well we've lost a lot of the audience over here thank you maurice baskin representing the petitioner arden and the first issue in this labor law case is about the following simple greeting how are things going this is one of the most common greetings in the english language but the national labor relations board held for the first time ever we believe always cautious about saying that about eight years president we haven't found another case like it where the board has said that phrase how are things going is a solicitation an unlawful solicitation of grievances and neither has the board they certainly did not cite one the a l j cited the closest case to this and said best coming in which the phrase used was what's going on was not a solicitation the board did not address bestselling did not address the l t a ruling on that fact group there was a very obvious i'm certainly call your attention to the trans here because i'd like to simply look this up this morning and the one of the two employees who is most active in the unionization i don't remember which one it is but on page ninety eight she testified that the c e o she was asked now do you recall there was any discussion about the union she said he asked he just said i hear that you know some of the some of us is trying to form a union and i said i don't want to talk about that and then he just said that must mean yes we ended the conversation he says i'm  eighty i had didn't ask about you know i made a statement at the end of the conversation that i had heard rumors that there's that there's rumors about the union and then she responded that she didn't want to talk about that so he even admits that he asked her about the union he asked her about the union after the initial greeting what's important about what you just described the conflict there is that the judge credited president  the events that the statement our thing is going came first it's agreed in the board's brief and in the union's brief they try to reverse the order and say oh well he brought up the union first and only then said how are things going the best not what the judge the only solicitation part of this is the how are things going then she opens up she has a lot on her mind she had already made a complaint so that's another issue how can it be a solicitation when she's already made a public complaint and only at the end does he say the phrase about something about the union no further discussion the conversation ends so that's not part of the solicitation the solicitation the only possible kind of solicitation is that how are things going is somehow solicitation more than a greeting which is what it really is but there's a factual context here we have the chief operations officer who does not visit this facility every day showing up during the most active time of the organizing campaign and go seeking out somebody who understands has some concerns and in the same conversation in which he's asked and said i hear there's some organizing in that context that half years are going there but i'm a tell me why you think that exact sequence within this conversation is dispositive well let's take a certain point management and union organizing campaign is allowed to talk to its employees as long as they don't interfere with their rights as long as they don't solicit and promise to remedy a grievance so it is under entirely understandable effect that's what management is supposed to do  unhappy supposed to talk to them just don't do the prohibited thing so he went to talk to someone who had publicly complained already and tried to engage her about the union discussion there's nothing at all wrong with that there's no allegation that there's anything wrong with it and there's a lot of issues in this case in which the the general counsel crowd a complaint that said one thing on the board try to turn around and say well that wasn't played properly but we're going to find you guilty of something else on this one the sole allegation is that the president of the company implied we read promised remedy by soliciting a grievance so there's no solicitation he hasn't done anything wrong and that's why the order is so important the only thing that is arguably a solicitation it's only thing that's even a question is how are things going and so it's like saying someone says how are you when i say how are you i'm not asking for your medical history in common english parlance how are things going is not a question it's or it's a rhetorical question at most it is a greeting it's a way to start the conversation which is why it is important and so what the sequences if it was in reverse order then said he had said there's something going on here is something going on about the indian and how are things going are relating to that one could make some sort of argument against our interests but that's not what's been credit it does seem like  it does seem like it puts the employer in a little bit of a restrained position because you know the management should be offering to fix things but under maple grove at times like the board views thought that was important because it it seems like in this particular window of time coming in from headquarters and we've got the internet is actually something that is not although in the end it doesn't really matter any management official could have had this conversation whether present and it's not something that the board relied on as the basis the board relied on and you are bound and you should make your ruling based on what the board considered and decided not on what the general counsel is arguing and not on the order that they would wish it happened in but what the board said is he had to be he gave this interview started with how are things going and then she answered raising something she had already said and then at the end he said something about a union and converses i'm not talking about that conversation ended which implies that she wasn't taught we know about that beforehand it makes a pretty big difference about this order but it also makes it words matter and the board has precedent about what constitutes solicitation maple grove is a two step test as you alluded they are concerned about the promise to remedy that they fell on that too he didn't say was going to fix anything say was going to look into it which the judge in the dissent well said well that's just sort of routine like what else are they supposed to do stand still the words answer was well he says that thank you for the information well how would anyone know that that's the magic formula  because that sounds like you're exchanging a benefit of some kind by taking that information the reality is none of this happens if the board does not exceed its previous precedence and declare a commonplace reading to be a solicitation i would add that the as i think i've already said she's this woman had previously made the same open complained was not a secret was not something that could be solicited the same greeting was made to two other employees who were not in the bargaining unit which establishes past practice which is the board said has said in other contexts is supposed to be important is so for all of these reasons out just throw in one other item which is that nothing else transport has said that when there's nothing no harm done in a one situation and clearly this was a lead unit or union organizer one of them and not only was she not intimidated or coerce in any way that they filed the petition right after this decision were valid remain valid under boeing should be the job of the board and in that's that should be your job under the food store case of the supreme court to send it back to the board from those at least on those particular approved uniform a different color in which health care facility where patients are wondering if i was trying to make out often who is in charge and who is which level of health care but i thought his finding included findings that there wasn't a ban on logo garb that it was just that something said take off those unions so if you had a general policy that said you know only uniform our uniform no logos i could see that as not as basically neutral within the terms of lutheran heritage and or bowing but that would be an argument but to decide to divorce i have argu lutheran heritage with the overlay of boeing is well a step too far it's what's the board that's the board's job the board has changed the law that change has remarkable implication not on that point nama point of whether something's paisa neutral or nah yes but well i don't think it's that clear frankly how boeing has been a target in fact the board just in the past to we says re man did post of cases that were pending that llegations but i would reiterate what we said in the brief about your bellagio case and the impact that has on the several allegations in which the complaint was found by the judge to not have been proven and yet without fair notice to the employer was turned around including on the posting of the pro union fires including another scrubs situation with andrea the janitor in which a totally new theory was adopted one that had not been charged against the company and the preliminary matter i'd like to say with regard to the boeing remender shoe over the past few months the board has issued subsequent boeing decisions that made clear that have made expressly clear if it wasn't clear from the above decision itself that the remaining two prongs of lutheran heritage have remained intact in spite of boeing and i can provide citations for that but just as a quote it makes clear that boeing overruled the reasonably construe prong but not the promulgated in response prong of return heritage so there are three cases that have come down this summer that basically affirm the worst position on the limitation of the boeing ruling frees up the little heritage these facts under these circumstances opposing counsel is correct that the board found that the order was that mark smuggler first asked how things are going if the breach created confusion about that i apologize but that is what the board found but the sequence would not have mattered the board's position was that if you have a high ranking official this was the chief operating officer of the of nec cards corporate parent flying in from out of town approaching a certified nursing assistant a low level employee that one of the two main union organizers a put approaching her on the floor when he normally does not do so and has no no there's no history of past practice of having done so and asks or how things are going also asks or about the union and then thinks or and says that he will look into her complaints on those facts this was a solicitation it's not the case that an employer could not an employee how things are going and that would be necessarily on awful there are plenty of cases where an employer usually a lower level supervisor does in fact have the past practice of being more gregarious being more inquisitive about how things are going with their employees and in most cases there were no solicitations found but here in light of these unusual circumstances in light of the fact that this was the beginning of the union organization drive on those facts there was an unlawful and also the direction not to wear union scrubs it's clear that the l g a and subsequently the board affirmed that those violations were found on in the first instance regarding the visitation rule all three prongs of a lutheran contact i don't really understand why the arabs hate to plant luther heritage there right so the idea is that lutheran heritage is supposed to apply should rules that are officially neutral and i think your point is that it doesn't seem facially neutral to say you can't wear union scrubs that seems to express i think the basic idea was that it could it was litigated this way i think in order to touch upon the fact that it wasn't necessarily directed exclusively at union scrubs it might in this instance that's how it was expressed but it might very well have covered other types of very you know variations on scrubs and i think also because it was promulgated allowed the ael j to sort of put it in that framework and say well you have it you have a restriction on that the  logos and colors that were normally walk normally normally worn with regard to scrubs and also it was promulgated at this time but i understand that you probably could have litigated this on a different theory that's probably correct but it was litigated this way here but in any piggybacking on that with regard to the other violation involving union scrubs the employer mccartan makes a good big deal about the fact that this was third party coercion there's no such theory under any one of the act it's not necessary to specify which employee was coerced if you if an employer engages in a course of conduct that would tend to reasonably coerce any employee complaint entirely covered this found violation the complaint if you look at j ten it says you know i want you to harmon on or about july fifteenth instructed employees not to wear scrubs with the with the union lo violation of post in violation so blasio was a bit different because what happened there was in the last year the employer was charging for a rule violation there was no evidence of rule violation  this you know the entire aim of the general counsel's case at hearing was that this was a rule violation the employer had no notice at the hearing that they might very well behaved how liable for co comment violation by contrast here what happened was in the in the l j talks about this at great length from the very beginning the gc's theory was that ar of posting into union players the evidence was that there was permission of posting other flyers that's her and you're saying the evidence you know came in my garden had a full opportunity to cross examine noble i see a problem cross examine and also bring rebuttal witnesses which they did so in the course of that trial yes you did you correctly the hale j basically says this was in a very in our fully drafted complaint but whether they had met hard had notice was a different question because from the very beginning the general counsel is bringing evidence that is all about whether or not there was disparate treatment regarding pro union posting than nonunion postings to iran postings the bake sale the potluck yes but with regards to that impression of surveillance violation the key issue is you know whether an employee would reasonably assume from an employer statement that his or her you negativities have been placed under surveillance and here you had this change that the employees had been under the impression that the internal cameras at the facilities had been turned off for a long time they have been turned off for two years they have been turned off for months outside the facility then suddenly  this incident where we're in a hernandez tells c n n a dangerfield these cameras are back on you better watch our third recording your conversation opposing counsel's absolutely right that the cases that the board cites regarding surveillance are factually different because this is a very factually unusual case in the cases cited by article it is often the case that employers were told that the employee that the employer had known about the employees union activity here it's a very different set of facts but the fact the crucial legal principle remains the same that if employee that if an employer makes a statement that would tend to  create a reasonable assumption on the part of the employee that they're being surveyed that is a violation under the act thank you so much ok then we referring to some of the statements made by opposing counsel about the instructing employees allegation andre the janitor as it were how can an allegation of instructing employees apply to someone who the employer person does not know is there and in looking back is holcomb's testimony she doesn't say she was instructed she says she overheard the management representative instructing someone else a bit of a credibility patently insupportable argument because of fact that this other person undisputed does not speak english so how could she overhear heard struck thing him in english but regardless of that we have a situation where she herself was not instructed no one to encourage and no one during the hearing to even address that issue further or to defend the employer had no opportunity defend itself against this wild claim that the judge eventually came up with and similar with the job posting issue the person is on the bulletin boards when the testimony is coming in when one reads the record i through the trial but when you read the record you see the statements are being made that are not postings and are not anti union the employer is thinking well this is good for the case it just shows that there's no violation of cording to what was did the general counsel amend the complaint no where during the course of that the judge say well now there's a potential other allegation here it's exactly like the law geo in which this oral rule was don't discuss discipline and wound up saying well that's not prove that there was an oral rule but we're going to call it coercion of force stream coercing someone not to discuss discipline and that's something that this court has said is unfair to employers violates you process they have a complaint prove the complaint they have the ability to amend the complaint during the hearing they didn't do any of those things they blindsided the employer on at least those two allegations