Full Transcript for Litigation Update: United Natural Foods v. NLRB

General Council at the time, Peter Robb, 71 00:04:05.199 --> 00:04:09.080 in July of twenty twenty, authorized the issuance of a 72 00:04:09.120 --> 00:04:12.680 complaint against the two unions, and we had a hearing 73 00:04:12.719 --> 00:04:16.240 that was scheduled for March of twenty twenty one. And 74 00:04:16.279 --> 00:04:20.639 then the second preliminary point here relates to why the 75 00:04:20.680 --> 00:04:25.800 timeframe ends up being important in this case. The NLRB 76 00:04:26.000 --> 00:04:31.759 complaint was issued in July twenty twenty against two unions. 77 00:04:32.360 --> 00:04:38.040 President Biden won the November twenty twenty presidential election, and 78 00:04:38.240 --> 00:04:41.600 on January twentieth, twenty twenty one, for the first time 79 00:04:41.639 --> 00:04:47.040 in history, the incumbent General Council, Peter Robb, received an 80 00:04:47.079 --> 00:04:50.720 email twenty three minutes after President Biden was sworn in 81 00:04:51.439 --> 00:04:56.079 stating that if General Counsel rob did not resign by 82 00:04:56.079 --> 00:04:58.800 the end of the day he'd be fired. And at 83 00:04:58.800 --> 00:05:01.759 the time, Peter I had ten months remaining in the 84 00:05:01.839 --> 00:05:06.839 four year term specified in the Nationally Relations Acts Section 85 00:05:07.000 --> 00:05:11.519 four D, so he declined the invitation to resign, and 86 00:05:11.560 --> 00:05:15.879 he was fired on January twenty. And then three things 87 00:05:15.920 --> 00:05:20.560 happened that were significant in our case. Five days later, 88 00:05:20.879 --> 00:05:28.360 President Biden designated Peter Or as Acting General Council. And 89 00:05:28.399 --> 00:05:33.279 then on February first, basically five or six days after that, 90 00:05:34.160 --> 00:05:36.759 we filed a motion for summary judgment that placed the 91 00:05:36.800 --> 00:05:40.120 merits of the entire case before the National Relations Board. 92 00:05:41.120 --> 00:05:44.879 And then roughly three weeks later, on February twenty fourth, 93 00:05:45.759 --> 00:05:51.399 the complaint was withdrawn, which effectively extinguished the litigation against 94 00:05:51.399 --> 00:05:55.879 the two unions at the direction of the new Acting 95 00:05:55.959 --> 00:06:01.959 General Council, Peter Or. So we had two issues in 96 00:06:02.000 --> 00:06:07.720 the case, and we pursued these issues, first with the 97 00:06:07.839 --> 00:06:10.519 NLRB and then with the Court of Appeals for the 98 00:06:10.519 --> 00:06:14.319 Fifth Circuit, then with the Supreme Court, which ended up 99 00:06:14.360 --> 00:06:17.319 returning the case to the Fifth Circuit, resulting in the 100 00:06:17.480 --> 00:06:20.879 or argument that occurred on February third. And the two 101 00:06:20.920 --> 00:06:25.399 issues that we have pursued were these the first issue 102 00:06:26.279 --> 00:06:30.000 is that a nineteen eighty seven Supreme Court case involving 103 00:06:30.040 --> 00:06:37.000 the UFCW held that the General Council's unilateral discretion to 104 00:06:37.279 --> 00:06:41.680 order a complaints withdrawal ends when the case reaches the 105 00:06:41.720 --> 00:06:46.959 point of adjudication with the NLRB, and we argued before 106 00:06:47.000 --> 00:06:50.399 the Board and the Court of Appeals that upon receipt 107 00:06:50.519 --> 00:06:54.439 of our summary judgment motion, the Board at that point 108 00:06:54.600 --> 00:06:58.199 was required to evaluate the motion on the merits. That's 109 00:06:58.240 --> 00:07:03.680 an adjudication in under the Federal rules of Civil procedure. 110 00:07:03.279 --> 00:07:05.920 And Pepper is going to talk about this in more detail. 111 00:07:06.839 --> 00:07:10.759 There's a rule rule forty one a one which says 112 00:07:11.360 --> 00:07:16.319 a plaintiff in civil litigation can dismiss an action without 113 00:07:16.319 --> 00:07:21.000 a court order only if that occurs before the opposing 114 00:07:21.079 --> 00:07:25.319 party files emotion for summary judgment. In our case, before 115 00:07:25.319 --> 00:07:29.319 the NLRB, of course, we filed emotion for summary judgment, 116 00:07:29.360 --> 00:07:33.279 and our position is that requires adjudication, and that means 117 00:07:33.360 --> 00:07:36.279 it's too late at that point for the General Council to. 118 00:07:36.319 --> 00:07:40.240 Extinguish the case. The second issue. 119 00:07:39.920 --> 00:07:44.600 In the case, which is an important one, is involves 120 00:07:44.879 --> 00:07:50.639 President Biden's removal of General Counsel Peter Robb and we 121 00:07:50.800 --> 00:07:55.319 argued that all of the levels, including the NLRB and 122 00:07:55.319 --> 00:07:58.879 then the Court of Appeals for the Fifth Circuit, that 123 00:07:59.439 --> 00:08:03.319 in the sense of cause, the President lacks authority to 124 00:08:03.439 --> 00:08:07.079 routinely remove the General Council prior to the end of 125 00:08:07.079 --> 00:08:10.079 the four year term that specified for the General Council 126 00:08:10.240 --> 00:08:13.199 in one of the provisions of the National Relations Act, 127 00:08:13.439 --> 00:08:17.879 which is Section four D, and our position is in 128 00:08:17.959 --> 00:08:21.000 relation to the General Council, the Act says nothing about 129 00:08:21.040 --> 00:08:25.160 the president the president's ability to remove the General Council, 130 00:08:25.879 --> 00:08:28.920 which is in contrast with what the Act says about 131 00:08:28.920 --> 00:08:33.360 the president's ability to remove board members, because a different 132 00:08:33.399 --> 00:08:39.519 section in the Act, section for B relating to board members, 133 00:08:39.639 --> 00:08:44.840 explicitly provides for the removal board members for neglect of 134 00:08:44.960 --> 00:08:48.720 duty or malfeasance in office. And as most of you 135 00:08:48.799 --> 00:08:53.879 know who are participating in this webinar, there's also a 136

00:08:53.960 --> 00:08:58.480 theory dealing with the unitary executive which at the present time, 137 00:08:58.559 --> 00:09:05.159 President Trump appears to be pursuing to support the removal 138 00:09:05.279 --> 00:09:08.840 of any board member with or without cause, and that's 139 00:09:08.840 --> 00:09:11.679 something that's received a lot of attention by the Supreme 140 00:09:11.720 --> 00:09:16.559 Court at the present time. In my Fifth Circuit case, yes, 141 00:09:17.480 --> 00:09:23.080 that's a less important issue because that's not an issue 142 00:09:23.120 --> 00:09:27.679 that the Fifth Circuit afforded deference to in its prior decision. 143 00:09:27.759 --> 00:09:32.039 And I'll just say one last point in terms of 144 00:09:32.080 --> 00:09:36.080 where the case is procedurally. We had this case before 145 00:09:36.120 --> 00:09:38.159 the Fifth Circuit a few years ago. 146 00:09:38.879 --> 00:09:41.360 One judge, Judge Oldham, ruled for. 147 00:09:41.559 --> 00:09:47.080 Us on this summary judgment adjudication issue. The majority of 148 00:09:47.120 --> 00:09:51.639 the court, in an opinion that was written by Judge Higginson, said, 149 00:09:51.799 --> 00:09:58.279 if they were deciding the issue of summary judgment adjudication denovo, 150 00:09:58.519 --> 00:10:02.799 meaning from scratch, they might agree with us, but they 151 00:10:03.039 --> 00:10:08.240 instead were affording Chevron deference to what the NLRB decided. 152 00:10:09.600 --> 00:10:13.919 And Chevron deference involves the principle that administrative agencies should 153 00:10:13.960 --> 00:10:17.279 get deference from Courts of appeals, even if the court, 154 00:10:18.159 --> 00:10:22.960 left to its own devices, might decide the issue differently. Well, so, 155 00:10:23.320 --> 00:10:27.039 as it turned out in the prior Fifth Circuit case, 156 00:10:27.200 --> 00:10:29.919 even the majority opinion that was decided against us, that 157 00:10:30.080 --> 00:10:32.799 if they were going to decide the case the issue themselves, 158 00:10:33.600 --> 00:10:38.000 they might agree with us. And we had argued we 159 00:10:38.200 --> 00:10:42.399 preserved our position that Chevron deference should be eliminated in 160 00:10:42.480 --> 00:10:46.960 our prior appearance before the Fifth Circuit. As it turned out, 161 00:10:47.080 --> 00:10:50.600 the Court of Appeals was divided to one against us 162 00:10:50.720 --> 00:10:54.879 in the prior decision. We filed a petition for cercuary 163 00:10:55.279 --> 00:10:59.039 for review by the Supreme Court, and we asked the 164 00:10:59.080 --> 00:11:03.919 court to hold our case until after the Court decided 165 00:11:04.000 --> 00:11:09.519 the Chevron difference case that the Court ended up adjudicating 166 00:11:09.720 --> 00:11:15.080 in Loper Bright Enterprises Versus Romando. In the Loper Bright case, 167 00:11:15.200 --> 00:11:20.919 the Supreme Court eliminated Chevron difference and overruled Chevron. And 168 00:11:20.960 --> 00:11:26.200 then four days later, the Supreme Court granted insert in 169 00:11:26.360 --> 00:11:31.200 our case, vacated the Fifth Circuit decision, and then returned 170 00:11:31.200 --> 00:11:35.519 our case remanded our case to the Fifth Circuit for reconsideration. 171 00:11:35.679 --> 00:11:39.000 On that question of Chevron deference in. 172 00:11:38.879 --> 00:11:44.159 Relation to the summary judgment adjudication issue. So at this point, 173 00:11:44.200 --> 00:11:48.759 the Fifth Circuit was not directly reviewing the second issue 174 00:11:48.759 --> 00:11:51.159 in the case, which remains an important issue. That they 175 00:11:51.159 --> 00:11:57.679 were focusing on the summary judgment adjudication issue. But we're 176 00:11:57.720 --> 00:12:01.440 still actively pursuing both issues in the case, including the 177 00:12:01.559 --> 00:12:07.159 question of whether the president has the ability to routinely remove. 178 00:12:06.840 --> 00:12:10.159 The General Council. But that's not. 179 00:12:10.360 --> 00:12:13.080 Something that receives significant attention in you're working with that 180 00:12:13.200 --> 00:12:14.960 was held a week aldgo Monday. 181 00:12:16.480 --> 00:12:19.600 Before we get even weedier here, I need to go 182 00:12:19.679 --> 00:12:22.480 backwards and explain to people who aren't familiar with the 183 00:12:22.519 --> 00:12:26.679 magical mystery tour of NLRB adjudication, there are some significant 184 00:12:26.720 --> 00:12:29.120 differences you need to understand before we move on to 185 00:12:29.159 --> 00:12:32.960 the next subject of our discussion, and that is how 186 00:12:33.039 --> 00:12:37.720 the Federal Rules of Civil Procedure relate statute and regulation 187 00:12:38.320 --> 00:12:42.519 to NLRB administrative adjudication. So Section ten B of the 188 00:12:42.600 --> 00:12:45.519 National Labor Relations Acting, for those of you who aren't 189 00:12:45.519 --> 00:12:49.480 among us twenty nine USC, Section one sixty B says 190 00:12:50.159 --> 00:12:53.679 that the NLRB and it's unfaire labored practice preceding shell 191 00:12:54.000 --> 00:12:56.879 apply to the Federal Rules of Silver Procedure quote so 192 00:12:57.000 --> 00:13:02.080 far as practicable. A Board Rule one O two point 193 00:13:02.679 --> 00:13:09.159 three nine, Title twenty nine to CFR says the same thing. However, 194 00:13:09.879 --> 00:13:12.600 despite the content of Rule fifty six so the Federal 195 00:13:12.679 --> 00:13:17.679 Rules Civil Procedure governing summary judgment, another Board rule one 196 00:13:17.720 --> 00:13:21.799 O two point two four says that when responding to 197 00:13:21.919 --> 00:13:27.240 a motion for summary judgment, a party a non movement 198 00:13:27.879 --> 00:13:30.879 does not have the Rule fifty six burden to come 199 00:13:30.919 --> 00:13:35.279 forward with admissible evidence showing there's an issue for trial, 200 00:13:35.639 --> 00:13:40.440 even if

the movement has movement has come forward with 201 00:13:41.039 --> 00:13:45.639 admissible evidence showing there is not a factual issue for trial. 202 00:13:46.480 --> 00:13:52.600 And the consequence for that is that when you file 203 00:13:52.759 --> 00:13:56.120 a motion for summary judgment against the Board's General Council, 204 00:13:56.639 --> 00:13:59.840 the Board General Council can beat your summary judgment motion 205 00:14:00.120 --> 00:14:03.759 simply by saying, well, we alleged him. They can stand 206 00:14:03.840 --> 00:14:07.559 on conclusiory allegations of the unfail over practice complaint and 207 00:14:07.639 --> 00:14:11.639 beat your summary judgment motion. Now, that's because the Board 208 00:14:12.519 --> 00:14:15.879 has never liked the language. It's in Section ten B. 209 00:14:16.080 --> 00:14:20.120 It started ruling early in its history that that is 210 00:14:20.360 --> 00:14:26.519 just advisory, its guidance. It's not meant to bind the board, certainly, 211 00:14:26.559 --> 00:14:31.840 at least in its pre hearing procedures. If you want 212 00:14:31.840 --> 00:14:34.159 to go find the cases on that, it's Armstrong Cork 213 00:14:34.320 --> 00:14:39.039 in nineteen fifty five, component bar products in twenty sixteen. 214 00:14:42.039 --> 00:14:45.759 And so as a result, the Board can follow or 215 00:14:45.799 --> 00:14:49.559 not follow the Federal soil procedure at least in its 216 00:14:49.600 --> 00:14:54.000 pre hearing procedures. However, if you think the rule is 217 00:14:54.039 --> 00:14:56.559 going that doctrine is going to apply the same to 218 00:14:56.679 --> 00:15:00.120 you as a respondent before the board, you might be 219 00:15:00.519 --> 00:15:05.120 unpleasantly surprised. For example, as recently is October tenth and 220 00:15:05.240 --> 00:15:10.639 a Starbucks case. Administrate law George Ross rule that if 221 00:15:10.679 --> 00:15:13.519 you're a respondent, you receive a subpoena and you want 222 00:15:13.559 --> 00:15:17.360 to raise an attorney client privilege objection, you must comply 223 00:15:17.519 --> 00:15:21.159 strictly with Federal Rules Seal Procedure twenty six and detailed 224 00:15:21.159 --> 00:15:25.720 privilege log else you have waived that objection. So the 225 00:15:25.799 --> 00:15:28.679 board picks and chooses when to comply with the Federal 226 00:15:28.759 --> 00:15:32.320 Rules Rule fifty six and other rules, and when it 227 00:15:32.360 --> 00:15:35.759 does and when it doesn't, tend on average to significantly 228 00:15:35.879 --> 00:15:39.320 disfavor respondents before the board. Now only say one more 229 00:15:39.399 --> 00:15:43.840 thing before we get real weedy. Hear about how this 230 00:15:43.879 --> 00:15:48.919 differs from federal civil litigation. If you are so you 231 00:15:49.000 --> 00:15:52.799 represent a discrimination claimant and you persuade the EEOC to 232 00:15:52.840 --> 00:15:57.399 sue on your behalf your former employer, and

you intervene, 233 00:15:57.600 --> 00:15:59.960 or you file a separate complaint and a consolidated act, 234 00:16:00.080 --> 00:16:02.279 and so that you're there with your client and the 235 00:16:02.320 --> 00:16:05.159 EEOC is there right alongside you, and then the EOC 236 00:16:05.399 --> 00:16:08.559 decides at some point you know we don't think this 237 00:16:08.639 --> 00:16:12.039 is our fight, and they want out. They can get 238 00:16:12.080 --> 00:16:17.039 out with the court's permission, but they can't deprive you 239 00:16:17.120 --> 00:16:20.519 of your right to have your claim heard. In that case, 240 00:16:20.600 --> 00:16:23.159 and what we're arguing about here, what Philip just told you, 241 00:16:23.320 --> 00:16:26.440 is the General Council of the National Labor Relations Board, 242 00:16:26.519 --> 00:16:31.279 and that analogous situation says, not only do we have 243 00:16:31.360 --> 00:16:33.279 the right to decide this is not a fight we 244 00:16:33.320 --> 00:16:36.039 want to fight, we have the right to end the 245 00:16:36.080 --> 00:16:40.440 fight and deprive you, the ev litigant, the charging party, 246 00:16:40.759 --> 00:16:43.200 of your right to have the board to judicate your case. 247 00:16:44.039 --> 00:16:48.840 Now back to the weedier issue of when does adjudication 248 00:16:49.879 --> 00:16:53.720 start for purposes of this doctrine of when the General 249 00:16:53.759 --> 00:17:00.279 Council's discretion to end the litigation ends, and the boards 250 00:17:00.360 --> 00:17:04.200 position on that, Philip is what well. 251 00:17:04.359 --> 00:17:08.759 The Board's position in our case was that. 252 00:17:10.000 --> 00:17:16.160 The general rule remains that the General Counsel can order 253 00:17:16.240 --> 00:17:23.279 a complaint to be withdrawn, basically extinguishing the litigation unless 254 00:17:23.319 --> 00:17:29.640 and until the hearing starts before an alj And that's 255 00:17:29.720 --> 00:17:33.480 the principle that was applied in our case, and in 256 00:17:33.559 --> 00:17:36.839 general that principle makes sense. It was upheld in this 257 00:17:37.200 --> 00:17:41.079 UFCW case, which had nothing to do with summary judgment. 258 00:17:41.119 --> 00:17:44.640 If you have a normal case that's perking along at 259 00:17:44.640 --> 00:17:47.119 the point that you end up having an administrative lawd 260 00:17:47.160 --> 00:17:50.519 judge hearing that starts, especially if evidence has been introduced 261 00:17:50.519 --> 00:17:54.319 into hearing, that's too late for the prosecuting attorney to say, 262 00:17:54.359 --> 00:17:57.160 never mind, even though I issued the complaint, We're going 263 00:17:57.200 --> 00:18:00.400 to now extinguish the case at our initiative, And you 264 00:18:00.440 --> 00:18:01.839 know that's the principle the Board. 265 00:18:01.680 --> 00:18:02.640 Applied in our case. 266 00:18:02.680 --> 00:18:06.000 Of course, our response was, there's never going

to be 267 00:18:06.039 --> 00:18:09.079 a hearing in our case, given that we fought a 268 00:18:09.119 --> 00:18:11.559 motion for summary judgment, and if the motion for summary 269 00:18:11.680 --> 00:18:15.200 judgment has merit, then that's going to dispose of the 270 00:18:15.359 --> 00:18:18.440 entire case. That's why the filing emotion for some rejudgment 271 00:18:18.559 --> 00:18:22.920 constitutes just as much of an adjudication as when a 272 00:18:23.000 --> 00:18:26.240 hearing starts in a normal case that doesn't have a 273 00:18:26.279 --> 00:18:27.759 summary judgment motion file. 274 00:18:29.680 --> 00:18:34.160 And the Board's counter to your argument was based on 275 00:18:34.240 --> 00:18:39.319 President right, and the President is not exactly on point. 276 00:18:39.680 --> 00:18:43.839 It's analogous, and you persuisively argued that you can see 277 00:18:43.839 --> 00:18:46.039 it in a different way than the board season how 278 00:18:46.039 --> 00:18:48.920 did that part of the debate get well, you know, the. 279 00:18:51.079 --> 00:18:55.200 Question that came up during the most recent or argument was, well, 280 00:18:55.200 --> 00:18:58.720 we have this Supreme Court case and the Supreme Court 281 00:18:58.839 --> 00:19:02.680 decision again which had nothing to do with summary judgment 282 00:19:02.799 --> 00:19:07.759 in the course of deciding a different context, which was 283 00:19:07.920 --> 00:19:16.720 a General Council settlement of the case, which was done 284 00:19:16.799 --> 00:19:21.279 before the start of the hearing. The Supreme Court reviewed 285 00:19:21.319 --> 00:19:24.160 that and said, well, we agree with the board's decision 286 00:19:24.279 --> 00:19:29.640 that until the hearing starts, there's no adjudication. Therefore, the 287 00:19:29.720 --> 00:19:33.559 General Council can direct to withdraw the complaint in the 288 00:19:33.559 --> 00:19:37.400 context of settling the case as long as it occurs 289 00:19:37.440 --> 00:19:41.839 before the hearing. In our case, there was no hearing. 290 00:19:41.920 --> 00:19:47.200 Hearing had been scheduled, it hadn't taken place. But the 291 00:19:47.240 --> 00:19:54.519 way NLRB the rules are construed, whenever you file a 292 00:19:54.559 --> 00:19:57.839 motion for summary judgment, it goes right up to the 293 00:19:57.880 --> 00:20:02.079 five member NLRB, some times three or four members, but 294 00:20:02.160 --> 00:20:05.000 it skips the alja phase, goes up to the NLRB 295 00:20:05.200 --> 00:20:09.119 and the full NLRB is evaluating the motion by the merits. 296 00:20:09.200 --> 00:20:14.200 And so for that reason, our argument most recently in 297 00:20:14.240 --> 00:20:19.160 the session with Fifth Circuit that occurred on February third. 298 00:20:19.720 --> 00:20:25.519 I made the point that there's actually more of an 299 00:20:25.519 --> 00:20:29.359 adjudication that is of greater value, and that pushes the 300 00:20:29.400 --> 00:20:32.519 case further along in the process when you have a 301 00:20:32.559 --> 00:20:35.720 summary judgment motion filed with the full board in Washington, 302 00:20:35.839 --> 00:20:36.079 d c. 303 00:20:37.160 --> 00:20:38.240 Than you have at. 304 00:20:38.079 --> 00:20:41.599 The start of an alja hearing, where the average case 305 00:20:41.640 --> 00:20:44.400 is still two to three or three to four years 306 00:20:44.400 --> 00:20:47.880 away from even reaching the NLRB or being decided by 307 00:20:47.920 --> 00:20:48.480 the NLRB. 308 00:20:49.200 --> 00:20:52.960 Now there were in that argument, I expected the question 309 00:20:53.079 --> 00:20:56.680 to be asking. Frankly, I thought Judge Oldhen was probably 310 00:20:57.240 --> 00:20:59.720 saving it for a zinger at the end, but nobody 311 00:20:59.759 --> 00:21:02.079 ever ask it. I understand why you wouldn't want to 312 00:21:02.160 --> 00:21:06.799 raise it, but why didn't somebody on the panel, in 313 00:21:06.839 --> 00:21:13.359 your opinion, ask the Board General Counsel do some rejudgment 314 00:21:13.400 --> 00:21:17.519 procedures as understood by the National Labor Relations Board so 315 00:21:17.960 --> 00:21:22.039 favor the General Counsel that it seems to us all 316 00:21:22.079 --> 00:21:24.160 you had to say was, well, we allege it and 317 00:21:24.240 --> 00:21:26.640 you beat the summary judgment motion. Why didn't you just 318 00:21:26.759 --> 00:21:27.079 do that? 319 00:21:30.240 --> 00:21:32.519 You know, that's a good question. 320 00:21:33.440 --> 00:21:37.519 It's never been effectively answered the General Counsel. 321 00:21:37.720 --> 00:21:40.519 The acting General counsels. 322 00:21:43.759 --> 00:21:48.200 Objective in our case was to simply extinguish the case 323 00:21:48.359 --> 00:21:51.240 and not permit the board to evaluate the merits of 324 00:21:51.240 --> 00:21:51.680 our emotion. 325 00:21:52.480 --> 00:21:54.079 Well, let me ask you, let me ask a question 326 00:21:54.119 --> 00:21:55.000 this differently. 327 00:21:55.880 --> 00:21:59.240 Could not the General Council, consistent with its own theory, 328 00:21:59.359 --> 00:22:04.440 have a men, did it's complaint which controls you? You 329 00:22:04.480 --> 00:22:06.839 don't get to decide what complaint is? Right? Couldn't they 330 00:22:06.839 --> 00:22:09.960 have amended their complaint in a way that would have 331 00:22:09.960 --> 00:22:11.880 resulted in the denial of your motion. 332 00:22:13.000 --> 00:22:16.519 Well, I think they could have. But the other thing 333 00:22:16.559 --> 00:22:21.480 that I would say, Pepper, is, even without amending the complaint, 334 00:22:22.240 --> 00:22:25.359 if they had simply responded to our motion for summary 335 00:22:25.440 --> 00:22:30.400 judgment and said the motion should be denied. Because the NLRB, 336 00:22:31.160 --> 00:22:35.920 in its long history, always denies employer motions for summary judgment, 337 00:22:36.799 --> 00:22:38.319

regardless of whether there are. 338 00:22:38.359 --> 00:22:40.640 Disputed or undisputed questions. 339 00:22:40.640 --> 00:22:45.359 A fact, because in the Board's jurisprudence, having a hearing 340 00:22:45.480 --> 00:22:48.480 is always better. And as you know, because I know 341 00:22:48.559 --> 00:22:51.680 you have pulled the cases in which I dissented while 342 00:22:51.720 --> 00:22:55.880 I was serving on the board, the board's practice, in. 343 00:22:57.759 --> 00:23:00.480 I'll say the board's uniform practice, all of. 344 00:23:00.400 --> 00:23:04.039 The summary judgment cases that I adjudicated was to deny 345 00:23:04.160 --> 00:23:10.079 summary judgment and have a preference for a hearing whenever 346 00:23:10.440 --> 00:23:14.279 the General Counsel opposed a motion for summary judgment. You know, 347 00:23:14.359 --> 00:23:17.480 even if the General counsel's opposition simply said we should 348 00:23:17.519 --> 00:23:20.279 have a hearing because a hearing would be better, you know, 349 00:23:20.400 --> 00:23:24.640 or we should have a hearing because the allegations that are. 350 00:23:24.519 --> 00:23:26.119 In the complaint are disputed. 351 00:23:26.680 --> 00:23:29.960 And of course, if that's the standard, if you are 352 00:23:30.000 --> 00:23:33.319 going to deny summary judgment every time there's actually any 353 00:23:33.480 --> 00:23:36.559 kind of dispute between the parties as to the law, 354 00:23:37.400 --> 00:23:37.960 you would. 355 00:23:37.759 --> 00:23:38.920 Never have summary judgment. 356 00:23:38.960 --> 00:23:41.240 Granted, the Board might as well just write the summary 357 00:23:41.319 --> 00:23:44.119 judgment procedures out of its rules and regulations. 358 00:23:45.559 --> 00:23:49.039 And let's remind our audience we're talking about an unusual situation. 359 00:23:49.160 --> 00:23:51.400 It's the equivalent of a plane of summary judgment motion. 360 00:23:51.920 --> 00:23:55.440 Nfleral District Court is this case, and we're looking at 361 00:23:55.440 --> 00:23:58.920 it from both sides. So the question I raise is 362 00:23:59.359 --> 00:24:04.559 couldn't the Union have doing what a General Council normally 363 00:24:04.599 --> 00:24:07.319 does and says hey fact issues in be We said 364 00:24:07.319 --> 00:24:10.680 so in our answer and beaten Summery judgment motion. Or 365 00:24:10.680 --> 00:24:14.519 couldn't the General Council have said something that we control 366 00:24:14.559 --> 00:24:16.720 the theory of the complaint, and this is our theory. 367 00:24:16.759 --> 00:24:20.000 It doesn't match your emotion, and therefore don't dispose of this. 368 00:24:20.200 --> 00:24:22.279 We need a hearing to decide which theory is right, 369 00:24:22.680 --> 00:24:24.960 and that would have beaten some re judgment motion, but 370 00:24:25.039 --> 00:24:29.839 instead the General Counsel decided neither one of those will 371 00:24:29.880 --> 00:24:32.160 work for us. We just need to snatch this thing 372 00:24:32.200 --> 00:24:34.400 back from the board and not let them rule on it. 373 00:24:34.440 --> 00:24:35.559 Have I understood that correctly? 374 00:24:35.680 --> 00:24:38.960 Yeah, that's exactly what happened. And let me just clarify. 375 00:24:40.640 --> 00:24:43.559 I believe our emotion for some rey judgment had barrett 376 00:24:43.599 --> 00:24:44.799 and should have been granted. 377 00:24:45.640 --> 00:24:49.119 So when I say that the General Counsel could have 378 00:24:49.160 --> 00:24:54.200 prevailed just by opposing the motion, I'm relying on a 379 00:24:54.240 --> 00:24:57.039 long history of nal our B cases where the board 380 00:24:57.200 --> 00:25:03.119 I believe incorrectly has denied motions for summary judgment just 381 00:25:03.200 --> 00:25:08.079 because the EDLRB doesn't take seriously or has not taken seriously. 382 00:25:09.240 --> 00:25:10.359 The process of. 383 00:25:10.440 --> 00:25:14.839 Adjudicating cases based on summary judgment unless the and there's 384 00:25:14.880 --> 00:25:18.640 one exception in a technical A five case, if an 385 00:25:18.680 --> 00:25:26.880 employer has a certified union and a representation case and 386 00:25:26.920 --> 00:25:30.680 then the employer refuses to bargain, which is the only 387 00:25:30.839 --> 00:25:36.440 path that you can get an appeal from decisions made 388 00:25:36.519 --> 00:25:41.799 in the representation case. In that case, the general counsel 389 00:25:41.960 --> 00:25:47.319 responds to the employer's refusal to bargain by filing an 390 00:25:47.359 --> 00:25:50.519 unfair labor practice complaint and then filing a motion for 391 00:25:50.599 --> 00:25:54.640 summary judgment that basically says there's no dispute here, that 392 00:25:54.680 --> 00:25:57.839 the employer refused to bargain. This is the path by 393 00:25:57.839 --> 00:26:00.559 which the employer gets a Court of Appeals to review 394 00:26:00.599 --> 00:26:04.680 the representation case rulings, and then the Board routinely grants 395 00:26:04.759 --> 00:26:08.799 those general counsel motions for summary judgment. But in a 396 00:26:09.000 --> 00:26:13.240 regular unfair labor practice case, where there are actual factual 397 00:26:13.319 --> 00:26:17.680 events that contribute to a finding that a violation of 398 00:26:17.720 --> 00:26:19.920 the Act did occur or a violation of the Act 399 00:26:19.920 --> 00:26:24.839 did not occur, the Board almost never, and during my 400 00:26:25.000 --> 00:26:29.839 tenure on the Board never to my knowledge, granted a party's. 401 00:26:29.400 --> 00:26:30.720 Motion for summary judgment. 402 00:26:30.720 --> 00:26:33.720 Those were uniformly denied, and that's one of the reasons 403 00:26:33.720 --> 00:26:37.559 why in a succession of cases I descended from the 404 00:26:37.559 --> 00:26:42.079 Board's refusal to either grant summary judgment or at least 405 00:26:42.839 --> 00:26:45.799 issue a notice to show cause so that the

parties 406 00:26:45.799 --> 00:26:49.839 would have to file more meaningful response to another party's 407 00:26:49.880 --> 00:26:51.079 motion for summary judgment. 408 00:26:51.440 --> 00:26:53.160 So, for those of you who would like to look 409 00:26:53.240 --> 00:26:57.640 these cases up, my favorite three of those decisions are 410 00:26:57.720 --> 00:27:03.960 the Lahoist Lhoist North America case in twenty fifteen, the 411 00:27:04.079 --> 00:27:08.359 Leukemia and Lymphoma Society case in twenty sixteen, and the 412 00:27:08.440 --> 00:27:13.759 glass Fabricator's case in twenty seventeen, which I have summed 413 00:27:13.799 --> 00:27:16.759 up in talking to others about this subject. As member 414 00:27:16.839 --> 00:27:19.960 Ms Kamira is saying to his fellow members, come on, man, 415 00:27:22.200 --> 00:27:25.000 the party following the summary judgment motion, did everything we 416 00:27:25.079 --> 00:27:27.200 ask them to do, show us that there's no issue 417 00:27:27.240 --> 00:27:29.759 for trial and that they're entitled to a judgment in 418 00:27:29.799 --> 00:27:32.960 their favor as a matter of law. And we let 419 00:27:32.960 --> 00:27:36.559 the opposing party say we want a trial and they 420 00:27:36.599 --> 00:27:41.839 get a trial. That's basically what happened, right, Yeah. 421 00:27:42.000 --> 00:27:46.240 And you know the unfortunate thing about this is, if 422 00:27:46.279 --> 00:27:49.960 you take, for example, a work rules case, the board 423 00:27:50.480 --> 00:27:54.000 has had dozens, i think at this point hundreds of 424 00:27:54.119 --> 00:27:59.440 decisions where if an employer has a confidentiality agreement or 425 00:28:00.160 --> 00:28:04.519 if the employer maintains a code of conduct that requires 426 00:28:04.559 --> 00:28:09.240 employees to foster harmonious interactions and relationships with one another. 427 00:28:10.000 --> 00:28:13.279 There have been a lot of cases that say that type. 428 00:28:13.000 --> 00:28:15.400 Of a work rule or a code of conduct or 429 00:28:15.400 --> 00:28:19.839 an employee handbook provision violates the Act because it interferes 430 00:28:19.920 --> 00:28:23.920 with some type of protected conduct that employees may want 431 00:28:23.960 --> 00:28:29.119 to engage in. Well, there's no factual dispute in those cases, 432 00:28:29.559 --> 00:28:32.759 and the Board has had dozens and hundreds of those cases. 433 00:28:33.440 --> 00:28:36.400 There's no factual dispute. The rule sys what it says. 434 00:28:37.640 --> 00:28:41.720 These rules are typically evaluated on their face, and there's 435 00:28:41.759 --> 00:28:45.119 no reason that a case like that needs to spend 436 00:28:45.759 --> 00:28:49.000 two or three years going through administrative lodge hunt hearing 437 00:28:49.599 --> 00:28:52.279 when the issues are ripe as soon as a complaint 438 00:28:52.279 --> 00:28:56.079 issues for the board to simply decide does the language 439 00:28:56.119 --> 00:28:59.559 pass muster, is it lawful, is it sufficient, or is 440 00:28:59.599 --> 00:29:06.440 it unlawful in terms of its restriction against potential protective rights. 441 00:29:07.160 --> 00:29:10.200 And I used to say when I served on the board, 442 00:29:10.240 --> 00:29:13.920 parties cannot afford to win NLRB cases because of the 443 00:29:14.000 --> 00:29:16.799 length of time it takes just to get through the process. 444 00:29:16.839 --> 00:29:21.400 So summary judgment plays a very important role in other 445 00:29:21.480 --> 00:29:24.720 types of civil litigation when you're in the courts, and 446 00:29:24.880 --> 00:29:29.119 my position in some of the cases that Pepper described was, 447 00:29:29.680 --> 00:29:32.319 as long as we have rules and regulations at the 448 00:29:32.440 --> 00:29:38.039 NRB that provide for summary judgment procedures and the identical 449 00:29:38.119 --> 00:29:41.720 standard governing summary judgment, which is whether a disputed question 450 00:29:41.799 --> 00:29:45.519 of material fact exists or does not exist, the Board 451 00:29:45.559 --> 00:29:48.599 to treat summary judgment motions with the same seriousness that 452 00:29:48.640 --> 00:29:53.440 the Board treats cases that go through the AOJ hearing process. 453 00:29:53.519 --> 00:29:57.079 And then there are a subject of exceptions file with the Board, 454 00:29:57.720 --> 00:29:59.000 but that has not happened. 455 00:29:59.359 --> 00:30:02.279 If ill about to ask you to revolte litigation strategy, 456 00:30:02.480 --> 00:30:04.680 feel free to tell me to mind my own business. 457 00:30:05.200 --> 00:30:08.279 But another thing that I thought would come up, and 458 00:30:08.440 --> 00:30:12.799 I think you baited the NLRB to argue when you 459 00:30:13.279 --> 00:30:16.480 analogize to Rule forty one or the rules of civil procedure, 460 00:30:16.559 --> 00:30:20.200 I thought you were a bating posing counsel to come 461 00:30:20.279 --> 00:30:23.599 up with, well, that's a federal rule. Well, we don't 462 00:30:23.640 --> 00:30:28.240 consider that practicable. The statute only requires us to follow 463 00:30:28.279 --> 00:30:30.759 the federal rules so far as practicable, and it's not 464 00:30:30.880 --> 00:30:34.640 practicable in this context. For these reasons, was that what 465 00:30:34.680 --> 00:30:39.599 you were doing, Well, you know, it's conspicuous in our case. 466 00:30:39.480 --> 00:30:43.279 That the NLRB and the Union. 467 00:30:43.599 --> 00:30:47.720 Neither of them indicated why the rule that applies civil 468 00:30:47.759 --> 00:30:53.759 litigation was not practicable to be applied in our case. 469 00:30:55.079 --> 00:31:00.559 But you know, because the it's true that it's. 470 00:31:00.240 --> 00:31:03.000 True that rule Section tend Be in the Act says 471 00:31:03.039 --> 00:31:07.440 that the rules of civil procedure shall be applied to 472 00:31:07.519 --> 00:31:12.400 the extent. Well, the language is so far

as practicable 473 00:31:14.480 --> 00:31:18.759 because of that wiggle happens to be in the language. 474 00:31:19.039 --> 00:31:23.359 I indicated in my oral argument that with that question, 475 00:31:24.000 --> 00:31:27.960 that language in the Act favors our position. But we 476 00:31:28.079 --> 00:31:31.519 thought the most direct and straightforward way to look at 477 00:31:31.559 --> 00:31:35.319 our case was we filed a motion for summary judgment 478 00:31:35.359 --> 00:31:38.400 that put the merits to the entire case before the 479 00:31:38.400 --> 00:31:40.240 five member board in Washington, d C. 480 00:31:40.640 --> 00:31:43.400 The three four or five member board in Washington. 481 00:31:43.079 --> 00:31:43.279 D C. 482 00:31:44.119 --> 00:31:47.440 The Board's rules require that motion to be evaluated on 483 00:31:47.559 --> 00:31:51.839 the merits. Evaluating emotion for summary judgment on the merits 484 00:31:51.920 --> 00:31:57.119 constitutes and adjudication. And the Supreme Court in the USCW 485 00:31:57.880 --> 00:32:02.039 case held that when the nlr BE engaged and exercises 486 00:32:02.160 --> 00:32:07.160 it's a judicatory authority, then that curtails the General Counsel's 487 00:32:08.640 --> 00:32:13.480 ability to unilaterally extinguish the case by ordering the withdrawal 488 00:32:13.519 --> 00:32:16.759 of the complaint. And I think both of those things 489 00:32:16.799 --> 00:32:18.720 are true. What I just said I think is true, 490 00:32:18.759 --> 00:32:20.079 but it's also. 491 00:32:19.920 --> 00:32:20.559 True the. 492 00:32:22.279 --> 00:32:25.400 NLRB and or the union in our case should have 493 00:32:25.599 --> 00:32:29.240 explained why it was that just adhering to the federal 494 00:32:29.319 --> 00:32:32.079 rules was not practicable, and they failed to do that. 495 00:32:32.519 --> 00:32:36.039 So I'm asking to spill some beings based on your 496 00:32:36.039 --> 00:32:40.640 experience on the NLRB, because I expected Judge Higginson to 497 00:32:40.759 --> 00:32:46.039 ask you, well, if the Board didn't care that the 498 00:32:46.079 --> 00:32:51.000 General Council did this to its complaint, why should we, 499 00:32:52.599 --> 00:32:55.880 And I suspect there's some internal board reason why the 500 00:32:55.920 --> 00:33:00.440 Board may not have a procedure to deal with this problem, 501 00:33:00.599 --> 00:33:03.319 or why it doesn't care. You know anything about that, 502 00:33:04.119 --> 00:33:04.319 you know? 503 00:33:05.119 --> 00:33:10.160 The only thing that I can say is that there's 504 00:33:10.200 --> 00:33:15.319 a reason that my descending opinions dealing with summary judgment 505 00:33:15.400 --> 00:33:18.960 in the cases that you mentioned were descending opinions. The 506 00:33:19.079 --> 00:33:23.839 NLRB has never really adjusted or revised its rules and 507 00:33:23.920 --> 00:33:29.000 regulations so that summary judgment procedures are taken seriously by. 508 00:33:28.839 --> 00:33:32.640 The board, And. 509 00:33:32.160 --> 00:33:36.960 In our case, when the issues that we've been discussing 510 00:33:37.440 --> 00:33:42.079 got to the NLRB and they did, the NLRB simply 511 00:33:42.119 --> 00:33:48.400 applied the statement in the NLRB's Rules and Regulations. It's 512 00:33:48.440 --> 00:33:52.039 section one two point one eight that says a complaint 513 00:33:52.039 --> 00:33:55.119 may be withdrawn before the hearing by the Regional Director 514 00:33:55.880 --> 00:33:59.119 on the director's own motion, and that that language has 515 00:33:59.160 --> 00:34:03.359 been interpreted to mean the regional director, as ordered by 516 00:34:03.359 --> 00:34:07.240 the General Counsel, can do whatever at once, including withdrawing 517 00:34:07.279 --> 00:34:12.159 the complaint prior to the hearing. The interesting thing in 518 00:34:12.159 --> 00:34:17.760 our case was that the dissenting Judge Oldham, who agreed 519 00:34:17.800 --> 00:34:22.239 with us in the decision issued several years ago by 520 00:34:22.280 --> 00:34:26.320 the Fifth Circuit, and he clearly agreed with us in 521 00:34:26.400 --> 00:34:29.280 his questions from the bench during the order argument to us. 522 00:34:29.280 --> 00:34:30.559 How a week and a half ago. 523 00:34:31.320 --> 00:34:37.639 He noted that the language in this NLRB rules, section 524 00:34:37.920 --> 00:34:41.000 one h two point one eight, it says a complaint 525 00:34:41.000 --> 00:34:44.880 may be withdrawn before the hearing by the regional Director 526 00:34:45.039 --> 00:34:46.599 on the director's. 527 00:34:46.039 --> 00:34:49.840 Own motion, and that seems to suggest. 528 00:34:50.159 --> 00:34:54.719 That means the regional director can't simply withdraw the complaint. 529 00:34:54.920 --> 00:34:58.599 The regional director has to file a motion to withdraw 530 00:34:58.639 --> 00:35:00.880 the complaint, and that means the motion needs to be 531 00:35:00.960 --> 00:35:04.679 evaluated by the board, which didn't happen in our. 532 00:35:04.559 --> 00:35:06.880 Case, and which would square it with the federal rules 533 00:35:06.960 --> 00:35:09.440 over sage or Rule forty one. Correct, Yeah, exactly. 534 00:35:09.559 --> 00:35:13.280 You have two sides that are filing motion that the 535 00:35:13.320 --> 00:35:16.679 Regional Director, as ordered by the General Council, could file 536 00:35:16.719 --> 00:35:20.639 a motion to simply have the complaint withdrawn, and we 537 00:35:20.679 --> 00:35:23.519 had a pending motion for some rejudgment, and then the 538 00:35:23.519 --> 00:35:26.280 Board would be in the position of evaluating both motions. 539 00:35:26.679 --> 00:35:29.480 But in this case, the Board held that the Board 540 00:35:29.480 --> 00:35:35.079 actually didn't evaluate anything except to uphold the interpretation that 541 00:35:35.159 --> 00:35:39.400 the Regional Director could extinguish the case at any time 542 00:35:39.440 --> 00:35:44.199 it

wanted prior to the start of hearing. And the 543 00:35:44.280 --> 00:35:48.599 absurd outcome if you extend that logic, is if our 544 00:35:48.679 --> 00:35:53.159 motion had merit, and if the Board decided the case 545 00:35:53.320 --> 00:35:58.519 in our favor without having any hearing, then that would 546 00:35:58.599 --> 00:36:01.920 mean there never was any judication the way that the 547 00:36:02.599 --> 00:36:05.440 word adjudication has been used in these cases, and that's 548 00:36:05.559 --> 00:36:06.840 an untenable outcome. 549 00:36:07.159 --> 00:36:09.920 Adjudicating a case and deciding. 550 00:36:09.480 --> 00:36:11.719 The merits of a case based on summary judgment is 551 00:36:11.760 --> 00:36:15.519 every bit as much an adjudication as if the board 552 00:36:15.639 --> 00:36:19.239 decides the case after it's gone through a hearing. Before 553 00:36:19.239 --> 00:36:22.719 an administrative law judge and then evaluated exceptions filed from 554 00:36:22.719 --> 00:36:23.400 that decision. 555 00:36:24.719 --> 00:36:27.119 I had never practiced labor law, and I were listening 556 00:36:27.440 --> 00:36:30.719 to Peppercrutcher and Philip miss Kamara have this discussion. I 557 00:36:30.719 --> 00:36:32.880 would think I would I had gone through the looking 558 00:36:32.920 --> 00:36:39.800 glass and this can't be right. So I suppose we'll 559 00:36:39.800 --> 00:36:42.320 have some questions and it's about questions and answer time. 560 00:36:43.159 --> 00:36:44.719 Phil do you have anything else you want to say 561 00:36:44.760 --> 00:36:46.519 before we turn those questions and answers? 562 00:36:46.960 --> 00:36:49.760 No, I'm happy to answer answer some questions. 563 00:36:50.039 --> 00:36:53.880 I will just say that the timing of the hearing 564 00:36:53.960 --> 00:36:57.000 that occurred a week and a half ago on February third, 565 00:36:57.280 --> 00:37:00.760 was difficult for the n RB because at the time 566 00:37:00.840 --> 00:37:04.000 there was no acting General counsel. There was no general counsel, 567 00:37:04.079 --> 00:37:08.199 nor was there an acting General counsel. And you know, 568 00:37:08.280 --> 00:37:10.960 two of the judges, Judge Higgotsson and Judge Olden, both 569 00:37:11.000 --> 00:37:15.880 asked the attorney representing the NLRB, who do you represent here? 570 00:37:16.599 --> 00:37:21.280 And has the general counsel changed their view regarding this case? 571 00:37:21.360 --> 00:37:24.440 And it was those were questions that were difficult for 572 00:37:24.480 --> 00:37:27.159 the NLRB to answer because at the time of the hearing, 573 00:37:28.800 --> 00:37:31.079 at the time of the or argument, there actually was 574 00:37:31.159 --> 00:37:33.840 no acting General counsel at the board. 575 00:37:34.559 --> 00:37:36.920 I must say, I thought your counterpart did a very 576 00:37:36.920 --> 00:37:39.400 good job with the argument she had available to her, 577 00:37:40.800 --> 00:37:43.480 but that one clearly came out of left field, and 578 00:37:43.559 --> 00:37:48.000 she gave the only answer she could, which was, I'm 579 00:37:48.079 --> 00:37:50.679 in the Borso division. This is my job. I was 580 00:37:50.719 --> 00:37:52.840 told to go do this, and I'm doing it. That's 581 00:37:52.880 --> 00:37:55.960 all I can say. I can't tell you what the 582 00:37:56.000 --> 00:38:00.199 current general counsel position is. I don't know, but I'm 583 00:38:00.199 --> 00:38:01.880 beer legitimately on behalf of the board. 584 00:38:04.480 --> 00:38:06.440 That was her response. 585 00:38:06.719 --> 00:38:11.320 And I was asked by Judge Higginson, has the acting 586 00:38:11.400 --> 00:38:15.599 General counsel turned over at the board? And my response was, 587 00:38:16.599 --> 00:38:19.760 the acting General counsel has turned over or is in 588 00:38:19.800 --> 00:38:22.880 the process of turning over. And as it turned out, 589 00:38:22.920 --> 00:38:26.599 within about thirty minutes after the conclusion of your argument, 590 00:38:28.920 --> 00:38:33.679 the President Trump designated Bill Cowen, the regional director for 591 00:38:33.760 --> 00:38:36.920 Reaching twenty one in Los Angeles, to be the acting 592 00:38:37.000 --> 00:38:40.039 General Counsel. But those two things occurred almost in real 593 00:38:40.079 --> 00:38:43.679 time simultaneously. 594 00:38:45.480 --> 00:38:49.039 All Right, we are now looking for questions from the audience. 595 00:38:50.559 --> 00:38:56.159 We have any questions in Philip Banana, I promised you 596 00:38:56.199 --> 00:38:58.880 could spend several more hours discussing this. What you have 597 00:38:58.960 --> 00:39:03.480 gotten here from us so far is a thumbnail sketch 598 00:39:03.519 --> 00:39:06.800 of what we think on these issues. If you'd like 599 00:39:06.920 --> 00:39:11.159 to see in more detail what Philip thinks, you can 600 00:39:11.199 --> 00:39:13.880 go read his descents, which you're published by the National 601 00:39:13.920 --> 00:39:17.880 Labor Relations Board, or you can go see the law 602 00:39:17.920 --> 00:39:20.760 review article published in the Missipi Law Journal in twenty 603 00:39:20.800 --> 00:39:23.280 twenty three that I wrote on the subject of the 604 00:39:23.320 --> 00:39:27.519 extent to which Rule fifty six actually binds the board 605 00:39:27.559 --> 00:39:33.000 and it's unfairly with practice proceedings. And you can guess 606 00:39:33.039 --> 00:39:37.559 the position that I took in that, and I'll be 607 00:39:37.559 --> 00:39:47.679 happy to answer questions about that if you like. I 608 00:39:47.800 --> 00:39:56.000 have a chat but not a question. Okay, looks like 609 00:39:56.039 --> 00:39:58.280 we have a few questions, but my question. The window 610 00:39:58.400 --> 00:40:02.079 is not showing questions. Oddly. 611 00:40:03.360 --> 00:40:05.079 Yeah, I'm also seeing. 612 00:40:04.840 --> 00:40:09.559 The uh, the chat feature, but I'm not seeing

which 613 00:40:09.559 --> 00:40:13.119 indicates there are questions, but I'm not seeing the questions themselves. 614 00:40:13.440 --> 00:40:20.000 So there's a Q and a excuse me, Pepper, there's 615 00:40:20.039 --> 00:40:23.119 a Q and A separate from the chat feature. 616 00:40:23.239 --> 00:40:24.920 If you go over three. 617 00:40:24.719 --> 00:40:29.159 That's where I am, and it's not showing any questions. So, Marco, 618 00:40:29.199 --> 00:40:33.320 if you were actually seeing questions from our several dozen participants, 619 00:40:33.360 --> 00:40:35.400 would you tell us what those questions might be because 620 00:40:35.400 --> 00:40:39.199 we can't see them on our link. Yeah, we have 621 00:40:39.280 --> 00:40:40.039 one question. 622 00:40:40.320 --> 00:40:44.519 What about Jarcasy regarding the boards refusal to hear summary 623 00:40:44.599 --> 00:40:45.559 judgment cases. 624 00:40:49.719 --> 00:40:52.599 Okay, pl Ipe, you want to take that first. 625 00:40:54.519 --> 00:41:02.280 Yeah, I'm not sure that Jarcusy specifically addresses that, although 626 00:41:02.360 --> 00:41:06.840 ironically the U and I've always said Jarkisi, which I 627 00:41:06.840 --> 00:41:10.719 think is the wrong pronunciation of the name. But the 628 00:41:10.760 --> 00:41:15.760 Fifth Circuit decision in Jarcassy actually indirectly supports our position 629 00:41:15.880 --> 00:41:21.960 that the President Biden lacked the authority to routinely remove 630 00:41:22.880 --> 00:41:26.760 the former General Council Peter Robb because at the Fifth 631 00:41:26.760 --> 00:41:30.039 Circuit and jarkis Z I'll mention for everyone is a 632 00:41:30.079 --> 00:41:33.239 case that also originated in the Fifth Circuit, went up 633 00:41:33.280 --> 00:41:36.000 to the Supreme Court and then the Supreme Court, and 634 00:41:36.079 --> 00:41:40.920 the jerk c decision issued a very important opinion about 635 00:41:41.360 --> 00:41:45.679 the extent of permissible damages, and the court held that 636 00:41:45.760 --> 00:41:50.679 if an administrative agency awards damages that exceed makehole relief 637 00:41:51.119 --> 00:41:55.159 basically get into the realm of legal relief, that violates 638 00:41:55.199 --> 00:41:57.400 the Seventh Amendment right to jury trial. 639 00:41:58.039 --> 00:42:00.679 Which can only be conducted by an Article three re court. 640 00:42:01.440 --> 00:42:02.519 That's very important. 641 00:42:02.559 --> 00:42:06.519 But there's another piece of the jarkis Fifth Circuit opinion 642 00:42:06.599 --> 00:42:11.400 dealing with the Securities in Exchange Act and whether Securities 643 00:42:11.639 --> 00:42:16.039 and Exchange Commission commissioners can be removed by the President. 644 00:42:16.840 --> 00:42:20.679 And the court's decision indicates that they cannot be removed 645 00:42:20.679 --> 00:42:24.800 by the President, which is in conflict with how that 646 00:42:24.880 --> 00:42:28.880 issue was resolved by the Fifth Circuit in our case. 647 00:42:31.760 --> 00:42:34.280 I have a new question that actually hits close to 648 00:42:34.360 --> 00:42:38.480 home here. The question is, many practitioners think that soary 649 00:42:38.519 --> 00:42:41.400 judgment is a dead letter the n LRB because someonet 650 00:42:41.639 --> 00:42:46.719 all cases determined on witness credibility in order to insulate 651 00:42:46.760 --> 00:42:50.159 the decision from review. And then the question goes on 652 00:42:50.199 --> 00:42:55.360 to relate a seemingly absurd case that he had which 653 00:42:56.280 --> 00:43:02.960 credibility of one witness who was inherently incredible was used 654 00:43:02.960 --> 00:43:09.480 as a basis for ruling against his client. Well, I 655 00:43:09.599 --> 00:43:13.559 hesitate to ascribe bad motives to people who I don't 656 00:43:13.599 --> 00:43:17.440 personally know unless I have really strong evidence of the 657 00:43:17.480 --> 00:43:23.639 bad motive. And I and Tammy McCutcheon and Chris Murray 658 00:43:23.760 --> 00:43:27.880 and Alex McDonald and spent the last fourteen months analyzing 659 00:43:27.960 --> 00:43:31.800 three hundred and fourteen in LARB Administrative Law judge's decisions 660 00:43:32.360 --> 00:43:35.960 looking at this as well as other issues, and I 661 00:43:36.000 --> 00:43:39.480 hope that will be published sometime soon. It's about fifty 662 00:43:39.480 --> 00:43:44.440 pages and about one hundred and fifty footnotes. But what 663 00:43:44.480 --> 00:43:47.239 I can tell you from that is there is good 664 00:43:47.280 --> 00:43:51.760 reason to suspect that that's going on. That is, some 665 00:43:52.039 --> 00:43:58.480 aljs in some cases do seem to lean heavily on 666 00:43:58.559 --> 00:44:07.480 witness credibility, especially when ruling against employer respondents. And again, 667 00:44:07.559 --> 00:44:11.440 I don't want to impugne the motives of any particular ALJ, 668 00:44:13.039 --> 00:44:16.320 but there is reason to suspect, based on that evidence, 669 00:44:16.440 --> 00:44:21.719 that there is a systemic problem that needs a systemic solution. 670 00:44:23.039 --> 00:44:26.159 I agree with the questioner that that is the practical 671 00:44:26.199 --> 00:44:30.440 effect of not being willing to treat respond in sumary 672 00:44:30.519 --> 00:44:33.480 judgment motions seriously. That is, they then go into an 673 00:44:33.480 --> 00:44:39.199 evidence you're hearing in which adverse credibility determinations can sometimes 674 00:44:39.280 --> 00:44:44.280 often do determine the result. Philip, what's your analysis of that? 675 00:44:44.840 --> 00:44:46.320 Well, I think that. 676 00:44:48.280 --> 00:44:54.360 The summary judgment procedures provide for the possibility of having 677 00:44:54.639 --> 00:45:00.639 declarations and affidavits submitted with summary judgment motions, And in. 678 00:45:00.559 --> 00:45:03.159 One of the cases in which I descended this was the. 679 00:45:04.800 -->

00:45:20.000 Leukemia and Lymphoma Society, which included sworn declarations and appendix 680 00:45:20.039 --> 00:45:25.800 that included the employee handbook, provisions and various pages of emails. 681 00:45:25.840 --> 00:45:29.039 And I agree that this is kind of the premise 682 00:45:29.280 --> 00:45:34.280 of the question. I agree that the mere existence of 683 00:45:34.440 --> 00:45:40.679 witness testimony that ends up supporting summary judgment doesn't automatically 684 00:45:40.719 --> 00:45:44.840 convert the issue into one involving credibility. And so if 685 00:45:44.840 --> 00:45:48.280 you have a single witness who testifies at the hearing 686 00:45:48.320 --> 00:45:52.719 and there's no contrary testimony from any other witness, I 687 00:45:52.760 --> 00:45:56.400 think that's evidence which is unrebutdded, regardless of whether you 688 00:45:56.559 --> 00:46:02.000 believe or disbelieve the witness in question, robuded evidence. And 689 00:46:02.119 --> 00:46:05.239 same thing in a summary judgment motion where there are 690 00:46:05.360 --> 00:46:09.480 declarations from one or more witnesses. The fact that those 691 00:46:09.519 --> 00:46:13.480 witnesses might be disbelieved if they were to testify to 692 00:46:13.559 --> 00:46:17.159 hearing I don't think is enough to warrant denying the 693 00:46:17.159 --> 00:46:19.960 motion for some rey judgment. I think the party opposing 694 00:46:20.440 --> 00:46:23.599 a motion for summary judgment has a burden of establishing 695 00:46:24.079 --> 00:46:29.599 some dispute as to particular facts that potentially affect the outcome. 696 00:46:31.000 --> 00:46:35.119 But it's for sure the case that in opposing motions 697 00:46:35.119 --> 00:46:40.800 for summary judgment, the General Counsel would The oppositions filed 698 00:46:40.840 --> 00:46:44.400 by the General Council often make reference to the possibility 699 00:46:44.440 --> 00:46:48.639 of credibility disputes that might emerge if a hearing is conducted. 700 00:46:49.400 --> 00:46:52.360 But that puts the card before the horse. I think 701 00:46:52.400 --> 00:46:53.679 that you still have. 702 00:46:53.800 --> 00:46:57.320 The Board's duty is to still fairly a dispassion of 703 00:46:57.400 --> 00:47:01.039 the evaluate whether there should be a hearing, and that 704 00:47:01.079 --> 00:47:04.119 requires an adjudication of the summary judgment mo seaw on 705 00:47:04.119 --> 00:47:04.599 its face. 706 00:47:06.079 --> 00:47:08.840 The next question is are there other Federals civil procedure 707 00:47:08.920 --> 00:47:12.039 that the Board does not follow? I have a favorite. 708 00:47:12.920 --> 00:47:15.960 There are some Board cases in which the General Counsel 709 00:47:16.280 --> 00:47:20.079 essentially claims that the employer engaged in a sham transaction, 710 00:47:20.639 --> 00:47:24.400 a civil fraud, in order to avoid an obligation under 711 00:47:24.400 --> 00:47:27.519 the National Labor Relations Act. And there are cases in 712 00:47:27.559 --> 00:47:33.000 which an employer, faced with a charge claims that it's 713 00:47:33.039 --> 00:47:36.320 not what you think it is. This wasn't a legitimate 714 00:47:36.320 --> 00:47:39.599 request or demand or position of the union. They were 715 00:47:39.679 --> 00:47:42.559 engaged in a fraud. Here, let me explain it to 716 00:47:42.639 --> 00:47:45.840 you why we shouldn't have been required to respond to 717 00:47:45.920 --> 00:47:48.159 that as you think we should have been. And it 718 00:47:48.239 --> 00:47:51.000 was the union that was engaged in bad faith, not us. 719 00:47:51.480 --> 00:47:55.159 And in those two classes of cases, the Board has 720 00:47:55.280 --> 00:47:58.880 traditionally said that the general Council's complaint against the employer 721 00:47:59.000 --> 00:48:03.239 is not required to plead fraud with specificity under federal 722 00:48:03.320 --> 00:48:08.239 rules Supersedar nine. But the employer's defense to the charge 723 00:48:08.800 --> 00:48:12.159 based on the union committing fraud against the employer must 724 00:48:12.159 --> 00:48:16.360 plead fraud with specificity under rule nine. And those two 725 00:48:16.400 --> 00:48:18.840 classes of cases don't talk to each other. And if 726 00:48:18.840 --> 00:48:22.280 you cite them back to the Board and I have 727 00:48:22.440 --> 00:48:26.800 done it, I have gotten the fam summary denial left 728 00:48:26.800 --> 00:48:31.559 no explanation ruling. So yes, there are cases in which 729 00:48:31.599 --> 00:48:34.920 the Board either doesn't apply with federal rules or applies 730 00:48:34.960 --> 00:48:39.440 them differently to the parties before the board. Philip, you 731 00:48:39.480 --> 00:48:43.719 aware any other examples, well, Rule twenty six, discovery rule 732 00:48:43.760 --> 00:48:46.719 thirty three, Rule thirty I would just. 733 00:48:50.960 --> 00:48:53.360 Yeah, depositions and you can go if you compare the 734 00:48:53.440 --> 00:48:57.639 Board's rules and regulations on the one hand, and then. 735 00:48:57.360 --> 00:48:58.039 The rule. 736 00:49:00.119 --> 00:49:02.719 Of civil receipts that apply in the federal district courts. 737 00:49:03.199 --> 00:49:05.719 I mean, there are many, many differences, and some of 738 00:49:05.719 --> 00:49:10.480 them are in the nature of streamlining, given that the NLRB. 739 00:49:10.239 --> 00:49:11.440 Doesn't follow. 740 00:49:12.719 --> 00:49:15.159 The discovery practices that are. 741 00:49:16.719 --> 00:49:18.400 Applicable in the federal courts. 742 00:49:18.480 --> 00:49:21.159 But you know, some of them are in the nature 743 00:49:21.159 --> 00:49:23.199 of streamlining, and some of them are in the nature 744 00:49:23.199 --> 00:49:29.880 of I think more haphazard litigation. And but the treatment 745 00:49:29.920 --> 00:49:34.360 of summary judgment. That's kind of a level one fundamental 746 00:49:34.639 --> 00:49:39.559 issue in terms of how NLRB

litigation proceeds. And you know, 747 00:49:39.639 --> 00:49:43.360 there are many, many different subsidiary issues where the rules 748 00:49:43.599 --> 00:49:46.000 of evidence and the rules of civil procedure different from 749 00:49:46.159 --> 00:49:50.679 NLRB practice, and that's a source of frustration, I think 750 00:49:50.719 --> 00:49:54.400 on an ongoing basis that affects all of the parties 751 00:49:54.400 --> 00:49:55.480 that appear before the Board. 752 00:49:56.480 --> 00:50:00.039 Another question the court's recent ruly and I take the 753 00:50:00.119 --> 00:50:05.400 question here is speaking of Starbucks versus McKinney, The court's 754 00:50:05.519 --> 00:50:08.119 recent ruining requiring the Board to apply with Rule sixty 755 00:50:08.119 --> 00:50:12.159 five injunction standards and DNJ cases, suggests an argument to 756 00:50:12.199 --> 00:50:16.039 require the Board to comply with other rusles that were procedure. 757 00:50:17.400 --> 00:50:18.559 Do you see it that way built? 758 00:50:19.320 --> 00:50:23.880 I think directionally, yes, and the fact that the NLRB 759 00:50:26.000 --> 00:50:29.760 previously in about half of the circuits would go in 760 00:50:29.920 --> 00:50:33.000 to seek an injunction, which all of the federal district 761 00:50:33.000 --> 00:50:37.679 courts regard as extraordinary relief and essentially say that the 762 00:50:37.719 --> 00:50:40.920 court's role was reduced to a rubber. 763 00:50:40.599 --> 00:50:43.559 Stamp of what the NLRB sought. 764 00:50:44.679 --> 00:50:48.159 You know, that was soundly rejected by the Supreme Court 765 00:50:48.280 --> 00:50:52.000 in you know, the Starbucks ten j junction case. And 766 00:50:52.320 --> 00:50:57.960 I think directionally that moves towards greater uniformity, especially on 767 00:50:58.440 --> 00:51:01.920 these more fundamental issues. Certainly getting in jumped a reliefs one. 768 00:51:02.719 --> 00:51:06.440 The treatment of summary disposition of cases, which has received 769 00:51:06.480 --> 00:51:10.039 a lot of attention in some important Supreme Court decisions. 770 00:51:11.440 --> 00:51:14.079 That's another one I think that has fundamental importance. 771 00:51:16.920 --> 00:51:19.280 I know the regional director involved in that case, and 772 00:51:19.360 --> 00:51:21.519 I was sad that her name got tagged on that 773 00:51:21.639 --> 00:51:25.960 because she was just she was just effectuating board policy. 774 00:51:26.000 --> 00:51:29.119 And it's said that ABEL law students are going to 775 00:51:29.159 --> 00:51:31.480 be taught that Kathy McKinney was the big loser in that. 776 00:51:32.280 --> 00:51:33.760 I don't think she was. I think it was an 777 00:51:33.760 --> 00:51:37.599 institutional issue, not a problem with a particular regional director. 778 00:51:39.679 --> 00:51:47.039 Any other question, yes, Okay, the question says, to a 779 00:51:47.079 --> 00:51:51.760 certain extent, isn't liberal summary judgment practice of the quid 780 00:51:51.800 --> 00:51:56.440 pro quote for liberal discovery such an absent preeing discovery 781 00:51:56.519 --> 00:52:00.960 summary judgment would have to wait until the board's presentation 782 00:52:01.039 --> 00:52:06.039 of evidence. Boy, we could spend the rest of the 783 00:52:06.119 --> 00:52:11.199 day on this one. It is true that a respondent 784 00:52:11.360 --> 00:52:17.000 in a board proceeding cannot do what a defend in 785 00:52:17.039 --> 00:52:19.159 a federal civil case can do, which is using some 786 00:52:19.320 --> 00:52:22.639 re judgment motion under Rule fifty six to smoke out 787 00:52:22.679 --> 00:52:26.920 any evidence the plane was planning on concealing patrial. That 788 00:52:27.079 --> 00:52:30.639 is absolutely true. The difference is that in board proceedings 789 00:52:30.639 --> 00:52:36.360 there isn't any other way to get the evidence either, right, Yeah, Yeah. 790 00:52:36.480 --> 00:52:40.000 I think the question is an interesting one because. 791 00:52:41.440 --> 00:52:44.679 I think it implies that in order to have an 792 00:52:44.719 --> 00:52:48.840 active summary judgment practice before the board, there should also 793 00:52:48.920 --> 00:52:51.880 be discovery so that one party or the other is 794 00:52:51.920 --> 00:52:57.559 not prejudiced by failing to see what's under the tempt 795 00:52:58.079 --> 00:53:01.920 on the other parties through discovery procedures. And you know 796 00:53:02.039 --> 00:53:06.679 my you know, my reaction to that is, as long 797 00:53:06.719 --> 00:53:11.599 as the NLRB has summary judgment procedures than including rules 798 00:53:11.639 --> 00:53:17.199 that use the same standard about you know, genuine dispute 799 00:53:17.199 --> 00:53:20.840 as to any material fact. I think that's separate from 800 00:53:21.000 --> 00:53:24.320 whether or not there are discovery procedures that are available. 801 00:53:25.000 --> 00:53:29.239 And of course the at least if you're approaching hearing, 802 00:53:29.519 --> 00:53:33.679 the parties have the ability to subpeda documents, and that 803 00:53:33.920 --> 00:53:37.039 in certain respects kind of as a substitute for discovery. 804 00:53:37.079 --> 00:53:39.960 But I think summary judgment, if it's in the rules, 805 00:53:40.000 --> 00:53:42.440 the board has to adjudicate it the same way, even 806 00:53:42.480 --> 00:53:48.480 though there's a lot more vigorous discovery that's permitted under 807 00:53:48.519 --> 00:53:50.800 the rules and by the way, I expect some parties 808 00:53:50.840 --> 00:53:52.719 at some point to raise the question of. 809 00:53:52.679 --> 00:53:55.639 Whether or not the Board should be required. 810 00:53:55.239 --> 00:53:56.639 To adopt more. 811 00:53:58.079 --> 00:54:02.199 Substantial discovery practices consistent with what the civil the rules 812 00:54:02.199 --> 00:54:05.599 of civil procedure provide, But so far that has it half. 813 00:54:06.000 --> 00:54:08.719 I expected a case to come up already saying the 814 00:54:08.760 --> 00:54:12.239 boards should should require initial disclosures Real twenty six A 815 00:54:12.320 --> 00:54:17.280 initial disclosures, they're practicable. Why wouldn't you doesn't mean you'd 816 00:54:17.280 --> 00:54:19.599 have to allow the rest of discovery. Why wouldn't you 817 00:54:19.679 --> 00:54:22.440 do essentially that if you plan to use an exhibit 818 00:54:22.840 --> 00:54:25.679 at trial, you should produce it initially Under Rule twenty 819 00:54:25.719 --> 00:54:28.800 six A, ask the Administrative law judge to rule on 820 00:54:28.920 --> 00:54:32.280 that and peeled administrative law judge if he or she 821 00:54:32.760 --> 00:54:34.519 denies the emotion. But I haven't seen. 822 00:54:34.320 --> 00:54:37.840 That happen, if you, I am not, But I expect 823 00:54:37.920 --> 00:54:40.800 at some point that those types of issues are going 824 00:54:40.840 --> 00:54:42.920 to be brought up by parties. The Board's going to 825 00:54:42.960 --> 00:54:45.440 be put in the position having to address those. 826 00:54:46.920 --> 00:54:49.679 We are bumping up against one hour of your time 827 00:54:49.760 --> 00:54:51.760 that we have consumed, and I hope you think we 828 00:54:51.880 --> 00:54:55.400 haven't wasted it. For those of you who practice labor law, 829 00:54:56.639 --> 00:54:58.559 this just should have been fun. For those of you 830 00:54:58.599 --> 00:55:06.079 who don't, I'm sure it's head spinning. Any other questions. 831 00:55:08.679 --> 00:55:11.280 All right, then, ladies and gentlemen, we are concluded, and 832 00:55:11.280 --> 00:55:13.639 we thank you so much for attending and listening to 833 00:55:13.719 --> 00:55:15.719 us talk about our favorite subjects. 834 00:55:16.280 --> 00:55:19.239 And thank you again, Pepper, thank you, and everyone have 835 00:55:19.320 --> 00:55:20.679 a good rest of the day and the rest of 836 00:55:20.719 --> 00:55:21.039 the week. 837 00:55:23.119 --> 00:55:25.719 Thank you for listening to this episode of fedsoc Forums, 838 00:55:25.840 --> 00:55:28.960 a podcast of the Federal Societies Practice Groups. For more 839 00:55:29.000 --> 00:55:32.239 information about the Federal Society, the practice groups, and to 840 00:55:32.280 --> 00:55:35.679 become a Federal Society member, please visit our website at FEDSOC, 841 00:55:35.800 --> 00:55:36.480 dot m org,