case please case number one five dash one zero four zero and one five dash one one nine three loose transport incorporated at all the national labor relations board or arguments not exceed fifteen minutes per side for petitioners cross responded it please the court good morning and happy st patrick's day my name is amy camino and i am here this morning and behalf of the petitioners loose transport anti cam ass for purposes of simplicity i will simply refer to the petitioners as lose if that's ok and i have requested two minutes of rebuttal in this matter the national labor relations board failed to make two necessary determinations and in failing to do so the  board erred in its findings and conclusions application of the legal standard established by this circuit demonstrates that lose terminations mr her she was lawful and that the board's decision an order should not be upheld because it has no reasonable basis in law the two stand for all issues neither of which were addressed or decided by the board or first of all whether or not mr hershey's display of the signs constituted protected concerted activity and secondly even if they were protected concerted activity whether or not lose knew that the signs were such now with this committee let me suggest an alternative way to look at this before you launch right into the science it seems to me that the weakest part of your case deals not with the sides but rather with the radio conversation if i understand it right and i may not say this exactly correctly but i don't think that you accepted to the question of whether the radio conversation was protected activity so it comes down to the question of was he engaging in that and you didn't accept to the question of whether they knew it was protected activity so it comes down i think that part of the case to simply whether the prove whether the substantial evidence that in fact that was the reason for firing over or one of the two reasons for firing them and it's hard to see how there isn't substantial evidence when you look at the actual comments of the  when you look at the comments of the two lemming brothers they almost seemingly admitted so if the if any of the things that i've just said or i guess all of them are kirk are correct we never even get to the sides i would like to address those issues with judge mckee actually first of all we did not accept to any findings of knowledge because there were no findings of knowledge and that's one of the errors the board used a belief standard in under this circuit's a stamp law a belief is not sufficient the man or mark case the meyer case in several other cases in this circuit say that knowledge is a required element to these two guys we're talking about working conditions or clip they're complaining about working conditions that that clearly seems to be under the board authority concerted action well if you look at the testimony the judge of mr lambing jeffrey david lammy in particular he's someone who overheard the conversation his testimony at the hearing his concern wasn't with the complaints about the trucks in the cory roads they knew it was terrible working conditions they heard every driver every single day complain about it mr landings beef with that conversation was when he called it one of the owners mr israel anything cheapskates another name i'm not comfortable saying and he dropped what they called f bomb struck the conversation that was his concern with respect to the radio conversation the inappropriate language the offensive language in the comments made about the owner but the fact that that was his concern doesn't mean that anybody would know it was concerted activity if it was concerted activity and he knew it and he fired him because of it he he lose so he might have been also upset about the names they're calling him and the violation of the no chatter rule and all that but i don't see how that distracts from from the central underlying legal question here well i  to that first of all we don't we don't still lose because under the right line analysis which is a board decision that's reiterated in the circuit in multiple cases even if he even if one of the reasons was the radio conversation for his for his terminations say that the court agrees that that was one of the reasons or believes that was one of the reasons if we can then we being loose can then affirmatively defend by showing that he still would have been fired on march twenty seventh due to unprotected activity the unprotected activity being the signs and that's why it was starting with the signs not even being protected activity so but for the signs he would not have been fired on march twenty seventh regardless of whether or not he engaged in activity on january seventh and that is the law in the circuit let me ask you one other follow up question isn't there a difference between whether he was fired for protected activity involving the signs of which there is a contested issue or whether he was the if the firing for the radio conversation was accompanied by the firing for the signs doesn't mean that necessarily they believed that the signs work and were concerted activity or protected effort to get that point but what they said was we warned them don't don't do this again and he did and they thought he did it again with respect to the signs irrespective of whether that was protected activity so i agree that they probably fired them for the combination of those two things but if one was protected activity they don't get a pass under the labor was for that and it's our position certainly though that while the radio incident was mentioned it wasn't the complaints about the roads in the trucks it was the mocking of the company and its owner and the inappropriate language in the an appropriate manner in which he did it he said they heard the complaints all the time that wasn't a news flash to them and that didn't bother them it was the way he went about it that they felt was inappropriate and that was their reference to the radio conversation he certainly wasn't fired on january twenty seventh our january seventh or eight actually the owner told management not to fire him he said talk to him turn it into a positive experience drivers are hard to keep he not only was not terminated he was offered another position within the quarry because he was clearly unhappy but he declined the position in the that was offered to him because he wanted to continue to make more money he apologized on january eighth he said he was just blowing off some steam in mr testimony was that he believed the apology to be sincere he believed that they were moving forward and that this was behind them and that was unrefuted testimony so it mentioned on march twenty seventh of of the radio conversation back on january seventh was was really about the the mocking offensive nature of the conversation not about the complaints about the working conditions did you have any other questions for me or should i continue to continue thank you the signs were not protected concerted activity the relevant question in determining whether or not an employee's activity is protected is whether the employee acted with the purpose of furthering group goals i do have one other question i was looking in my notes for whatever i could find the relates to your point that if you're actually fired for some other reason in whol part that sort of shields the violation of the act in connection with a protected activity but it seems to me that based on the case law the law is that if the discharge was motivated in part by the by the protected activity then you violate section eight a one is that is that contrary to your understanding of the law if the discharge is motivated in part by the collected activity by the protected activity you lose there has to be the nexus between a discriminatory mode of and the termination cr in part satisfied so if we find that the that these speech involve or the radio was protected activity and if he was fired in part for that you lose we in we don't get to the signs is that right or wrong and we knew that it was protected activity which part where when you're grieving to that which part of the conversation are we talking about not the great thing about the roads but the inning the management personally that was what what management took issue with was were the comments about the owner it mr lamb's testimony was not at all focused on the complaints about the row so when he reprimanded him for that conversation he didn't reprimand him for complaining about the ropes he reprimanded him for talking about mr israel over the radio as he did in using the language that he used that's why he was reprimanded let's stop with the knowledge component then because that was what your answer was t last question right i believe so correct me if this is wrong that you didn't argue before the board the question of whether they had knowledge that the radio conversation was protected activity so we have some things you didn't even you didn't argue that seems to be fitting fitting in that category and then other things you didn't except from the conclusion that the board drew that's the question of was it really protected activity so if if it's correct you may you might have a good argument but if you didn't make it before the board you can't make it before us we we did not file exceptions with respect to whether or not the radio conversation was protected activity we did certainly take exception on in argue the fact that that was not one of the reasons he was terminated but did you take exception or are you before the board the the knowledge argument that you're making now with respect to the radio conversation that they didn't know that it was protected activity not until the board came back and used the word belief the board is the one that applied the wrong standard and then we argued the correct standard here the board in its decision in order used the wrong legal standard in its decision in order so you did argue there was no knowledge of the protected nature of the radio conversation activity before the board or you didn't argue that we didn't specifically argue knowledge vs belief and you don't think that's a problem i think the problem is with the word using the wrong standard in its decision all right and using cases from other circuits and using board decisions which run contrary to the decisions of the circuit mr hershey's own testimony with respect to the signs was that all he cared about was that they make the drivers laugh and all driver testimony regarding their reaction to the signs was that they just thought they were funny so hershey's own testimony supports a finding that the signs were not protected concerted activity and because the board applied the wrong legal standard there is no reasonable basis in law for its holding and its decision and we asked that the order not be enforced thank you thank you reserve some time so here let's hear from the other side please the court good morning my name is valerie collins and i represent the national labor relations board the primary issue before the court we start with the standard absolutely of your argument to respond to the board using the wrong standard ok you meant the standard of review here the board absolutely did not use the wrong standard here in either of its findings i mean there's two findings going six circuit precedent yes so the companies mean argument in that regard is that the board's alternative finding which has to go to the company's belief in the protected nature of the signs so the company is arguing that because this court in minor held that in order for there to be  a violation of eighty one the board is required to show protected a concerted activity and then to show that the employer knew about it the court in meyer did not address the situation that we're faced with here today whether belief is sufficient to satisfy the motivation aspect of a day one and it's our understanding that the company's interpretation of myer is quite restricted and it doesn't take a lot to come to that conclusion because if you read my or your agreeing with the companies you know taishan and agreeing that that is i mean you said it doesn't take much to come to that conclusion so it sounds like agreement no i misspoke i'm saying we do not agree with the company's interpretation of meyer as it applies to this case essentially it doesn't this issue wasn't before the court in my hair it is true that one way the board can show improper motivation is to show protected concerted activity and knowledge that's one way or another way in we think this is completely consistent with meyer is to show that the employer had a belief that the person was engaged in protected concerted activity and if you look at the whole rationale behind the decision essentially what the board did is the board this is in my or the board said you don't have to have a subjective element under eighty one violations it just has to reasonably have a tendency to coerce and with this circuit set is no you have to show something subjective because based on the language of eighty one the unlawful action has to be because of something so there has to be a subjective aspect to the test and that's why the court decided that you needed to show knowledge and protected concerted activity here the subjective part and that subjective component is met fully because it's so clear that the company believed he was engaged in protected concerted activity so the board never having an argument that he was the son are we speaking primarily about the signs yes this is concerning the signs and then so that you've heard the argument that it was to entertain the gentleman's own that it was to be funny not not really to comment so what do you think about that although i have honestly i think that's irrelevant the board didn't  hold the signs were protected concerted activity there's no there's no finding on that to review before this court because the board came to the conclusion that they didn't even need to deal with that even if in this again this isn't before the court but even if the board did hold that it was protected concerted activity there's certainly no rule that i'm aware of that you can't be funny or attempt to be funny while you're in gauged in concerted activity and while you are trying to improve the morale of your fellow drivers who have all complained about these safety concerns and i think that we were kind of talking this question this way this is trouble me in reading this in terms of a knowledge component first of all the employer has to know what the employee is doing that they actually were doing something that might be or might not be considered activity or protected activity you agree with that and you repeat that that they have to know if we took this a step at a time there could be cases where the employer didn't even know what the employee was doing that later was claimed to be protected activity that's the  the parking lot and the guy gets there too late to see that yes assuming that they knew what the activity was then we get to the question of whether you know that that activity was in fact protected activity now you do this all the time so we just see these cases every now and then so as a i'm just curious as general rule what what does the board usually point to to evidence and employers knowledge that the activity they knew about was in fact legally protected activity well in a typical case the board will apply a right line announces and opposing counsel mentioned rightly and that's kind of  framework of the board uses to analyze when you have essentially kind of competing motives so we're the general counsel is arguing that the company terminated or disciplined someone for protected reason and the company is saying no it was completely legit or we discipline this guy because he's laid all of the time or something like that and so what the board will go through is this analysis where it general counsel has to show that there's a eating factor which kind of goes to your earlier statements it doesn't have to be the only one that doesn't have to be the predominant one if there's a motivated motivating factor that is unlawful under the act the company then has to show that it would have fired this person regardless of their protected concerted activity i don't understand how that addresses my question which is how do the how do you prove knowledge when it is required that the activity was in fact protected activity so under under right mind in within the first step the general counsel has to show that there is in a mess and that goes to the knowledge because you can't have animists if you are protected activity  if you don't know about it so that's where that usually fits in here this case is kind of unusual because the motives are very clear the company gave two very clear reasons why mr her she was fired so there wasn't a whole lot of analysis that a board need to do to kind of uncover what the motives were but again there can be animus against the employee in this case for bad mouthing the company and calling  the typical situation the company with then argue we know this had nothing to do with protected activity we fired this person because we are tired of looking at him every day or whatever legitimate reason that they have here it's so clear the company there are only two reasons the company's own witnesses give two reasons the signs in the radio conversation essentially what the company is asking this court to do is not look at the plain meaning of their own testimony the two lambing brothers made it abundantly clear it was signed in the radio and they say and they say also they say that the activity was continuing the protected need share of the radio conversation is absolutely uncontested before this court so there's the court doesn't have to decide whether the radio conversation was protected concerted activity it was also have prior violations that is not contested before this court so when the company  threatened her she in pleasure because of that radio conversation that was unlawful it was right around this time if you look at the context because we're kind of looking at it very specifically there's this real conversation and then two months later there are these signs that came out of nowhere what the testimony shows is that this was all around the same time he started putting these signs in his truck shortly after that radio conversation in february the workers were so concerned with the safety of their safety on the at this work site that they organized as a work stoppage each and every driver all of them i think they were twenty complained to the company about their safety concerns about the roads in the trucks two days before he was terminated there was a meeting where the company was addressing some of these safety concerns and he's vocal in complaining and then two days later on the company discovered and it's unclear how not that the signs existed but the fact that people in other drivers were talking about the signs the signs themselves wasn't the weren't the problem the problem but the concern of the company was the fact that he was getting everybody all riled up and upset about these safety concerns so it really shows the history of everyone i mean these were clearly group concerns everyone was complaining about them the  conversation where he's talking about these safety concerns was clearly protected and in any event isn't before the court the testimony is very clear that it was protected activity because it wasn't accepted to or wasn't argued before the board still doesn't address itself to the question of whether they knew that this that the activity of which they were aware was in fact a legally protected activity and i think that so i have two to answers to your concern primarily that issue isn't before the court the company is prohibited by twenty of the act from raising that it did not raise this concern to the court in regards to the radio conversation the company argues that it couldn't have because the board was the first one to kind of bring that element in under six circuit law the company is required to file a motion for reconsideration from before the board so the board can consider its argument it simply cannot procedural avenue there are it's simply vetoes response to my question was that didn't come up until the board applied the wrong standard yes so at that point if they wan for reconsideration in the policy there's is regarding the standard the apply yes the leaf standard or the fact that the argument that the board incorrectly didn't make a finding of knowledge in regard the belief i definitely want to highlight to this court some of the language that the lambing brothers used for example geoffrey lambing characterize these signs as visual chatter that were stirring up the crowd getting people going getting people riled up bad now thing the company still talking bad talking derogatory notably the bad mouthing the company con that he used that same same exact language to describe the radio conversation which is not for the court because that's protected and essentially what the companies are doing is saying no no no that's not what they meant they meant something else that's not enough because simply because there's a possibility that there is another plausible way to read the you know to read this testimony is not sufficient to not enforce a board order it's abundantly clear that here substantial evidence supports the conclusion that they believed he was stirring up the crowd i mean people when they're when they're talking about protected concerted activity it would be streamed for regular people use that language i mean you don't go around talking oh my employees are really getting nervous because they're protected concerted activity people say kind of code language just like this it's almost textbook in describing this type of behavior and this is the language that they used i do want to point out that in the company's reply brief they spend quite a bit of time claiming that the board has mis characterized the record and misled this court i absolutely invite the court to look at that testimony  it's not a lot it's abundantly clear i'm the one who wrote the briefs so when i saw that i was definitely a little surprised and i think one other thing i wanted to mention which is which is noteworthy is before the board the company never claimed that his activity in either one of these situations the radio or the signs was so agree juice that that's the reason why he shouldn't be protected under the act that that was not a claim made for the board the testimony clear that wasn't in the issue before the board it wasn't the fact that a couple of these signs were definitely questionable what the company was upset about was the very nature of these signs the message that they were sending to the other employees and the fact that they were getting everybody all all riled up and stirring up trouble or or whatnot if the court does not have further questions for me i would ask that this court enforce the board's order in full because substantial evidence supports the finding that michael her she was unlawfully discharged thank you just a couple of brief points under the law in the circuit my ear is a political knowledge is required knowledge with respect to the science in knowledge with respect to the radio and again if this court or to look back at the testimony laid out right though the mire in and of itself says knowledge won't always be an issue knowledge of the protected or concerted nature of the activity is certainly an issue we knew there were signs at some point but there was no evidence or testimony that we were aware of the specific contents of the science until march twenty seventh for quibbling about if you know about what the activity was i e the nature of the conversation or the nature of the science surely under the act somebody can willfully ignorant of labor law to simply say i'm the employer i didn't know that was protected activity i think especially with respect to the radio incident that they were playing the dumb employer god as i previously stated the quarry conditions in the truck conditions they knew that they were bad they heard it from every driver every day both sides presented testimony to that effect that's not what bothered them about the radio it was the offensive language over the radio in the name that they called mr israel that was their focus on the radio conversation in certainly there was no substantial evidence that they had knowledge that that offensive language in those comments were protected it to be specially for these at will employees you want to say anything about the invitation to quit too because that's really the source that's really the basis of the board's ruling is to the phone conversation is if i understand it right mr lee i mean swimming it's protected activity which you haven't accepted to inviting somebody to quit because of the protected activity is in fact a violation of their i would be happy to address that mr lambing testified and he tried to explain it it wasn't so much an invitation as he was trying to understand it can't possibly that be that bad you're still here you know we they offered him another position they didn't fire him they they actually were told not to fire him so it wasn't an invitation it was not a rhetorical question but it was them trying to understand if it's so bad i don't understand why you're still here you did say why are you still here but then you followed it up i said if you have a problem you need to find a different place to work isn't that an imitation of course and he offered him a different place to work in the same company and do that in the same company sure you protected activity no i'm not saying that at all i'm saying they were my point is they were trying to make him happy they didn't want to fire him they didn't want him to quit they were trying to make you happy and i offering the job that would take