condition at issue here that's tied up with the spreadsheet is

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the concern about getting underpaid.

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Well, there wasn't a charge here that being concerned about being underpaid.

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And that's what was so upsetting on the spreadsheet.

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And that's what they got upset about from Mr. Bendel was the spreadsheet had that line about developers underpaid 100%.

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But the charge, Your Honor.

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Workplace condition, right?

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The charge didn't charge that complaining about being underpaid is a protected activity.

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It was the content.

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It was the contents of the spreadsheet.

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But we can't, Your Honor, we can't tell from the board's decision.

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The workplace conditions that were discussed in that chat were... It says to Mr. Bendel's firing, J1053, Mr. Simar did not like that the spreadsheet conveyed the message to everybody that the programmers are all underpaid.

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That was his firing for the spreadsheet because it conveyed the message that all programmers or developers are underpaid.

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But your honor, the board's decision doesn't say which comments in the chat about workplace conditions were considered to be protected activity.

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All we need is one.

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And if they're definitely, the whole rationale for firing Mr. Bendel, the whole rationale that they were discussing was this concern about underpayment.

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it becomes self-evident.

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We don't require, you know, jot and tittle like that.

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But, Your Honor, there's one workplace condition that they were talking about.

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They were talking about lots of workplace conditions.

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Yes, but it included, one of them was concern about underpayment, and then Mr. Bendel got fired for the spreadsheet that included this line about underpayment.

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But it wasn't complaining about underpayment that was the protected activity.

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It was salary sharing.

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It was the act of salary sharing that was the protected activity that was charged.

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Mr. Bendal had been complaining about being underpaid for months.

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That was not the protected activity.

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We got Mr. Simard himself telling us.

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that what he didn't like about the spreadsheet was that not that it was a spreadsheet of salaries, but that it conveyed the message to everybody that programmers are all underpaid.

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That was his, that's what led him for the charge for firing, Mr. Bandel.

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But the workplace conditions.

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Is that an workplace condition?

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It might be, but what's also workplace conditions is the discussions in the chat that actually were the reasons that were why these three individuals were terminated, where they were saying, we're all leaving.

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We're trying to take another talented developer with us as we're leaving.

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They're saying, purge your computers.

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Nobody's disagreeing with that.

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The district court discredited as pretext.

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The concern about purging computers.

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I assume your company doesn't have a policy of firing people when they say, look, what's happened?

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We're going to think about leaving.

[00:09:59] Speaker 05:
That's not all that happened here, Your Honor.

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They said we're leaving, we're trying to recruit another developer to go with us.

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And these are highly skilled computer software engineers.

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They have access to the company's most sensitive IT infrastructure

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and data.

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They're trying to roll out a new restructuring of the development teams.

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And they now have three developers who are saying, we're on our way out the door.

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We're trying to take another developer with us.

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They're talking about purging their computers.

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One of them says, I'm downloading this confidential VIP document onto my personal Google account.

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What I'm trying to understand here is the stuff about purging

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The district court, or the district court, sorry, the ALJM board both discredited as pretext.

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So that's just not the basis for their firing.

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If it was pretext, it's pretext, not the basis for the termination of those three employees.

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And there was plenty of testimony that Vermont Info did not discourage people from looking for jobs if they were unhappy.

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Well, there's also plenty of testimony that Vermont information processing didn't discourage people from sharing salaries either.

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And the administrative workplace condition of underpayment, that was the trigger.

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But the administrative law judges finding on pretext was basically just the ALJ disagreeing with VIP as to what level of risk should be tolerable.

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I don't know.

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I think I think that's not fair.

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That is not fair.

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They said there was no indication whatsoever that anyone checked to see if computers have been purged ever, that that was not examined like you would if you thought somebody was purging computers.

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And the one person who said, let's purge your computers, boys, was Mr. Noble, whom everyone said was the hardest decision to make on termination.

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The other two didn't say it, didn't do anything.

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So they weren't purging anything, they weren't encouraging it, they didn't do anything, and their computers weren't examined.

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That is much more rationale than you are given the ALJ and the board credit for.

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Your Honor, the VIPs had software installed to monitor the systems perpetually.

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Some bugs that may be placed in the network, either intentionally or inadvertently, could be undetected for some time.

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The testimony was we monitor these things constantly.

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The fact that we haven't discovered any problem right now doesn't mean there might not be a problem.

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And why should we be retaining software developers who need to be entrusted with this level of access to our IT infrastructure and data if they're telling us?

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You can keep repeating the stuff that's been rejected evidentially as a basis for termination.

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Mr. Simmered said as to these three, if you have one or two people

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Poisoning the well and telling employees that they're underpaid, it starts to resonate further and undermine the happy culture he hoped to cultivate.

[00:13:09] Speaker 03:
Yes, and if you have this reason for termination, that sounds like it's very interwoven with the spreadsheet and very much a protected activity.

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Your honor, but it's not the protected activity that was charged and someone says is charged with an unfair labor practice.

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Let's say they're charged with.

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Preventing people and I.

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Talking about safety concerns on an assembly line, and they're discharged and that's an unfair labor practice.

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And the company comes in and says, oh, no, we discharged him because he was forming a union.

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Can the board then say, credit that and say, well, either way, it was an unfair labor practice?

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Well, the company never said that.

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I'm not saying you said that here, to be clear.

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This is a hypothetical.

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No evidence of that was said here at all.

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But if you have a charge on one thing and then the defense evidence comes forward and shows, in fact, the termination was for a different unfair labor practice,

[00:14:23] Speaker 05:
Well, that's important, Your Honor.

[00:14:25] Speaker 03:
I just want to legally answer this question, not a factual one, because this is a hypothetical.

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Can the board credit the unfair labor practice evidence put on by the employer?

[00:14:41] Speaker 05:
Well, hypothetically, I suppose the board could, but part of the problem here is we don't, we don't know what the board did here.

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And, and, and this brings us to another issue that was raised that was not addressed by the board.

[00:14:53] Speaker 01:
It seems to me, my understanding of your argument is that your client understood the ULP under consideration to be salary sharing and, and putting together a salary sharing spreadsheet and

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In defense, your client said, we didn't fire them because of the salary sharing.

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Look at this chat where they were saying all these disloyal

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other things that we didn't like.

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We wanted to find them because of stuff in the chat.

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And then the rug was pulled out from your defense when the board then said the chat that you relied on as your defense was the ULP, when it seemed to me that you were relying on the chat as a defense to the spreadsheet.

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Now, the aspects of the chat that were inextricably intertwined with the spreadsheet and salary sharing, I think, are covered by the case law that says it's not in the complaint, but if it's closely connected to the subject matter of the complaint, which was salary sharing and spreadsheet,

[00:15:59] Speaker 01:
it's been litigated, that would be okay.

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That's kind of what the ALJ did.

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But this workplace conditions thing kind of came out of the blue.

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And now they're relying on the chat talking about workplace conditions, and they don't even specify what workplace conditions they were talking about.

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And you didn't have an opportunity

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to address workplace conditions because you never knew that was an issue.

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When workplace conditions came into the picture at the NLRB stage, the hearing was over, the exceptions had been filed, all your arguments had been made, and then out of the blue, they were relying on workplace conditions, and you never had a chance to know what those were or what your arguments would have been against workplace conditions, ULPs.

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And I thought that was your argument.

[00:16:50] Speaker 05:
Well, that is my argument, your honor.

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And you can't tell from the board's opinion what the workplace conditions were that the board found were being discussed in the chat that were protected.

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Is the board saying

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that it is a protected activity for developers to be talking about, we're all gonna leave at the same time, we're gonna recruit another developer to go with us, we're gonna purge our computers, and we're sharing all of these discussions with a former employee who is now employed by a customer.

[00:17:22] Speaker 05:
Is that a protected activity because it's a discussion of workplace conditions?

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We can't tell from the board's decision because they didn't provide any reasoning around that decision.

[00:17:33] Speaker 03:
So for the two,

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Dragoon and Swift, who never mentioned purging computers.

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They didn't object either.

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Okay.

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All right.

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So now you want to say, is it unprotected activity to not object?

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to another employee's statement?

[00:17:59] Speaker 05:
Mr. Dragoon was a team lead.

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If a developer is saying, we're going to purge our VIP computers.

[00:18:06] Speaker 03:
That's not what he said.

[00:18:07] Speaker 03:
He said, it's pretty clear in context.

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He was saying, get rid of what we were saying about the spreadsheet, because Mr. Bendel just got fired for that.

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And that's how it was stood.

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And that's why it was all deemed pre-taxed by the ALJ.

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And so I want to get back to the point.

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your position that employers can lawfully fire employees for discussing with each other their unhappiness at work, their desire to leave work.

[00:18:42] Speaker 03:
Hey, you want to come with me?

[00:18:43] Speaker 03:
Either I know a good employer or we could, you know, they could bring someone with them for a lot of reasons, set up our own shop, or I got this great idea, this good company over here I heard is hiring.

[00:18:56] Speaker 03:
Is that

[00:18:58] Speaker 05:
My client certainly thought it was.

[00:19:02] Speaker 05:
As a matter of law.

[00:19:03] Speaker 05:
And as a matter of law, there's nothing that says it's not, and that's not what was charged in this case.

[00:19:11] Speaker 03:
In the absence of one thing that makes things an unfair labor practices if.

[00:19:16] Speaker 03:
You're not considered employers aren't consistent in their treatments and there was testimony that there was a program manager who said we don't object to people talking about leaving investigating options because we don't want someone here if they're unhappy.

[00:19:33] Speaker 03:
And so if you're inconsistent in how you apply something like that, then it would be.

[00:19:37] Speaker 05:
I don't think there's any evidence that there was any inconsistency in how this was applied.

[00:19:42] Speaker 05:
If you're trying to roll out a restructuring of the development teams, it requires everybody to be on board.

[00:19:48] Speaker 05:
And now you find out that

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three of your developers are not on board.

[00:19:52] Speaker 05:
In fact, I have a foot out the door and tend to leave and are trying to take other people with them and are discussing this with somebody who's employed by a customer and are talking about purging computers.

[00:20:03] Speaker 05:
And I'm sorry, your honor, developers, software developers talking about purging their employers' computers is unacceptable.

[00:20:11] Speaker 01:
The purging computer's point, there's kind of a factual finding by the ALJ that that was protectual.

[00:20:17] Speaker 01:
But taking another employee with you, can an employer fire an employee for trying to, I guess, poach another employee?

[00:20:26] Speaker 01:
Or is that protected?

[00:20:27] Speaker 05:
I don't see why that's protected.

[00:20:29] Speaker 05:
There's certainly no case law that says that that's protected.

[00:20:32] Speaker 01:
And again, that's not what's- That's not protected.

[00:20:34] Speaker 01:
And if that

[00:20:35] Speaker 01:
is a working condition that was the basis of this.

[00:20:38] Speaker 01:
I just think it's very unclear whether what the NLRB did was... Well, that's exactly my point, Your Honor.

[00:20:43] Speaker 05:
It is very unclear.

[00:20:45] Speaker 05:
And the board also did not address the other issue, which we raised before the board, which is the act does not require an employer to allow employees unfettered use of the employee's IT resources

[00:20:59] Speaker 05:
to even engage in protected activities, unless the employee- That's a separate question.

[00:21:04] Speaker 03:
So on this, just to stay back on this charging issue, a precedent requires a showing of prejudice.

[00:21:16] Speaker 03:
And what you said in your brief is, well, we would have put on other evidence, or if you said would have called other witnesses, but there's no specificity at all.

[00:21:30] Speaker 03:
as to what you would have either not done or done.

[00:21:35] Speaker 03:
What is your best case for a finding of prejudice being based simply on statements that we would have done things differently, not specifying substantively what story you would have put on?

[00:21:55] Speaker 05:
I think to begin with, Your Honor, if the charge had been that these three developers were unlawfully terminated because of their participation in this group chat, VIP would not have relied on the group chat as a defense to the charge.

[00:22:12] Speaker 05:
It would have put on an entirely different defense.

[00:22:14] Speaker 05:
and it would have zeroed in more on exactly, and frankly, there is evidence.

[00:22:20] Speaker 03:
What evidence would you have had of their disloyalty, their desire to recruit someone to go with them, other than the chat?

[00:22:29] Speaker 05:
We would have brought in the other employees that were parties to their earlier chats that were discovered after they were terminated.

[00:22:37] Speaker 05:
And this occurred weeks

[00:22:38] Speaker 03:
rely on stuff that you discover after they're terminated to prove the reason for termination.

[00:22:44] Speaker 03:
We can absolutely rely on what the people knew at the time they made the decision.

[00:22:48] Speaker 05:
To show their motive and what these individuals, how truly disloyal they were.

[00:22:53] Speaker 03:
If that's not evidence that the decision maker had at the time of the decision, you can't rely upon it.

[00:22:59] Speaker 03:
There's no after acquired evidence theory.

[00:23:03] Speaker 05:
No, well, there's, it doesn't have to be after required evidence.

[00:23:06] Speaker 05:
If we're trying to prove that these individuals, we're trying to extrapolate now from what we do know, which is we can see in this.

[00:23:12] Speaker 03:
What did the decision maker know at the time the decision was made?

[00:23:16] Speaker 03:
And that was all from the chat.

[00:23:19] Speaker 05:
And we knew that they were disloyal.

[00:23:21] Speaker 05:
And if we.

[00:23:21] Speaker 03:
From the chat.

[00:23:22] Speaker 05:
From the chat.

[00:23:23] Speaker 03:
So I'm really trying to understand for your prejudice showing here.

[00:23:28] Speaker 03:
if it seems to me the very thing that you want to rely on to demonstrate.

[00:23:35] Speaker 03:
that you would have relied on to demonstrate a different reason for their termination is the very chat that you put into evidence.

[00:23:43] Speaker 05:
Well, it's not a different reason.

[00:23:44] Speaker 05:
It's the very reason that management discussed and the reason that VIP has advanced all along why these individuals were terminated, because they were disloyal, because they couldn't be trusted.

[00:23:54] Speaker 03:
You advanced it all along.

[00:23:55] Speaker 03:
You put your evidence on.

[00:23:57] Speaker 03:
That's your point.

[00:23:58] Speaker 03:
That was our affirmative defense.

[00:23:59] Speaker 03:
It wasn't the spreadsheet.

[00:24:01] Speaker 05:
But if we if we had known that the chat itself was going to be deemed a protected activity and it's going to be deemed to be that would be and the the the the board specifically found that.

[00:24:17] Speaker 05:
that VIP monitoring and investigating this was not a violation in and of itself.

[00:24:25] Speaker 05:
So we found information.

[00:24:26] Speaker 05:
We relied on that information to fire these individuals.

[00:24:29] Speaker 05:
If we would have known that this whole chat was going to be considered the protected activity, we would have gone into a lot more evidence about exactly how disloyal these people were.

[00:24:40] Speaker 03:
And that again, I think we're going to show prejudice.

[00:24:44] Speaker 03:
You have to show

[00:24:47] Speaker 03:
What evidence.

[00:24:50] Speaker 03:
You would have put on for their termination that was before this decision maker at the time.

[00:24:56] Speaker 03:
So, and we know the decision maker tells us exactly what he was relying on here.

[00:25:02] Speaker 03:
Right.

[00:25:03] Speaker 03:
People poisoning the well and you're talking about the restructuring.

[00:25:06] Speaker 03:
So this is a particular point in time of sensitivity.

[00:25:09] Speaker 03:
All right.

[00:25:10] Speaker 03:
So you've got that here and you put the chat in.

[00:25:14] Speaker 03:
So it seems to me that it's not that you want to put on more evidence.

[00:25:18] Speaker 03:
You want to have a board finding about this legal question.

[00:25:24] Speaker 03:
of whether what they said in the chat was protected or not.

[00:25:28] Speaker 05:
Is that right?

[00:25:28] Speaker 05:
That's certainly something that the board ought to decide.

[00:25:31] Speaker 03:
That's a very different argument.

[00:25:33] Speaker 03:
Your argument in your brief was we would have put on different evidence.

[00:25:37] Speaker 03:
But it seems to me the basis for the decision for termination is right here, Mr. Simard's words.

[00:25:44] Speaker 03:
And that was from the evidence from the chat.

[00:25:48] Speaker 03:
And so your argument seems to be, in response to Judge Pan,

[00:25:55] Speaker 03:
not that we would have put on new evidence, but that the board needed to make a new legal finding about

[00:26:03] Speaker 03:
whether that was protected or not.

[00:26:05] Speaker 05:
It's both, Your Honor.

[00:26:07] Speaker 05:
It's both, Your Honor.

[00:26:08] Speaker 05:
If we had known that this chat itself was going to be considered the protected activity, and as Judge Pan has pointed out, we don't know exactly what about that the board is saying was the workplace conditions that was the protected activity.

[00:26:24] Speaker 05:
We don't know that.

[00:26:25] Speaker 05:
But had we known that, we would have not relied solely on

[00:26:29] Speaker 05:
We didn't fire them for creating and disseminating a salary spreadsheet because there's no evidence that these three actually did that.

[00:26:38] Speaker 05:
What we fired them for was their participation in this chat where they made these comments.

[00:26:47] Speaker 01:
Why isn't it the case that you wouldn't, if you had known

[00:26:51] Speaker 01:
that the chat was potentially a ULP, you would have parsed the chat more.

[00:26:56] Speaker 01:
Because what I'm confused about is which parts of this chat are allowed and which parts are not allowed and what are they relying on?

[00:27:08] Speaker 01:
It just seems to me that it is unclear.

[00:27:12] Speaker 01:
It's not just the chat because there's stuff within the chat that is protected and stuff that's not.

[00:27:19] Speaker 01:
And if you had known that this was part of the inquiry as to what was a ULP, wouldn't you have parsed the chat and figured out what was allowed, what was not allowed and maybe crafted your defense in response to that?

[00:27:33] Speaker 01:
And also, I believe.

[00:27:35] Speaker 01:
what happened was when you saw this chat, you also pulled up performance evaluations of each of these employees.

[00:27:41] Speaker 01:
And might you have relied more on performance evaluations now that in combination with the parts of the chat that were not protected, it just seems to me that

[00:27:51] Speaker 01:
If it was never on your radar screen that parts of this chat were going to be part of the ULP, you just would have done your defense differently.

[00:28:01] Speaker 05:
Absolutely, Your Honor.

[00:28:03] Speaker 05:
We would have had a completely different defense.

[00:28:05] Speaker 03:
I don't understand this.

[00:28:06] Speaker 03:
I'm still not getting this.

[00:28:08] Speaker 03:
If you don't get to just parse up the chat, the chat's going to be turned over to them.

[00:28:11] Speaker 03:
They're going to have it.

[00:28:12] Speaker 03:
It's a really bad strategy.

[00:28:13] Speaker 03:
Everyone knows to just pick your favorite pieces and put something in, knowing that the other stuff's going to come in from the other side.

[00:28:18] Speaker 03:
So this chat was coming in, and it was in.

[00:28:21] Speaker 03:
And the performance evaluations were not anything that Mr. Simard relied on in making the firing decision.

[00:28:27] Speaker 03:
We have that testimony, right?

[00:28:29] Speaker 03:
And so I don't know why those would have been relevant.

[00:28:31] Speaker 03:
It seems to me your argument is not an evidentiary one.

[00:28:35] Speaker 03:
It is the one that Judge Pan was referencing, which is there's a lot of stuff going on in this chat.

[00:28:44] Speaker 05:
Right.

[00:28:45] Speaker 03:
What was protected, what was not.

[00:28:47] Speaker 03:
And we want to point to the parts when Mr. Simmert said that there's poisoning the well and destroying the happy culture at the workplace.

[00:29:00] Speaker 03:
And I take that the I'm unhappy, want to leave as the poisoning well.

[00:29:06] Speaker 03:
There needed to be a legal ruling by the board.

[00:29:11] Speaker 05:
Two things.

[00:29:13] Speaker 05:
Number one, Mr. Samard also testified that he was very disturbed when the statement by, I believe it was Mr. Swift in his performance review was read at the manager's meeting where Mr. Swift said, I have no loyalty to VIP.

[00:29:30] Speaker 05:
In the context now of this chat, that was very concerning.

[00:29:33] Speaker 03:
Was that right before this event or when was the date?

[00:29:36] Speaker 05:
That was in his last performance review.

[00:29:38] Speaker 03:
How long before this event?

[00:29:39] Speaker 05:
I don't know, months.

[00:29:41] Speaker 05:
But it was something that hadn't come to Mr. Samard's attention until they were focusing on these chats.

[00:29:47] Speaker 05:
But this is exactly the problem.

[00:29:49] Speaker 05:
You know, the VIP is looking at... Do you want a legal ruling from the board as to what was protected or not protected?

[00:29:56] Speaker 05:
I think at a minimum, we need that, Your Honor.

[00:29:59] Speaker 05:
At a minimum, we need that.

[00:30:00] Speaker 01:
Cause couldn't you have focused your defense on the parts of the chat that are not protected, like trying to poach another employee combined with the performance review, lack of loyalty.

[00:30:10] Speaker 01:
I mean, it just seems like you could have crafted something if you had known that parts of the chat were going to be ULPs.

[00:30:20] Speaker 01:
You could have figured out which ones were not protected and tried to emphasize those more.

[00:30:26] Speaker 01:
It just, I don't know, it just seems to be very unclear to me as a not a labor expert what parts of that chat reflect protected activity, what parts were not protected, and what's a working condition in the context of this chat.

[00:30:41] Speaker 01:
I don't understand it.

[00:30:42] Speaker 05:
And this is exactly the problem, and I'd like to leave the court with this.

[00:30:47] Speaker 05:
This is the problem that VIP was confronted with.

[00:30:50] Speaker 05:
We have employees who are engaged in unprotected activity that makes VIP feel a lack of confidence, lack of trust in these developers with the access that they need to have to VIP's infrastructure.

[00:31:05] Speaker 05:
But these employees have also engaged in a protected activity.

[00:31:08] Speaker 05:
of salary sharing.

[00:31:09] Speaker 05:
And VIP recognizes that.

[00:31:12] Speaker 05:
So what is VIP supposed to do?

[00:31:15] Speaker 05:
They did the only thing they could do.

[00:31:17] Speaker 05:
They fired these employees for the unprotected activity.

[00:31:21] Speaker 05:
And then they went to their workforce repeatedly and said, we do not have a policy against salary sharing.

[00:31:27] Speaker 05:
You are free to share salaries.

[00:31:29] Speaker 05:
That's not the problem here.

[00:31:31] Speaker 05:
The problem here with Mr. Bendell is the way he did it, publishing this unattributed

[00:31:36] Speaker 05:
spreadsheet.

[00:31:38] Speaker 04:
I remember that from the record.

[00:31:39] Speaker 04:
I suspect that my colleagues do as well.

[00:31:42] Speaker 04:
Is there anything in the record about VIP firing people in the past for disloyalty or disparagement of management?

[00:31:52] Speaker 04:
And this is not a totally hostile question.

[00:31:54] Speaker 04:
Just whatever.

[00:31:55] Speaker 04:
Answer it accurately.

[00:31:57] Speaker 05:
I think the testimony in the ALJ hearing was VIP had never seen anything like this before.

[00:32:03] Speaker 04:
Oh, OK.

[00:32:05] Speaker 04:
And as I understand it, on page 29 to 30 of your brief, you go through at least three different strategic tactical things you would have done differently if this conduct had been charged before it was too late.

[00:32:21] Speaker 04:
Am I right about that?

[00:32:22] Speaker 04:
That's correct, Your Honor.

[00:32:24] Speaker 04:
Can I now go to the totally different topic, Bendel?

[00:32:28] Speaker 04:
And you.

[00:32:32] Speaker 04:
say that he was fired not for the spreadsheet's inclusion of salaries, but he was fired because the spreadsheet was misleading and confusing.

[00:32:45] Speaker 04:
Right?

[00:32:46] Speaker 05:
And a little bit more, your honor.

[00:32:48] Speaker 05:
It was the timing of the whole thing.

[00:32:50] Speaker 05:
Mr. Bendell had had his meeting with his supervisors the day before where they talked to him about the restructuring and his role in the restructuring.

[00:32:59] Speaker 05:
And he had been given a free agent role because management was already concerned that he had a foot out the door and he might not be sticking around.

[00:33:05] Speaker 05:
He didn't respond well to that.

[00:33:08] Speaker 05:
He used a scatological term to refer to how those meetings went.

[00:33:11] Speaker 05:
They didn't go well.

[00:33:13] Speaker 05:
So he was already on thin ice.

[00:33:16] Speaker 05:
They didn't make any decision about what to do about that at that point except go forward with the rollout of the restructuring and then decide based on his response to that, maybe we need to revisit Mr. Bendel.

[00:33:30] Speaker 05:
They have the meeting on the morning of the 16th to roll out the restructuring almost immediately after this meeting, this spreadsheet appears.

[00:33:38] Speaker 05:
And it's brought to senior management by a supervisor who says one of his developers has come to him and says, what is this?

[00:33:46] Speaker 05:
He doesn't know what it is.

[00:33:47] Speaker 05:
The manager doesn't know what it is.

[00:33:49] Speaker 05:
They're wondering if it's a VIP initiative.

[00:33:52] Speaker 05:
Management goes into the system.

[00:33:54] Speaker 05:
They see that Mr. Bendell created this the day before.

[00:33:58] Speaker 05:
They can see that it's not clear.

[00:34:01] Speaker 05:
There's no attribution about where it's coming from.

[00:34:04] Speaker 05:
It's on a VIP active document on a VIP server.

[00:34:08] Speaker 05:
They don't know exactly how this has been shared.

[00:34:11] Speaker 05:
But they also can see that he has hard coded it so that no matter what data gets put into this spreadsheet is going to produce this result that says 100% of developers are underpaid.

[00:34:22] Speaker 05:
They say Bendel is trying to disrupt the restructuring because he doesn't like it.

[00:34:27] Speaker 05:
He doesn't like the role that he was in.

[00:34:29] Speaker 05:
We're going to take down this spreadsheet while we investigate it.

[00:34:32] Speaker 05:
And again, the board didn't find that taking down the spreadsheet was an unfair labor practice.

[00:34:37] Speaker 05:
And we're going to fire Mr. Bendel.

[00:34:40] Speaker 05:
And then we're going to go to our workforce, and we're going to tell them, look, salary sharing is not the problem.

[00:34:45] Speaker 05:
You can share your salaries.

[00:34:46] Speaker 05:
We assume that's what you're doing.

[00:34:47] Speaker 05:
The problem was what Mr. Bendel did with this document.

[00:34:51] Speaker 05:
That's not OK.

[00:34:52] Speaker 05:
And again, we briefed this issue.

[00:34:54] Speaker 01:
That's because of that one statement that they're all underpaid, because he didn't make that statement.

[00:35:00] Speaker 01:
It was somebody else who added that.

[00:35:01] Speaker 01:
Whoever added that.

[00:35:03] Speaker 05:
No, Mr. Bendell made that.

[00:35:05] Speaker 05:
At least the ALJ found that management reasonably believed that Mr. Bendell did that.

[00:35:11] Speaker 05:
That he's the one who had hardcoded it.

[00:35:13] Speaker 05:
Is that the only problem with the spreadsheet?

[00:35:16] Speaker 05:
No, no, that's not the only problem with it.

[00:35:18] Speaker 05:
The biggest problem with it was the timing of it.

[00:35:21] Speaker 05:
It was a VIP document.

[00:35:23] Speaker 03:
Wait, the timing?

[00:35:25] Speaker 03:
So no one was allowed to discuss salaries during the rollout?

[00:35:29] Speaker 03:
to put out a spreadsheet.

[00:35:31] Speaker 03:
I'm asking the question, you just said timing.

[00:35:33] Speaker 03:
Of course, people can discuss salaries.

[00:35:35] Speaker 03:
Including during this rollout or restructuring.

[00:35:38] Speaker 05:
Absolutely, people can discuss salaries.

[00:35:39] Speaker 05:
That's not the problem.

[00:35:41] Speaker 05:
That's not the problem.

[00:35:41] Speaker 05:
The problem was all of a sudden, instead of focusing on the rollout,

[00:35:45] Speaker 05:
Developers are looking at this spreadsheet.

[00:35:47] Speaker 05:
They don't know if it's a management initiative.

[00:35:50] Speaker 05:
They don't know what it is.

[00:35:51] Speaker 05:
They're confused about it, which is why it came to the attention of VIP management.

[00:35:57] Speaker 05:
And then they can see that it's got inaccurate information on it.

[00:36:00] Speaker 05:
It's clear that this is Bendel's.

[00:36:02] Speaker 04:
What's the inaccurate information?

[00:36:04] Speaker 05:
some of the salaries were inaccurate and the the way that the uh that bendell had programmed it so that no matter what data was put in it would produce this statement that 100 percent of developers are are underpaid it's a program or someone just type people were just typing information in so someone just typed information i mean you look at it it's not mathematically changing it's someone just typed in that statement

[00:36:28] Speaker 05:
Bendel hard-coded it, so no matter what data was put in, it would produce that same result.

[00:36:34] Speaker 04:
Can you explain that a little bit more?

[00:36:36] Speaker 04:
There's a screenshot of the spreadsheet in the record, but it's a screenshot, and as you know, with spreadsheets, each cell may well

[00:36:45] Speaker 04:
have a formula that leads to what you see on the screen, you don't always see the formula.

[00:36:52] Speaker 04:
What was the hard-coded formula in the spreadsheet that caused it to always show that 100% of developers were underpaid?

[00:37:00] Speaker 05:
I'm not a coder myself.

[00:37:03] Speaker 05:
I can't provide the technical explanation for that.

[00:37:05] Speaker 05:
But what I can tell you is there's undisputed evidence on the record that management went into this spreadsheet and they could see that Mr. Bendel is the one who had hard coded this.

[00:37:15] Speaker 05:
So no matter what data went in, it would produce the same result.

[00:37:18] Speaker 05:
That's what management saw.

[00:37:22] Speaker 04:
You lost me almost to the game, so you're not a coder yourself.

[00:37:25] Speaker 04:
I mean, I'm not a coder either.

[00:37:27] Speaker 04:
I can barely turn on my computer.

[00:37:29] Speaker 04:
I'm definitely not like Java coding some software program.

[00:37:34] Speaker 04:
But I know that with a spreadsheet, you can put in cell one plus cell two.

[00:37:44] Speaker 04:
And if that's the formula for cell three, then cell one's one and cell two is two, cell three is going to say three.

[00:37:52] Speaker 05:
And you can put in a formula, so no matter what goes in, two plus five is going to be six.

[00:37:58] Speaker 05:
Exactly.

[00:37:58] Speaker 05:
So that was the formula.

[00:38:00] Speaker 05:
I don't know what the formula was.

[00:38:02] Speaker 05:
But that was the conclusion of management, is that that is effectively what Mr. Bendel had done.

[00:38:07] Speaker 05:
And by the way, there's other evidence, too, that contemporaneously with this coming on, there was another developer who was complaining that she was trying to put her salary in this spreadsheet, and Bendel kept messing around with the formula.

[00:38:21] Speaker 05:
So this is what's going on while people are... Did management know that before they fired Mendel?

[00:38:26] Speaker 04:
No, they found that out as part of the labor investigation.

[00:38:30] Speaker 04:
I'm going to go back to this because it matters to me.

[00:38:32] Speaker 04:
I hear you saying it shouldn't matter to me and it doesn't matter to you, but it matters to me.

[00:38:37] Speaker 04:
If the bottom of the spreadsheet had just had a cell that said, hey, everybody, in my opinion, we're all underpaid,

[00:38:46] Speaker 04:
That, I think, would not be especially confusing or inaccurate, because it's an opinion.

[00:38:51] Speaker 04:
An opinion can't be inaccurate.

[00:38:53] Speaker 04:
And it wouldn't be confusing.

[00:38:54] Speaker 04:
It's actually not at all a subtle point that that person would be making.

[00:38:58] Speaker 04:
But if, on the other hand, that cell is something that a viewer of the spreadsheet thinks, OK, this is the product of a mathematical formula based on whether the salaries that are entered are high or low,

[00:39:10] Speaker 04:
then I think it's pretty confusing.

[00:39:12] Speaker 04:
They think that that cell could possibly say something other than 100% are underpaid.

[00:39:20] Speaker 04:
So you haven't given me anything to help me think that it's the second of those scenarios and not basically just a bumper sticker that says we're all underpaid.

[00:39:30] Speaker 04:
Can you give me anything?

[00:39:31] Speaker 05:
I can tell you that management, and these are people who know all about

[00:39:35] Speaker 05:
you know, entering data in spreadsheets and how to make spreadsheets.

[00:39:38] Speaker 03:
Their conclusion was that what Bandel had done was the second scenario, was that he had created... Comparing it to... I mean, you can't have a statement, you couldn't have a mathematical formula computing underpaid status unless you're comparing it

[00:39:55] Speaker 03:
to other salaries?

[00:39:57] Speaker 03:
Was there any input anywhere in this document that showed what other developers and other places are getting paid?

[00:40:05] Speaker 05:
Well, that's part of the problem.

[00:40:07] Speaker 03:
No, no, no, no.

[00:40:07] Speaker 03:
This is a yes or no question.

[00:40:09] Speaker 03:
Was there anything in this spreadsheet that would allow a computer to then make a computation but always have this one number come out to compare these salaries?

[00:40:21] Speaker 03:
No, Your Honor.

[00:40:21] Speaker 03:
Absolutely not.

[00:40:22] Speaker 03:
So it was just typed in.

[00:40:23] Speaker 03:
It was a bumper sticker.

[00:40:25] Speaker 03:
Well, but part of the, you can't decide other underpaid unless you have a comparison.

[00:40:29] Speaker 05:
If I could answer your question, Your Honor, there was absolutely nothing in this spreadsheet that said underpaid as compared to what?

[00:40:35] Speaker 05:
You're absolutely right.

[00:40:36] Speaker 05:
But it also wasn't.

[00:40:37] Speaker 03:
There's nothing to compute underpaid.

[00:40:39] Speaker 05:
But it also wasn't.

[00:40:40] Speaker 05:
This is Chris Bendell voicing my opinion that 100% of developers are underpaid.

[00:40:46] Speaker 05:
It had no attribution.

[00:40:48] Speaker 05:
It wasn't clear where this was coming from, what its purpose was, and developers now are entering their confidential salary information on this spreadsheet.

[00:40:57] Speaker 01:
It seems to me that even if you had a color-bolt argument as to why what your client did was justified,

[00:41:05] Speaker 01:
That doesn't mean that there wasn't substantial evidence to support the ALJ's determination, which relied on credibility and evidence in the record, that that's not really what was going on here.

[00:41:16] Speaker 01:
That Bendel was dismissed because of the spreadsheet and all this other stuff that you're saying.

[00:41:25] Speaker 01:
The ALJ found it was pretextual or not really what happened.

[00:41:29] Speaker 01:
And there's substantial evidence to support that based on the timing of his firing, et cetera.

[00:41:35] Speaker 01:
So, even if you do have a colorable argument here, that's not the analysis before us.

[00:41:41] Speaker 01:
We just have to determine if there's substantial evidence for the ALJ's contrary finding that that's really not what happened.

[00:41:48] Speaker 01:
Everything you're saying is pretextual and what really happened was you were unhappy that he created the spreadsheet, disseminated the spreadsheet, you fired him for it, and all this other stuff is actually not correct.

[00:42:00] Speaker 01:
the real reason.

[00:42:01] Speaker 05:
Thank you, Your Honor.

[00:42:01] Speaker 05:
And this is where you have, with respect to Mr. Bendell, this is where you have to look at what the ALJ actually found and what the board actually found.

[00:42:11] Speaker 05:
VIP has never disputed that they fired Mr. Bendell because he put up this spreadsheet.

[00:42:17] Speaker 05:
That's exactly what he did that led to his termination.

[00:42:23] Speaker 05:
What they have disputed all along is that the termination was motivated by any kind of a retaliatory animus

[00:42:29] Speaker 05:
towards salary sharing.

[00:42:31] Speaker 05:
And this is the important distinction.

[00:42:32] Speaker 05:
And I think it's a distinction that the board made when they said, we are not adopting the ALJ's finding that merely taking down the spreadsheet is evidence of retaliatory animus.

[00:42:43] Speaker 05:
So they're not relying on that.

[00:42:45] Speaker 05:
So where is the evidence that VIP was motivated by retaliatory animus?

[00:42:50] Speaker 01:
Does it have to be retaliatory animus for those reasons?

[00:42:53] Speaker 01:
I mean, just firing somebody for doing a salary sharing spreadsheet

[00:42:58] Speaker 01:
That's protected conduct.

[00:43:00] Speaker 01:
The spreadsheet was salary-sharing.

[00:43:02] Speaker 05:
The spreadsheet was a spreadsheet.

[00:43:04] Speaker 05:
Salary-sharing is salary-sharing.

[00:43:06] Speaker 01:
The spreadsheet was a form of salary-sharing.

[00:43:09] Speaker 01:
Everybody puts your salaries in the spreadsheet.

[00:43:12] Speaker 01:
They're sharing their salary.

[00:43:13] Speaker 01:
And part of the problem with that... And firing somebody for that spreadsheet is a ULP.

[00:43:18] Speaker 01:
And I guess on the right line, you could say we would have fired him anyway for these other reasons.

[00:43:23] Speaker 01:
But the ALJ said those other reasons are protectual and we don't credit it.

[00:43:27] Speaker 05:
Well, this is why we need to get to what the other reasons were.

[00:43:31] Speaker 01:
And I think that's a different.

[00:43:33] Speaker 01:
So the chat is really not about Bendell.

[00:43:35] Speaker 01:
It's about the trio.

[00:43:37] Speaker 01:
And that's different.

[00:43:38] Speaker 05:
That's different.

[00:43:39] Speaker 01:
But Bendell, I think, is very straightforward.

[00:43:41] Speaker 01:
It's, ALJ says, you fired this guy because of salary sharing.

[00:43:46] Speaker 01:
And you admit that it was salary sharing.

[00:43:48] Speaker 01:
So under right line step two, you have to say, we would have fired him even if he hadn't done the salary sharing.

[00:43:53] Speaker 01:
And the record's very thin on why you would have done that, because you had not done so.

[00:43:58] Speaker 01:
Even after he had these problematic interactions with his supervisors, you hadn't fired him.

[00:44:02] Speaker 05:
If this spreadsheet had had nothing to do with salary sharing but had been sports betting or something else that's not protected, it would have been the same thing because he was disrupting the restructuring with this spreadsheet.

[00:44:15] Speaker 01:
I understand, but the ALJ discredited you.

[00:44:16] Speaker 01:
That's what you say, but the ALJ said no, it was because it was salary sharing.

[00:44:20] Speaker 05:
But the ALJ relied on taking down the spreadsheet, which the board said is not evidence of retaliatory animus,

[00:44:27] Speaker 05:
The only other, the board didn't say what other evidence of retaliatory animus the board found.

[00:44:34] Speaker 05:
What the ALJ said is shifting explanations.

[00:44:38] Speaker 01:
I thought it was your burden under right line step two to say that you would have fired him anyway.

[00:44:42] Speaker 01:
even though you did fire him in part because of salary sharing, I thought right line says, you're supposed to now prove despite that we were going to fire him anyway.

[00:44:51] Speaker 01:
And the ALJ said, no, you weren't.

[00:44:54] Speaker 01:
And it's supported by substantial.

[00:44:55] Speaker 05:
Yes.

[00:44:55] Speaker 05:
But to make a prima facie case, the board initially has to prove that it was motivated by retaliation.

[00:45:00] Speaker 01:
I thought you conceded that.

[00:45:01] Speaker 01:
Well, you conceded that it was because of the spreadsheet, which is salary sharing.

[00:45:05] Speaker 05:
But not because of salary sharing.

[00:45:06] Speaker 03:
And this is the- I think- I think- Do you have more on this?

[00:45:11] Speaker 04:
No.

[00:45:11] Speaker 04:
We have one more question over here.

[00:45:14] Speaker 04:
You said a few minutes ago that the management of the company understood the 100% underpaid sell to be the product of a coded formula.

[00:45:28] Speaker 04:
Where can I find in the record that that's what management

[00:45:32] Speaker 05:
I don't have that site in front of me, but it certainly is cited in our briefs in the statement of facts.

[00:45:38] Speaker 05:
It would be in... Respondents exhibit... I'll save you time, or you save me the time.

[00:45:45] Speaker 04:
Can you tell me... Respondents exhibit 40.

[00:45:47] Speaker 04:
You can tell me on rebuttal.

[00:45:48] Speaker 03:
On rebuttal, you can bring that in.

[00:45:49] Speaker 04:
On rebuttal, you just tell me the JAH.

[00:45:51] Speaker 04:
I'll do that.

[00:45:52] Speaker 04:
I'll do that.

[00:45:52] Speaker 04:
Thank you, Your Honor.

[00:45:53] Speaker 00:
Thank you very much.

[00:45:58] Speaker 00:
Thank you.

[00:45:58] Speaker 00:
Mr. Soder?

[00:46:08] Speaker 02:
Hello, Your Honors.

[00:46:09] Speaker 02:
May it please the Board, Rex Soterra for the L.F.B.

[00:46:12] Speaker 02:
Um, so this is about as straightforward and as classic cases you're likely to encounter.

[00:46:19] Speaker 02:
This case involves four employees.

[00:46:22] Speaker 02:
I saw that in your brief.

[00:46:23] Speaker 04:
I mean, you've already heard two judges who don't.

[00:46:26] Speaker 04:
Did I say that?

[00:46:27] Speaker 04:
You said in your brief, this is like the most straightforward case ever.

[00:46:31] Speaker 04:
We could decide this in our sleep.

[00:46:34] Speaker 04:
But we've already heard two of us express some pretty serious skepticism.

[00:46:39] Speaker ?:
Okay.

[00:46:40] Speaker 03:
You want to address the charging issue?

[00:46:43] Speaker 02:
Sure.

[00:46:44] Speaker 03:
Unless my colleagues prefer something different.

[00:46:46] Speaker 02:
Well, maybe the simplest way to do it is there was the issue, as you noted, of Bendel and the issue of the TRIO.

[00:46:54] Speaker 02:
I didn't hear the core.

[00:46:56] Speaker 02:
Can we talk about the chat?

[00:46:58] Speaker 01:
Can you tell us in that chat what was protected, what was not, and what was the working condition?

[00:47:04] Speaker 02:
So, Your Honor, the board found that what the employees were fired for, what the trio was fired for, was discussing salaries, working conditions, and discussing Bendel's firing.

[00:47:16] Speaker 02:
What are the working conditions in that chat?

[00:47:19] Speaker 02:
In that chat, I mean, frankly, I think it's the salaries issue.

[00:47:24] Speaker 02:
I think the board probably repeated itself in that sense.

[00:47:26] Speaker 04:
I think it's the salary issue.

[00:47:28] Speaker 04:
Can you first give the JA, pull up the chat and say what exactly was protected and what exactly was not protected?

[00:47:37] Speaker 04:
Unless you have a photographic memory, I think you're going to need the JA for this.

[00:47:42] Speaker 02:
No, I can actually.

[00:47:45] Speaker 02:
There are different parts of the chat.

[00:47:51] Speaker 02:
For example, talking about quitting, talking about job hunting, that's not protected.

[00:47:55] Speaker 04:
I want to follow you along word for word.

[00:47:58] Speaker 04:
What page of the JA am I supposed to be in?

[00:48:00] Speaker 02:
Okay, so this is in the SJA.

[00:48:04] Speaker 02:
Oh, no, I'm sorry.

[00:48:04] Speaker 02:
My bad.

[00:48:05] Speaker 02:
I have it in yesterday, but I have the numbers so 1111.

[00:48:09] Speaker 03:
You guys are starting.

[00:48:12] Speaker 04:
At 1249, maybe 1111 might be a better one.

[00:48:17] Speaker 03:
Okay.

[00:48:18] Speaker 03:
What page do you want to start on?

[00:48:20] Speaker 02:
So, so the.

[00:48:21] Speaker 02:
As I have it, the, it starts on 1158.

[00:48:29] Speaker 02:
the chat and it continues through 1201.

[00:48:57] Speaker 03:
So are you starting at 1158?

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

[00:49:01] Speaker 03:
The chat starts long before that.

[00:49:05] Speaker 02:
The chat starts, it's exhibit 14.

[00:49:08] Speaker 02:
It starts with, why is Caleb not lead of WMS?

[00:49:14] Speaker 01:
What's all the stuff before it that also looks like chat?

[00:49:17] Speaker 03:
Is that not irrelevant, Pat?

[00:49:18] Speaker 03:
Is that a different problem?

[00:49:20] Speaker 03:
Let me look.

[00:49:44] Speaker 01:
It's like there's a different chat that's exhibit 10 that starts at 1132.

[00:49:52] Speaker 02:
Right so 1156 57 that's a different chat that's exhibits.

[00:50:01] Speaker 02:
Not sure if it's exhibit.

[00:50:03] Speaker 02:
I think it may be it is exhibit 12 actually and then even the one that you said starts at 1158.

[00:50:08] Speaker 04:
I could be wrong, but it looks like that chat.

[00:50:12] Speaker 04:
in the two line includes Bendell and a lot of Bendell statements in the chat.

[00:50:18] Speaker 04:
But I thought the chat that they were fired for was the chat that happened after Bendell was fired.

[00:50:25] Speaker 02:
No, Your Honor, Bendell was fired in the course of the chat.

[00:50:30] Speaker 02:
The chat that they were fired about.

[00:50:32] Speaker 04:
Bendel was literally chatting with them.

[00:50:34] Speaker 02:
Bendel was chatting with them.

[00:50:35] Speaker 02:
He finds out he's fired.

[00:50:36] Speaker 02:
Yeah.

[00:50:37] Speaker 02:
Well, he disappears.

[00:50:38] Speaker 02:
The others find out.

[00:50:39] Speaker 02:
At some point in that chat, one of them says, oh my god, Bendel's account has been locked out.

[00:50:44] Speaker 02:
What's happening?

[00:50:45] Speaker 02:
And the others go, what the hell?

[00:50:47] Speaker 02:
OK.

[00:50:49] Speaker 02:
And then later on, they say, it's official.

[00:50:53] Speaker 02:
Bendel's been fired.

[00:50:55] Speaker 02:
And that's where you have the perjure computer's comment.

[00:50:58] Speaker 02:
So all of this happens.

[00:51:01] Speaker 02:
What happens is the spreadsheet, Bendel and Noble have their conversation about the spreadsheet on one day.

[00:51:07] Speaker 02:
I think it's the 16th.

[00:51:10] Speaker 04:
What page is the percher?

[00:51:11] Speaker 04:
Because again, I originally had 1249.

[00:51:13] Speaker 04:
That includes the percher computers.

[00:51:16] Speaker 04:
But there may be a better chat that you're describing, a more relevant chat.

[00:51:22] Speaker 04:
They also say percher.

[00:51:40] Speaker 02:
The purchase computers is at 1197.

[00:51:41] Speaker 01:
It's also at 1249.

[00:51:46] Speaker 03:
Yeah, that's an affidavit from somebody from the beginning.

[00:51:55] Speaker 04:
Okay, so this is this thing on 1197.

[00:52:00] Speaker 04:
By this point, Vindel is gone from the chat.

[00:52:03] Speaker 02:
Yeah, if you read if you read actually the the

[00:52:09] Speaker 02:
The page before, at the very top, Dragoon says he was actually fired.

[00:52:14] Speaker 04:
OK.

[00:52:15] Speaker 04:
And then this is the chat that these other three were fired for?

[00:52:21] Speaker 04:
Yes.

[00:52:21] Speaker 04:
OK.

[00:52:21] Speaker 04:
And then going to Judge Pan's question, and thanks for helping me get on the right page.

[00:52:26] Speaker 04:
Sure.

[00:52:26] Speaker 04:
I may have been looking at a copy of the page.

[00:52:30] Speaker 04:
What's the protected activity?

[00:52:32] Speaker 04:
What's the unprotected activity?

[00:52:35] Speaker 01:
Right.

[00:52:35] Speaker 01:
Which page are we on?

[00:52:37] Speaker 02:
Well, just one point to start.

[00:52:40] Speaker 02:
I've heard Mr. Ellis and the court say the chat was protected.

[00:52:44] Speaker 02:
No, there are statements in the chat that are unprotected.

[00:52:49] Speaker 01:
That's what we're asking.

[00:52:50] Speaker 02:
You never said the whole thing was protected.

[00:52:53] Speaker 02:
Mr. Ellis certainly said that if we had known that the chat was the ULP.

[00:52:58] Speaker 01:
Our question to you is what parts of the chat are protected and which parts of the chat are not?

[00:53:02] Speaker 02:
The parts about salary sharing, about where they discuss salaries, where they discuss the spreadsheets, and where they discuss Bendel's termination.

[00:53:09] Speaker 02:
That's what the board found.

[00:53:10] Speaker 02:
They were fired for discussing their salaries, the spreadsheet, and Bendel's termination.

[00:53:14] Speaker 01:
So discussing somebody else's termination is protecting conduct?

[00:53:16] Speaker 01:
I'm sorry?

[00:53:17] Speaker 01:
Is generally discussing somebody else's termination protected conduct?

[00:53:20] Speaker 02:
No, but discussing somebody's termination for engaging in protected conduct certainly is.

[00:53:25] Speaker 02:
And conduct that you have engaged in yourself because you participate in the creation or dissemination of that spreadsheet.

[00:53:31] Speaker 04:
So going to page 1196, the third line from the bottom says Jesus F in blank.

[00:53:48] Speaker 04:
Is that protected activity?

[00:53:52] Speaker 04:
Can you fire someone for saying that?

[00:53:55] Speaker 02:
You certainly can, Your Honor.

[00:53:56] Speaker 02:
But not when it's intrinsically linked and part of an entire discussion of salaries and of a guy being fired for protected conduct.

[00:54:08] Speaker 02:
This is what

[00:54:11] Speaker 01:
VIP tries to do they basically try to sort of gerrymander in and out the sentences that may not be protected that are not protected like job hunt saying your job hunting that's not protected if we could just stick with our questions but that's what is the chat portion that says let's take fun with us that's a really good programmer let's all quit and let's take him with is that protected

[00:54:32] Speaker 02:
No, on its own, it's not.

[00:54:33] Speaker 02:
But in the context, when they are talking about Fung doesn't get paid enough, he should come with us, and all of that, then you have, the board recognizes, and I think this- What are working conditions?

[00:54:46] Speaker 01:
Like in this discussion of all these different things, what's the working condition within this chat?

[00:54:52] Speaker 02:
I think, like I said, the salaries and the fact that one of their colleagues just got fired for engaging in protected activity, which they know is illegal, and that they are now afraid that they might get fired for the same reason.

[00:55:06] Speaker 01:
But you're just inferring that.

[00:55:07] Speaker 01:
I mean, I guess the issue is...

[00:55:12] Speaker 01:
When the NLRB issues its opinion, all of a sudden it's injected working conditions into the discussion, where I think the position of your friend is, we never knew working conditions was a ULP we had to contend with.

[00:55:24] Speaker 01:
And you're saying, I assume that the working conditions are the same ones as the salary, but how do we know that?

[00:55:30] Speaker 01:
Because there's pretty extensive chat now that I'm looking at it.

[00:55:33] Speaker 01:
It's very many pages.

[00:55:34] Speaker 01:
And there are things, I don't know if it's the same chat or other one, there are things like F management, like all these different things.

[00:55:39] Speaker 01:
And I just don't know.

[00:55:41] Speaker 01:
what these people, what the NLRB held was appropriate or not.

[00:55:48] Speaker 01:
Once you inject working conditions that there's never been any discussion of working conditions in the entire record, I don't understand where we are.

[00:55:55] Speaker 02:
When the board adopts the ALJ's finding and says they were talking about salary, about, you know, salary sharing.

[00:56:04] Speaker 01:
The ALJ didn't rely on working conditions.

[00:56:06] Speaker 02:
Well, working conditions is whatever the ALJ discussed.

[00:56:11] Speaker 02:
Right.

[00:56:11] Speaker 02:
Whatever's in there.

[00:56:12] Speaker 01:
And the, I mean, anything in ALJ discusses in any NLRB case, no working conditions.

[00:56:18] Speaker 01:
The ALJ didn't rely on working conditions.

[00:56:21] Speaker 02:
The ALJ relied on people complaining about being underpaid, which is undeniably a working condition.

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

[00:56:28] Speaker 01:
And since it is a working condition, I don't know if there are other working conditions in the chat that

[00:56:35] Speaker 01:
could form the basis of the NLRB's finding, because there's never been any discussion of working conditions, so I just don't know where that comes from or what it's referring to.

[00:56:48] Speaker 02:
ALJ discusses is the fact that they're underpaid and the fact that they're upset and they feel like they're going to get fired themselves for engaging in protected conduct.

[00:56:59] Speaker 02:
If the board says working conditions, it says that based on things that the ALJ found, it's not inventing a new working condition.

[00:57:10] Speaker 01:
So the NLRB said, the board said that they were chatting about

[00:57:17] Speaker 01:
I'm just paraphrasing here.

[00:57:18] Speaker 01:
I think it was salaries and then working conditions and Bendel's firing.

[00:57:27] Speaker 01:
And that was the protected activity.

[00:57:31] Speaker 01:
But if VIP never knew that working conditions was a part of the analysis, how is that not arbitrary and capricious to inject it?

[00:57:44] Speaker 01:
after the record has closed, they've already filed their exceptions, and all of a sudden you're relying on something they never had a chance to address.

[00:57:56] Speaker 02:
The only working conditions discussed by the LJ are the fact that they're unhappy with their salaries.

[00:58:02] Speaker 02:
The board didn't say we're relying on some other statements.

[00:58:05] Speaker 01:
The board have to spell out what working conditions they're relying on because the LJ didn't rely on them.

[00:58:10] Speaker 01:
And there's never been any discussion of working conditions before in this record.

[00:58:14] Speaker 02:
I mean,

[00:58:17] Speaker 02:
working conditions is is an extremely wide term your honor and and i don't think and i don't think i think when the board says working conditions it relies on what's in the lj's opinion that relates to working conditions namely the fact they are underpaid so so so so i guess

[00:58:37] Speaker 01:
The thing that troubles me about this record is it seems to me that the general council said the that we are going to be talking about is salary sharing and the creation of a spreadsheet and the dissemination of a spreadsheet.

[00:58:51] Speaker 01:
The did take that a little bit further, but I think probably permissively when it said.

[00:58:55] Speaker 01:
chats about the spreadsheet.

[00:58:58] Speaker 01:
That's inextricably linked.

[00:58:59] Speaker 01:
It's been litigated.

[00:59:00] Speaker 01:
That's a ULP.

[00:59:02] Speaker 01:
And I think the position of VIP is, you told us it was about the spreadsheet.

[00:59:08] Speaker 01:
So our defense was, look at this chat.

[00:59:10] Speaker 01:
Look at all these things they were saying.

[00:59:11] Speaker 01:
And all of a sudden, you pull the rug out from under us by saying, our defense, which was in this chat, was the ULP.

[00:59:19] Speaker 01:
And then you don't even tell us what it was in this chat that you're actually writing.

[00:59:24] Speaker 01:
Because there are parts of it.

[00:59:25] Speaker 01:
that could be, as the ALJ said, inextricably intertwined, but other parts that are not.

[00:59:31] Speaker 01:
And it would be unfair for you to rely on the things that are not inextricably intertwined.

[00:59:35] Speaker 01:
And we didn't have any opportunity, if you did rely on the things that are not intertwined, to address them.

[00:59:41] Speaker 01:
But we don't know what you relied on because all you said was working conditions.

[00:59:45] Speaker 01:
I mean, that sounds pretty compelling to me.

[00:59:49] Speaker 02:
Well, okay.

[00:59:51] Speaker 02:
I think even, okay, I'll get back to your question, but I just want to make one point.

[00:59:57] Speaker 02:
Even if, let's say, the workplace conditions was

[01:00:02] Speaker 02:
you know, a problem.

[01:00:05] Speaker 02:
I would argue that it's still harmless error because the boards still found, based on their chats about their salaries and being underpaid and Bendel's termination, that those were the unfair, that that was the protected conduct within the spreadsheet.

[01:00:21] Speaker 02:
So even if... So we were discussing that.

[01:00:24] Speaker 02:
UAPIP had the chance to defend against that.

[01:00:26] Speaker 01:
But could they have sort of rejiggered or

[01:00:31] Speaker 01:
changed the way they defended this case if they had known that working conditions were a part of it.

[01:00:36] Speaker 01:
Because then they might have tried to ascertain within the chat what's protected, what's not, what's a working condition, and then they could have shifted their defense to address the board's or the ALJ's concerns.

[01:00:50] Speaker 01:
If the concern was about working conditions, didn't they have a right to know what the concern was and what the working conditions were?

[01:00:56] Speaker 01:
they could address them or change their defense strategy because then they could parse this chat and say which ones are the ones you're concerned about.

[01:01:04] Speaker 01:
We're actually lying.

[01:01:06] Speaker 01:
It seems that nobody's disputing that it would be a firing offense that's not protected to try to poach another developer and have them leave the company with you.

[01:01:15] Speaker 01:
They could have said, we were really the most concerned about that, and combined with the performance review.

[01:01:23] Speaker 01:
They just could have re-emphasized or changed the way they approached this.

[01:01:28] Speaker 01:
If they had known that your concern was working conditions, and then they would have tried to figure out what the working conditions were that you were concerned about, and they could have adjusted their defense accordingly.

[01:01:38] Speaker 02:
Every point you just made, Your Honor, is a point that they made in their argument and is evidence that they put forth.

[01:01:45] Speaker 01:
So I think that goes back to the... But if the ALJ had credited them, if they had changed their defense a bit and said, we're the most concerned about the poaching of other developers, like this is something that is really not acceptable to us.

[01:01:57] Speaker 01:
We can't have people within our organization telling other people in our organization to quit.

[01:02:03] Speaker 01:
That was the most troubling thing to us.

[01:02:06] Speaker 01:
And if the ALJ credited that, that would be a permissible firing.

[01:02:11] Speaker 01:
It would not be a UOP.

[01:02:13] Speaker 02:
Actually, Your Honor, this is where I would push back.

[01:02:18] Speaker 02:
If you make comments that are within a discussion, a protected discussion, and you make comments that fall out of there, your discussion does not lose its protection.

[01:02:33] Speaker 02:
the whole thing.

[01:02:34] Speaker 01:
Oh, I thought you would agree that that's not protected conduct.

[01:02:37] Speaker 02:
No, I agree on its in isolation.

[01:02:41] Speaker 02:
If VIP comes across a chat and it's these guys saying, hey, we're going to quit and we're going to get this guy to quit with us.

[01:02:47] Speaker 02:
Let's all quit together.

[01:02:49] Speaker 02:
Unprotected, no doubt.

[01:02:51] Speaker 02:
If they say,

[01:02:53] Speaker 02:
We're not getting paid enough.

[01:02:54] Speaker 02:
This is ridiculous.

[01:02:55] Speaker 02:
Hey, he's not getting paid either.

[01:02:57] Speaker 02:
We should all leave together.

[01:02:59] Speaker 02:
And by the way, we're circling this spreadsheet, all of that.

[01:03:02] Speaker 02:
Then it's inextricably linked.

[01:03:04] Speaker 02:
And you can't just separate one from the other.

[01:03:08] Speaker 02:
So these three employees could have said anything.

[01:03:11] Speaker 02:
No, no.

[01:03:13] Speaker 02:
There are things that you can say that are so egregious that they will cause you to lose the protections of the act.

[01:03:19] Speaker 04:
What's an example?

[01:03:23] Speaker 02:
Off the top of my head, I couldn't tell you.

[01:03:25] Speaker 02:
It's under management.

[01:03:28] Speaker 02:
No, no, no.

[01:03:31] Speaker 02:
It's under the words Atlantic steel analysis.

[01:03:35] Speaker 02:
Things that are too serious that they will cause you to lose.

[01:03:39] Speaker 02:
For example, this isn't saying something, but if you start like, if you're talking to your employer and you're arguing back and forth and all of a sudden you hit the employer, you lose the protection of the act.

[01:03:51] Speaker 02:
Doesn't matter what you said before.

[01:03:53] Speaker 04:
What if you use hate speech toward the employer?

[01:03:55] Speaker 04:
Or you use hate speech toward the employer.

[01:03:56] Speaker 04:
What if you say toward the employers, F these pieces of blank so hard,

[01:04:02] Speaker 02:
if you say it to their face, maybe, but not when you're talking amongst yourselves.

[01:04:07] Speaker 02:
That's all.

[01:04:08] Speaker 01:
I'm just curious about this, because if I'm an employer, and I think that everything's going fine with this employee, and then I find out that they're saying F, this manager, so hard, and I'm disturbed by this, and I want to fire them, I can't?

[01:04:26] Speaker 02:
Yes, you can, if that's all they said.

[01:04:28] Speaker 02:
But if it's in the middle of a discussion, what the board recognizes, and I think this court knows, is when you're talking about protected conduct, that doesn't mean that you don't inject things.

[01:04:42] Speaker 02:
Conversation doesn't work like that.

[01:04:44] Speaker 02:
You don't just say, OK, now we're just talking about protected conduct, and we're not going to say anything else.

[01:04:48] Speaker 02:
And now we're done.

[01:04:49] Speaker 02:
Now I'm going to say, F this employer so hard.

[01:04:51] Speaker 02:
Can you fire someone for disloyalty?

[01:04:54] Speaker 02:
Yes, but not if you associate disloyalty complaining about your salaries.

[01:04:59] Speaker 04:
So if someone is advocating for, let's say, they've got a sign that says unionize, unionize, unionize.

[01:05:07] Speaker 04:
Independent of whether or not they are in favor of a union, you come to the conclusion they are a disloyal employee.

[01:05:14] Speaker 04:
Not disloyal because they want to unionize, but disloyal because they say things like, F these pieces of F so hard.

[01:05:22] Speaker 04:
I don't see how you get to get out of jail free card for saying extremely disloyal and vile things about your employer just because a minute before you were saying, unionize, unionizer, pay us more, pay us more.

[01:05:36] Speaker 02:
That's a slightly, I don't know how the board would rule in that situation because you're talking about one act where on one hand this guy is doing this and then maybe the next day he says, fuck these people so hard, excuse me.

[01:05:47] Speaker 02:
In this case, it's all intertwined.

[01:05:49] Speaker 02:
It's all part of the same ebb and flow of a conversation.

[01:05:54] Speaker 03:
There's a lot of case law out there that says we do not, the board doesn't enforce Emily Post rules.

[01:06:01] Speaker 03:
There can be a lot of unpleasant language in workplaces.

[01:06:06] Speaker 03:
A lot has been tolerated.

[01:06:09] Speaker 03:
Picket lines, workplaces, break rooms.

[01:06:13] Speaker 03:
And so it's a very

[01:06:15] Speaker 03:
very nuanced analysis before someone can get fired for using obscene language.

[01:06:23] Speaker 03:
It's really very nuanced and context specific, and there is a lot of precedent on that.

[01:06:32] Speaker 03:
So we can't just sort of pick up a transcript and say, oh, curse word, my ears hurt, you can be fired.

[01:06:39] Speaker 02:
I wish I was as articulate as you are, Judge.

[01:06:43] Speaker 02:
But yes, that is my point.

[01:06:44] Speaker 04:
I agree with that, that both Judge Millett is very eloquent and also that what Judge Millett suggested is correct, that when you are engaging in protected speech, you can use four-letter words.

[01:06:56] Speaker 04:
But that doesn't answer the question of whether this feeds itself protected speech or if this is a sign of disloyalty

[01:07:07] Speaker 04:
separate from wanting higher salaries.

[01:07:11] Speaker 02:
When you are in the midst of protected activity and you interject other things like that,

[01:07:19] Speaker 02:
those become protected by association.

[01:07:22] Speaker 02:
You can't just carve them out.

[01:07:24] Speaker 02:
Why are they saying F these people?

[01:07:26] Speaker 01:
Don't talk over me.

[01:07:27] Speaker 01:
Sorry.

[01:07:28] Speaker 01:
Is this just a finding by the ALJ whether or not it's protected or not, depending on context?

[01:07:33] Speaker 01:
Is it just for the ALG to make a finding as to whether or not it's protected or not, depending on the context?

[01:07:40] Speaker 01:
We're debating it in a vacuum here.

[01:07:46] Speaker 01:
Context specific, sometimes it's protected, sometimes it's not, depending on the context.

[01:07:51] Speaker 01:
Isn't it for the ALJ to make a finding as to whether or not this is protected or not based on the context?

[01:07:58] Speaker 02:
No, Your Honor.

[01:07:59] Speaker 02:
I mean, yes, the ALJ can certainly make the finding.

[01:08:03] Speaker 01:
My point is, let's take Fung with us.

[01:08:07] Speaker 01:
We're all going to quit.

[01:08:07] Speaker 01:
Let's take Fung with us.

[01:08:10] Speaker 01:
Isn't it up to the ALJ to determine whether or not that's protected or not based on the context?

[01:08:17] Speaker 02:
I think if it would be nice, I'll agree, it would be nice if the LJ had done so.

[01:08:22] Speaker 01:
That's not what I'm saying, whether it's nice or not.

[01:08:24] Speaker 01:
What I'm saying is if they had had an opportunity to know what the concerns were within the chat, they could have homed in on, for example, let's take Fung with us and said that's not protected and that's why we fired them.

[01:08:38] Speaker 01:
And then the ALJ could then decide that was protected or that wasn't protected or whatever.

[01:08:43] Speaker 01:
But none of that happened because they didn't have the opportunity to know what was it within this chat that

[01:08:51] Speaker 01:
was allegedly a ULP or not, because that wasn't the focus of the complaint or even the ALJ's finding, which extended the complaint a little bit, probably permissibly, but then the NLRB went even further in an area that they didn't have a chance to address, which is working conditions.

[01:09:11] Speaker 02:
Even if, even if that was

[01:09:16] Speaker 02:
and the ALJ should have made that finding.

[01:09:18] Speaker 01:
Ultimately, it is a harmless error because as Judge Millett said- But I guess my point is, how is it harmless if the ALJ didn't have a chance to address the argument, for example, that this is the thing that we relied on?

[01:09:32] Speaker 01:
Let's take Fung with us.

[01:09:33] Speaker 01:
ALJ, it's not harmless if the ALJ never was presented the argument because they didn't know that they were going to have to parse the chat like that.

[01:09:41] Speaker 02:
It is harmless, Your Honor, because under board law, when you interject things like that within the context of protected conduct, you do not lose the protections of the act.

[01:09:53] Speaker 02:
You remain protected.

[01:09:54] Speaker 01:
I thought we disagreed that the ALJ would have to decide what is protected and what is not, depending on the context.

[01:10:02] Speaker 02:
Well, no, then I'm sorry, that's not what I meant.

[01:10:06] Speaker 02:
What I meant is that, well, the harmless error in this case would be, as you were saying, the LJ didn't have an occasion to pass on it.

[01:10:14] Speaker 02:
Therefore, that's what they're complaining about.

[01:10:16] Speaker 02:
The harmless error intervenes because even if the LJ had passed on it, under board law,

[01:10:22] Speaker 02:
It is undeniable and well-established that you can say, if these pieces of us so hard or that kind of stuff in the context, same.

[01:10:33] Speaker 01:
I'm sorry, counsel.

[01:10:34] Speaker 01:
You got up.

[01:10:35] Speaker 01:
I said, is that protected or not?

[01:10:37] Speaker 01:
And you said that that is not protected.

[01:10:39] Speaker 01:
You can't say, let's take fun with us.

[01:10:42] Speaker 01:
Let's have fun quick.

[01:10:44] Speaker 01:
I thought that's where we started.

[01:10:45] Speaker 01:
And now you're saying as a matter of law, that would be protected.

[01:10:49] Speaker 02:
What I said, Your Honor, is that in a vacuum, making those comments, if they had found a chat that said just that, that is not protected.

[01:10:58] Speaker 01:
When I asked you this earlier in this argument about this case, I asked you, is that statement protected or not?

[01:11:04] Speaker 01:
And you said it is not.

[01:11:05] Speaker 01:
And now you're saying it most definitely is.

[01:11:08] Speaker 02:
in this case the statement is protected by association because it occurs within the context.

[01:11:13] Speaker 01:
I understand that I'm just saying you've changed your position in the time that you've been standing here.

[01:11:17] Speaker 02:
I do apologize your honor I do remember saying in a vacuum maybe we misunderstood each other I sincerely apologize but I don't believe I've changed my position it's certainly our position in the brief is that

[01:11:28] Speaker 02:
even if statements like that on their own are unprotected, when they are made in the midst of protected conduct, they do not cause the employees to lose the protections of the act.

[01:11:42] Speaker 02:
And I apologize if I said anything differently.

[01:11:44] Speaker 04:
In the context, imagine there's a union election.

[01:11:49] Speaker 04:
There's two competing planks.

[01:11:51] Speaker 04:
There are the incumbents, and then there are kind of challengers who say the union is doing a terrible job.

[01:11:57] Speaker 04:
And they're in a break room, the employees are in there, one plank is arguing that the other, the incumbents are doing a bad job and the incumbents are saying, no, we're doing a great job.

[01:12:08] Speaker 04:
And in the midst of that kind of hustle bustle and debate about the election,

[01:12:13] Speaker 04:
One of them says, some people here are not paying their bills.

[01:12:21] Speaker 04:
And as it happens, someone on the other side, husband recently passed away and they've been forced to raise money for the funeral expenses.

[01:12:29] Speaker 04:
And then that same person said that nasty thing also said some people need to focus on their kids rather than the union.

[01:12:34] Speaker 04:
And a few days later, the incumbent person's son had narrowly survived a stabbing.

[01:12:41] Speaker 04:
All, you know, these things are right in the middle of the election speech.

[01:12:47] Speaker 04:
Back and forth, back and forth.

[01:12:50] Speaker 04:
This is from a case.

[01:12:51] Speaker 02:
I know that case argued in front of you.

[01:12:53] Speaker 04:
Okay, then why was it unprotected speech?

[01:12:56] Speaker 04:
Why was it unprotected speech there?

[01:12:59] Speaker 04:
But you're saying, in the context of this chat, they could have said basically anything.

[01:13:05] Speaker 02:
In that case, Your Honor, if you recall, the person who made those statements

[01:13:11] Speaker 02:
What the board found was that he started by talking about electioneering and then he veered off onto something that had absolutely nothing to do and then got into a back and forth specifically with this person where he said those things.

[01:13:26] Speaker 04:
They're talking about Vindel and Vindel shouldn't have been fired.

[01:13:31] Speaker 04:
And then they veer off into, hey, let's go poach one of this company's employees when we leave.

[01:13:38] Speaker 04:
And also, let's poach one of the employee's customers.

[01:13:41] Speaker 02:
No, no, no, no, no.

[01:13:42] Speaker 02:
Right?

[01:13:43] Speaker 02:
That wasn't the same thing?

[01:13:43] Speaker 02:
No, they never said poach the employee's customer.

[01:13:46] Speaker 02:
They talked about

[01:13:49] Speaker 02:
a calling up a former colleague of theirs who works now for a customer, a VIP, and telling him about what happened.

[01:13:57] Speaker 02:
There was no poaching of customers or anything like that.

[01:14:00] Speaker 04:
It still seems a bit disloyal.

[01:14:01] Speaker 04:
It basically sabotaged the company's relationship with the employee, with the customer.

[01:14:05] Speaker 04:
But I think if you... I can certainly... We have a... I have your answer to the McLem thing, but it seems like the argument that the board made there is not consistent with the argument the board made here.

[01:14:18] Speaker 02:
Oh, I'm sorry.

[01:14:19] Speaker 04:
Oh, in McLean, the argument in McLean is not consistent with this one here.

[01:14:23] Speaker 04:
And I think, imagine that someone said, those managers should pay us more.

[01:14:30] Speaker 04:
That's protected.

[01:14:32] Speaker 04:
Imagine they said, those insert racial epithet should pay us more.

[01:14:38] Speaker 04:
And then the employer fired them for being racist.

[01:14:41] Speaker 04:
I think that's a fair firing, right?

[01:14:43] Speaker 02:
Right.

[01:14:44] Speaker 02:
Right, but if they say those MFing employers should pay us more, that is protected.

[01:14:51] Speaker 03:
If they say, we're underpaid, we're underpaid, this is crazy, what's going on?

[01:14:59] Speaker 03:
Bendel fired.

[01:15:00] Speaker 03:
My friend Joe over here, he's really underpaid too.

[01:15:04] Speaker 03:
Can you believe how underpaid he is?

[01:15:06] Speaker 03:
Wow.

[01:15:06] Speaker 03:
And they go, wow.

[01:15:07] Speaker 03:
Well, if we get out of here and get other jobs, let's bring him with us.

[01:15:13] Speaker 02:
Yeah, protected by association.

[01:15:15] Speaker 02:
It's all about the spark about this.

[01:15:21] Speaker 02:
The reason they're talking about this is that they're frustrated with their pay.

[01:15:25] Speaker 02:
The reason they're saying, F these MFers so hard is because they just fired a colleague for engaging in protected conduct.

[01:15:33] Speaker 02:
The reason they're saying, I don't care about these people anymore is because they're complaining about their income and they feel mistreated.

[01:15:40] Speaker 01:
At some point it becomes a little attenuated though, because the original ULP is salary sharing, disseminating a spreadsheet.

[01:15:48] Speaker 01:
And then it kind of leads into we're all underpaid, which I can kind of see.

[01:15:52] Speaker 01:
But then it leads into let's take other people with us if we quit.

[01:15:55] Speaker 01:
At some point, it's a little attenuated from the original ULP.

[01:16:01] Speaker 02:
I can understand how, yes, at some point, there's going to be a line.

[01:16:06] Speaker 02:
But if it occurs within the same, this is the main point here.

[01:16:11] Speaker 01:
Well, the line is that it was fairly litigated, right?

[01:16:14] Speaker 01:
There's actually a legal standard for that.

[01:16:16] Speaker 01:
That if it's inextricably intertwined and fairly litigated.

[01:16:18] Speaker 01:
Right.

[01:16:19] Speaker 01:
Well, no, I could closely connect it in this case.

[01:16:21] Speaker 01:
I know that you knew that coaching another employee was part of this.

[01:16:23] Speaker 01:
I don't see why you can rely on that if you didn't say so.

[01:16:28] Speaker 01:
And I don't know whether you relied on it or not, because you didn't say so.

[01:16:32] Speaker 02:
What the board relied on, and it said so, is the fact that they were complaining about their salaries and the working conditions.

[01:16:41] Speaker 01:
Exactly.

[01:16:41] Speaker 01:
Working conditions.

[01:16:42] Speaker 01:
What does that entail?

[01:16:44] Speaker 02:
Poaching an employee is not a working condition.

[01:16:45] Speaker 02:
I don't think we can all agree on that.

[01:16:49] Speaker 01:
It's not a working condition.

[01:16:51] Speaker 01:
So it would have been fair to fire them for wanting to poach Feng?

[01:16:55] Speaker 01:
What does poach mean?

[01:16:57] Speaker 02:
Actually, that was, I'm sorry, you're right.

[01:16:59] Speaker 02:
We got sidetracked with the poaching.

[01:17:01] Speaker 02:
It wasn't poaching.

[01:17:02] Speaker 02:
It was talking about leaving with another employee, poaching.

[01:17:04] Speaker 02:
Having a place for another employee.

[01:17:06] Speaker 02:
If we get out, let's have a place to go.

[01:17:08] Speaker 02:
If we get out, let's take him with us.

[01:17:10] Speaker 02:
That's what they were saying.

[01:17:11] Speaker 01:
Interfering with the relationship between another employee and management.

[01:17:15] Speaker 01:
So if that's not one of the things, if they had said to the ALJ, that's why we fired him, that would have been lawful then.

[01:17:25] Speaker 02:
No, your honor.

[01:17:26] Speaker 02:
If they had said that in a vacuum, yes.

[01:17:29] Speaker 01:
But if they said that- In the context of this case- In the context of this case- Where the ULPs that are under consideration do not involve interfering with another employee's relationship with management, could they say that's actually, it wasn't the ULP that you're saying.

[01:17:44] Speaker 01:
It wasn't a ULP because we were actually concerned about this, the interference of our relationship with another employee.

[01:17:51] Speaker 01:
Could that be a valid defense if the only ULPs that are under consideration are.

[01:17:57] Speaker 01:
our spreadsheet creation?

[01:17:59] Speaker 02:
Perhaps if they had evidence that they, separately from all this, were actively trying to talk to this guy and leave with him, but just a statement thrown out in the midst of the complaints, in the midst of protected conduct, no, that remains protected.

[01:18:19] Speaker 02:
I mean, again, it's not protected in and of itself.

[01:18:22] Speaker 02:
It becomes protected by associations.

[01:18:24] Speaker 01:
I guess my point is just that they might have had a different defense, like if they had known that you were going to go in the direction of...

[01:18:31] Speaker 01:
working conditions and they would want to know which working conditions are you talking about?

[01:18:35] Speaker 01:
Does it include this other employee?

[01:18:38] Speaker 01:
And then they could have made an argument, we weren't focused on the ones you're concerned about.

[01:18:41] Speaker 01:
We were focused on these ones and it would have been lawful for us to fire these people based on this other thing.

[01:18:48] Speaker 01:
But none of this was litigated, none of this was considered because they had no idea that working conditions were a thing in this case.

[01:18:55] Speaker 02:
Right, and then that's where I come in and say this is harmless error, because even if that was true, I would still be coming here and saying under established board law, when you just throw stuff out like that in the midst of a conversation that may not be protected in and of itself in a vacuum, it is inextricably linked.

[01:19:15] Speaker 01:
You don't know whether it's harmless or not, because you don't know what their different defense would have been if they had known that working conditions were a thing.

[01:19:23] Speaker 01:
You're basically saying there's no scenario in which they could have come up with anything that possibly could have made any difference, but you don't know what they would have done differently.

[01:19:32] Speaker 01:
I'm just giving you an example of something they might have done that seems plausible to me, but there might be lots of things I don't even know about.

[01:19:38] Speaker 01:
But you're saying no matter what it was, it would have been harmless.

[01:19:41] Speaker 01:
And I don't know how you can know that.

[01:19:43] Speaker 02:
Well, they would also have to show us and to actually put forth something that they would have provided, you know, to support that, that they would have, I'm sorry, they would have had to provide evidence or put forth evidence that they would have provided that is somehow different than what they already put in.

[01:20:05] Speaker 01:
It doesn't have to be different, does it?

[01:20:06] Speaker 01:
They could have changed the litigation strategy.

[01:20:09] Speaker 01:
It's the same chat that's in evidence, but they could have emphasized something different within it.

[01:20:14] Speaker 01:
They could have said something in the chat combined with the performance review that was in evidence that they didn't emphasize.

[01:20:19] Speaker 01:
I don't know.

[01:20:19] Speaker 01:
I'm just saying they could have had a different strategy.

[01:20:21] Speaker 02:
I mean, I believe that's how I thought that was their strategy.

[01:20:27] Speaker 02:
They talked about Noble's performance review.

[01:20:30] Speaker 02:
They brought all of those things in.

[01:20:33] Speaker 03:
I think we're talking at this point.

[01:20:35] Speaker 03:
Do you have any more questions?

[01:20:36] Speaker 03:
No.

[01:20:38] Speaker 03:
Okay.

[01:20:38] Speaker 03:
Thank you very much.

[01:20:39] Speaker 03:
Council.

[01:20:41] Speaker 02:
Oh, may I just on the hard coded.

[01:20:47] Speaker 02:
There is an answer to your question, Your Honor.

[01:20:49] Speaker 02:
The problem is it's a little awkward.

[01:20:51] Speaker 02:
The spreadsheet was introduced into evidence, the actual Excel spreadsheet.

[01:20:58] Speaker 02:
It was not admitted into the record.

[01:21:01] Speaker 02:
The court reporter included it inadvertently within the rest of the evidence.

[01:21:08] Speaker 02:
And it is actually part of the record that we have in the board's files.

[01:21:16] Speaker 02:
I don't want to say anymore since it's not part of the formal record, but there is an answer to your question.

[01:21:24] Speaker 02:
I'm sorry.

[01:21:26] Speaker 04:
That leads to more questions than answers.

[01:21:28] Speaker 04:
I mean, how is the spreadsheet, the spreadsheet is an exhibit for the unfair legal practice with regard to Bendel.

[01:21:35] Speaker 02:
Right.

[01:21:36] Speaker 04:
How could that not have been admitted into evidence?

[01:21:39] Speaker 02:
They omitted to admit it.

[01:21:40] Speaker 02:
They introduced it and they didn't ask to admit it.

[01:21:43] Speaker 04:
the company has to admit it into evidence.

[01:21:46] Speaker 02:
Yeah, they introduced it.

[01:21:47] Speaker 02:
They questioned him about it.

[01:21:49] Speaker 04:
And then afterwards, the ALJ stage, the burden would be on the general counsel to prove the case, right?

[01:21:55] Speaker 04:
Wouldn't they need the spreadsheet as part of the evidence to prove the case?

[01:21:59] Speaker 02:
No, the General Council relied on photographs, screenshots that you have seen that are part of the record.

[01:22:08] Speaker 03:
We're just talking about the original was not admitted, but screenshots were admitted.

[01:22:11] Speaker 02:
Right, the screenshots were admitted, the original was introduced but not admitted.

[01:22:17] Speaker 04:
Thank you for that clarification.

[01:22:19] Speaker 02:
Yeah, sorry, I can't help you.

[01:22:21] Speaker 02:
Like I said, the answer exists.

[01:22:22] Speaker 02:
I just because of that, I can't.

[01:22:24] Speaker 02:
Thank you.

[01:22:25] Speaker 02:
Thank you very much.

[01:22:26] Speaker 02:
We ask that you respectfully.

[01:22:28] Speaker 02:
That's the court enforceable to order in full.

[01:22:29] Speaker 02:
Thank you.

[01:22:29] Speaker 03:
Thank you.

[01:22:30] Speaker 03:
Thank you.

[01:22:30] Speaker 03:
Mr. Ellis, I think, did you ask for two minutes?

[01:22:32] Speaker 03:
Is that right?

[01:22:33] Speaker 05:
Yes, thank you.

[01:22:35] Speaker 05:
Judge Walker to your question, the.

[01:22:39] Speaker 05:
The citations in the record to the evidence of how management looked at the spreadsheet and what they concluded about what Bendell had done to hard code it.

[01:22:50] Speaker 05:
I can give you the citations to that.

[01:22:52] Speaker 05:
That's the joint appendix at 1246, 841, 842, 1067, and 1053.

[01:23:04] Speaker 05:
Thank you.

[01:23:07] Speaker 05:
The discussions of leaving and taking Feng with us occurred before they found out that Bendel had been fired.

[01:23:16] Speaker 05:
It had nothing to do with Bendel being fired.

[01:23:20] Speaker 05:
And the discussions that were taking place in the chat at that time weren't just about salary.

[01:23:25] Speaker 05:
It was just that they didn't like the restructuring.

[01:23:28] Speaker 05:
for lots of reasons that they were talking about.

[01:23:31] Speaker 05:
They thought management didn't know what they were doing with the restructuring and they objected to the restructuring and that's why they're leaving.

[01:23:37] Speaker 05:
It wasn't just a salary.

[01:23:39] Speaker 05:
So the argument that's being made here by the board's appellate council, even though the board didn't make this argument, is effectively

[01:23:49] Speaker 05:
They can talk, they can say whatever they want, but as long as at some point in that chat, they mentioned salary sharing, everything automatically becomes protected.

[01:23:59] Speaker 03:
That's his position.

[01:24:00] Speaker 03:
He said that you then have to switch to the Atlantic steel analysis to decide something.

[01:24:04] Speaker 03:
So let's be fair to what he said.

[01:24:06] Speaker 05:
But the, but the implication, especially because we don't know from the board's decision, what are the workplace conditions that the board found to be protected?

[01:24:15] Speaker 05:
Is it the board's view that the discussion about recruiting Fung and taking him with us as a discussion of workplace conditions?

[01:24:22] Speaker 05:
We simply don't know.

[01:24:23] Speaker 03:
All right.

[01:24:25] Speaker 03:
We don't have any further questions.

[01:24:26] Speaker 03:
I think we've got your argument.

[01:24:28] Speaker 05:
Thank you, your honor.

[01:24:28] Speaker 03:
Thank you.

[01:24:29] Speaker 03:
Go council.

[01:24:30] Speaker 03:
The case is submitted.