please the court i respect your request five minutes for every bottle thank you this case is about the company's decision to lawfully terminate five employees for time theft that it's fair lawn new jersey if you so board section eighty three dollars findings are not based on substantial evidence or reasonable basis in law in this case the company initiated an overtime study generated a report demonstrating several employees including three union officers had engaged in time and terminated those employees those three union officers were thus not singled out because of their union activities in this case the board failed to follow its own right line mixed motive burden shifting with respect to the knowledge on the it is noteworthy that the person who initiated the overtime study had no idea about the discriminate he's union activities and there is no evidence that anybody directed him to focus on these three particular discriminative the causal connection this court has held in the ordination case in two thousand and fifteen that there must be a causal connection between union animus and an adverse employment action and in this case the board did not participate i'm sorry the board did not follow that particular analysis instead focused exclusively on a relationship between the union activities and the adverse employment action and that's in this happened early in two thousand and sixteen months before any adverse employment action was taken in this case also this court has no event an abstract dislike for unions is insufficient and the company submitted to the board overtime investigation ceased after the three discriminatory scrimmage t s were terminated yes judgment in the the record reflects that the the individual who was in charge of the the overtimes that he had other personal commitments to focus upon and that was the end of the study that doesn't make a whole lot of sense to me and the reason is because my mind elisa's a very very substantial corporation and for them to invest the time in their resources into this over time inquiry in failed law and fair lawn and then have an individual say well i've had something personally come up for the company to respond to i decided to make sure that the one the one manager would have responsibility for for signing over time when supervised that is so once that part of the equation was was handled there was still in overtime there still excessive overtime and as part of this study the times if it was uncovered was one of the principal reasons why there were drivers over time that there was an issue with respect to how much overtime but the company's position is not at the over that the overtime study  came to a conclusion and resulted in all final reporting and final findings and all of that i mean the company seems to acknowledge that there was a personal reason come up with mr malakar and after that this this study just and run out any further that's the part of this that makes no sense to me your honor almost like he said i have to go to a funeral and the company said well we'll cancel a multimillion dollar study with your i mean as far as the study go to me it was so completed based upon the results the there was an output so the company's position is that this study ran its intended course as it was charted at the outset and culminated as planned at the outset i don't believe that that is ultimately in the record as far as what the initial i guess purpose was more it ended up being but studies like that happen all the time where there's an initial focus on something and then it changes into something else but it doesn't mean that there was any kind of unlawful motive underlying the am not saying i'm off a motive what i'm saying is that when when a very large company invests substantially in an overtime expense study at a plant and then abandons it because of a of a personal issue that has come up with the investigator that's not the ordinary course i understand  overtime expenses at a plant it's nothing illegal about that so i guess if you run a risk that the company ultimately determined that there were instances of time theft and that was one of the drivers of the overtime i think what judge brennan is asking is it's pretty fishy that the that the study cut off and that's the latter part is question is it doesn't make a whole lot of sense so what's the company's explanation you other than that there were personal reasons and that there were other focuses other organizational focuses that's the explanation and there's no record on it other than quote personal reasons  court has noted in the sears roebuck case you know why would the company wait so long and also these three distributed cheese have been you know officers for a very long time it's not as if they had just all of a sudden become you know officers  and so if they if the company really harbored some kind of animus against them he would have logic would suggest it would have taken action against him way sooner than it did and it didn't there was obviously a break in the causation and the other piece of  were hallmarks of a fair investigation the fact that ultimately the company determined that the three just communities were not credible and determined that they ultimately have terminations appropriate is completely sound in this case there's another issue with respect to disparate treatment a board claimed or board found that or the board i guess i should say ignored the fact that there was a disparate treatment issue here respect for the two union i guess the two non union activists who who were terminated the same time for the same fractions as the three discriminatory s the administrative law judge briefly touched on and the boards ordered for doc to be able to his findings didn't even mention either of these two employees and that's somewhat of the that was somewhat shocking to the company in the sense that at least from this court's perspective in the sears roebuck case there back in two thousand and three that there was evidence that there was a comparable who just didn't wasn't mentioned by the board and that is a significant portion of this case in that the union could not enter the company could not have demonstrated animus against those individuals th ree discriminative if it simultaneously treated to not discriminate t's the same way in connection with the same adverse employment actions for the same types of misconduct the board summarily adopted the ministry of law judge's findings that the company would not have terminate the employees regardless of their union activities not aware that there was no legitimate reason for their discharges but as an end all can concede here time theft is a cardinal sin in the workplace it's one of those hall mark violations the district she's in the two other employees who were terminated did not have adequate explanations for their whereabouts and even if the company was no ultimately mistaken in its conclusions it does not mean they had any kind of unlawful motive in that regard as far as whether or not it would have terminated these employees because of their union activities mr shooter off what is the record show with respect to past instances of times after misreporting time so you know in the periods well before this dispute arose surely this wasn't the  time there was an issue with miss keeping of time how did the company did the company automatically terminate upon finding time for the afton prior periods or did it undertake more progressive forms of discipline as the union suggests it's going to there were instances where there were other cases where there were instances of time theft or false vacation records that did not end up in but in those cases it wasn't and there was not necessarily in uncovering of intentional intent to do you gauge theft of time and that's would just i guess distinguishes those cases from this and that it's hard entered at the same time in this case it would be three distributed tease the evidence show that the individuals were out of the facility for significant periods of time and unaccountable sure my question but my question is in the past that in the past there there's not there's not one lesser disciplinary offe i also know that union activism in itself with respect to these redistribute tees is not a shield against discharge in other words it should not be that merely because somebody is a union activist let's say a union officer of any sort that does not permit the employee to have to walk around without any with it with a level of invincibility that if the person engages in time theft the person can be discharged without really switching to the section eighty five dollars findings the board heard in finding that the company could not attend its own and new employee orientations there was no material change here dealing with mandatory service  ting and the union still had access to new employees the company likewise did not only awfully change its return from the short term disability policy here there was also no material change employees needed to provide twenty four hours of before the scheduled shift and there was no evidence of that there was not no finding that the employees were on short term disability they would have no schedule shift upon their return when mr should have i don't know if the that trick is material keeping good faith followed the collective bargaining agreements directive to maintain uniform shift start times which it did in this case also the company did not only awfully refused to furnish information in this case there were two requests for information  one dealing with clock in clock out records which was also the subject of a simultaneous unfair labor practice charge which that was one of the reasons why the company would help information because it was designed to for pre hearing discovery  and the other reason i think is true and the other information request i dealt with new hire information which the company ultimately agreed to provide and did provide and it was because of the understand what's so burdensome about that it would seem that somebody in five minutes could jump on the computer and tell you who they've hired since a particular date you want it was just the nature of the request as far as going back and figuring out all that but there was some delay was there not or some reluctance to turn over a new hire information from some particular date yes you are but ultimately it was turned over and in pieces my time to clear up i think some misconceptions and some things that we disagree with what the representations were there during opposing counsel's presentation so st and i'm not going to take everything exactly in order but st i'm going to start with the disparate treatment and this argument that the fact that two union activists not sorry non union activists were also caught up in this investigation and i think there is a footnote in the employer's brief about representations of the board made in its brief and i just want to clarify this so there were the three union there was the so it's a reasonable right if you're going to have the three union officials how i don't understand how the employer could defend not firing also the individual who actually swiped gutierrez's so i mean i  don't know that that's a real good comparative to look at cross kosky because i don't know how the employer would defend terminating gutierrez but not the individual who actually swiped just that so i don't think he's a good compared or then there's also be a uni er the non union official who was st on the lists for most agree just offenses according to mel garza list and that's no mousie the mouse he retires before any action is taken against him we don't know what the employer would have done i know they're saying we would have terminated him we know that he was within the invest the scope of the investigation we also know that he was the most egregious on millibars lists on what's his name who was a nonunion official who was terminated but the record reflects that he was not within the scope of mel gars focus mel gars power point getting just charge for time offenses and to be fair he's on the lists he is not the focus of mel gar study melba are very clearly testifies that he didn't he only looked at him nevsky after h r came to him and said hey man that's give supervisor believes that he is engaging in times that ft can you have a look at your records and see if those files are those our represent our representation about the study because in our view he's not part of that his involvement came at the behest of a supervisor so i just want to make that very clear to the extent the brief wasn't clear on that i wanted to to clarify that i'm not sure we didn't want to mislead the court so i so on that point on the disparate treatment i don't think the employer has a good case for comparatives if you look at the circumstances surrounding the other people who w terminated or if you believe that they would have also let go of her circumstances for his involvement in the study as well as she can i ask you a question just to get a little context around that study s o as i understand it the company commissioned mr mallock are to undertake this inquiry because of high or rising overtime expenses at the fair lawn facility is that fifty nine i think what he testifies to and i'll admit to be a little unclear because some of the phrasing doesn't i don't understand i understand all that but i think that the initial fifty nine are coming from one who had a lot of overtime hours writing those oh my poor my point is if if his responsibility or his his charge was figure out why we're three thousand five hundred and thirty dollars or thirty five percent high in overtime in this particular plant it seems very unlikely to me that the explanation would be while there's five or six people that are that are running the clock through the roof i don't think five or six people could cause an increase like that i mean they'd have it working twenty four hours a day and so my question is it seems it seems odd to me that this inquiry narrowed to five or six if what you're trying to pinpoint is the cause of a thirty or thirty five percent over time round i couldn't i couldn't  could agree with you more and i think the board does as well that's the very st part of the board's analysis where they say listen this is nobody's criticizing your study it's sure figure out why you're paying way more overtime and other facilities but at some point when you get these fifty nine means on a list and you ultimately don't even look at the time when you even narrow it to the five or six so forget you have fifty nine people that in a sixteen week period had very high overtime hours you don't even look at those fifty nine which on a so many height and labor costs at this particular facility and bellegarde doesn't answer that question he doesn't at all know and i think that's a very big point of frustration for the board in trying to figure out why you engage in the study and then so that's when you start having the board saying hey i think this is starting to look like you unlawful that you then use this study for whatever reason i think the l g says this or maybe it might be the board and its adoption says listen this study of mate probably started out completely legitimately but it devolved into a targeted enterprise looking to root out union activists think you're absolutely right this wasn't about that at the outset of the study mel garner sa or he describes the study as he's looking for the positions he's trying to understand what positions are driving the over what positions are driving me over time and he ultimately makes no conclusion on a position he makes several findings as they relate to specific individuals so i think i mean your honor said it that it's incredibly fishy and i don't think there's a way the employer can get around that and that's not even that's not even the end of it right there is the investigations that don't follow a typical pattern they don't they don't do everything they normally do they don't investigate anything afterward they don't look at each our records they don't talk they don't look at the scheduling records they don't ask the supervisors hey these three employees are saying they run union time are they are they expected to be in the facility there's none of that so certainly it starts with an incredibly fishy study and that as we point out in our brief it continues along an incredibly s path that frankly i don't think there has been offered any explanation for all of these highly irregular actions that were taken that resulted in the terminations of the three most active union over you measure  excluding the five or six that are mentioned in this case so tracking that from the fifty nine this record indicate of the remaining fifty odd activists versus nama of this the unions i don't believe it clearly does it's possible because some of the union officials testified as to the existence of other stewards how many stewards were they i don't recall that their names were articulated into the record but you have there's no document you have to piece that together you have to review the testimony of say flashy and if lashley said yes he's also a union activist and then you have to look at the list so it's possible at the fifty nine the fifty nine there's a chart mel got and that's in the record so mel got fifty nine employees what i'm saying is i don't know that so some of the shops had thirty stewards for instance i believe and i think some of their names are mentioned in the record but now there's not a comprehensive document says these as far as i know you counsel can correct me that if these are the thirty stewards and let's have a look at it and compare that to the fifty nine well i'm not aware of that document in the record well i appreciate your point on the comparator and i think i think that's an accurate reflection but i i i'm a little bit of a loss to understand why we don't have some sort of study of the others as to their whether they fit the profile of the three that were discharged i mean respectfully that would have been up to the employer to do right so rather than focus on whether we know they were union activists i think the st before you get to that question should be why didn't you even look at the period there were five people on this very narrow lens the ratio of high ratio less where it was a function of both turnstiles weights and over time there were five people on that list above washington and so rather than i think that was roughly i think you're right i think i would like to do it too but but st before i want to know their union activists i want to know why did you even look at those five people and then we can figure out where the they but as a basic threshold matter why didn't you care about the five people who had higher ratio issues according to mel garza very laborious study why don't you look at those people too and then like i said i think you're absolutely right it would be good to know are they union activists but as a threshold matter i think the employer had not legation to explain why i didn't look at other people to and there was one other point i wanted to make and this had to do with not there just for a treatment point but had to do with it so there's that two prongs of disparate treatment there is that they were unlawfully targeted in the study and then there's the back end of it just for treatment in terms of the punishment that meted out and i did want to say that the record is is doesn't contain a single i don't think i think this is an accurate statement i don't believe there is a single document showing that somebody who engaged in any sort of time fact what's been characterized as malicious or similar to those who based on that offense was terminated and then there's also there's also a testimonial evidence from the three union officials who i think bear that out as well they bear out the lack of a written documentation in their experience i think they each testified to some knowledge of certain infractions involving time and attendance issues but they all i believe uniformly testify that the punishment following that had always been verbal counseling have permission to be out of the facility and so you have the three of you have law she who has two union days where he says i'm allowed to go in and out of syllabi my supervisor so i'm with that and he has two days where he has an exit i believe but not a two of those the other one where i think they're saying block she's intense is the worst is actually not something that he was charged with as far as i understand it it's the one where there is a successive like within a millisecond turns and then exeter exit and then entrance that doesn't come into play for his terminations has terminated about two and this is in the administrative law judge as you can see it is dischargeable two days where he was on union activity and two days where there are long periods of time where he's got an exit but no re entry into the building and his testimony was i was working i don't know why the turnstiles swipe doesn't show that and he's and then there's some question and the employer i think in order to see that there was actually time for i think the employer would have to show at the very least it spoke to his supervisor to confirm yes a lot i didn't see wash day if the supervisor can't confirm that there are production reports that are produced as far as that show what individual employees have done during their time when they're on the production line there is also so there are multiple ways that employer i think could show yon just these electronic swipes and coming in and out that yes the law she was days that he's on union time he is allowed to be out of the facility that his supervisor in fact had told the security guard who mans the turnstiles that he is allowed to swipe in and out sometimes without or he's allowed to the come and go without the security guard worrying about it because he's doing union work he testifies that when he does union work he often it goes out to the picnic tables outside and works on his production or works on his overtime i think it's a pretty complicated process actually to put together all of these shifts and balance out the overtime so he says he takes  paperwork out to the picnic tables and then you have gutierrez who only i believe as far as i understand what he was charged with he has a single hour of time that the employer says is unaccounted for that he left the building one hour before his shift ended and that somebody else wiped him out so i think under those circumstances with his testimony being i just asked this guy to retrieve my wallet and my and on top of that my supervisor says that the one hour or so hours is a little bit different he doesn't dedicate full days he does then the last hour of his shift he's allowed to cover overtime work so ensure and that is a very long answer to what we can see that there was time that i would say that no the board does not at all that the evidence the record does not  and i just have one quick thing i'm going to save the four minutes turn it over to union council i just wanted to clarify the information or last the check in check out the violation there on the information request this is a made thirteen request is that it was an unreasonable delay unreasonable delay the employer had an obligation to say this was such a voluminous request we can't possibly do it in a reasonable period of time they didn't do that they didn't provide the full request information until january and that's so that's not a refusal to furnish that's a refusal to timely furnished and the nd one the new hire is a refusal to furnish in its entirety i know the employer has said that it's position that they supply that information the board found otherwise and they don't take issue with that in their brief the record is that over time is determined by the number of bodies you need to run the line when management determines they want to run the line it's not like a paralegal works late and when the plant runs on the weekend all those hours or overtime hours and that's just a management decision to run certain lines so there's no connection between i'm of that was essentially a diversion from his overtime study so whenever he began it with the relevant it was a diversion and then he never got back to looking at it over the overtime and i'm referring to describes some of the prefectural nature of this report that there's also a very clear evidence in the record that the union officials were singled out this list of fifty nine employees which really if you look at the scene and had multiple confrontations with management and were seen as strong union leaders in the plant and so the fact that it's the three of them and not the other union steward is examples in the record of other employees who receive that discipline and the energy examine that evidence and found that it was mostly counseling and written warnings and some th was your progress of this plan at the plant there's nothing to suggest that there's anything differently in the cases these cases even if you were to accept the allegations are true and those other cases that there are people who were is in that same  uncovered is not suggesting that there was any kind of unlawful reason that they were being focused upon this case and once the person was at what's miller was able to uncover them that's with this this point that well there were many other employees on the original list of fifty nine dollars when you look at their pattern of time keeping that their pattern resembled that of at least mr where it was available and only those who were found to be outside of the building were the ones who were for example you time with a focused upon and that's how this group of people were discovered so you're not you're not so much challenging mr shifrin point that there's others just on the basis of the data alone that look like they have similar time keeping your regularities what you're saying is that there's no doubt that mel garner it based upon the availability of video evidence that's correct your honor and that and that's how he was able to then determine employees because those are the people who are going outside quite a bit and there may be and he did examine the and he did examine certain video which i believe exonerate certain individuals but it wasn't for them in other words with respect to the the the company's investigation techniques here in the border you don't get to do that it's not as if there's a there's a prescribed method because otherwise it would work i would the poor new union were saying we would always they would be the ones to be determining what would be considered fair and that's a completely subjective determination this case there's another layer here the mr should drop because we're not under to an overview rather substantial evidence and judge shews opinion here obviously sets a table that you don't have to deal with so i i see your argument with regard to the nature of a potential to novo review but how does that factor in the substantial evidence center so as far as just that there's no the investigation itself there's there's substantial evidence to suggest that there was anything improper about the actual investigation i mean each of the union officers as well as the two do not discriminate i'm sorry the yes and two not just committees were offered interview it provided their their input as to what their whereabouts were and the company did not find to be credible and that's what ultimately led to their suspensions and ultimate terminations nothing unfair about the investigations if these and as mr sharon pointed out these people were the  shop stewards if they were really strong they would have been able to provide their whereabouts the same thing goes for the union business six years if they believe that they were on union business if that's what the actual explanation for their you know the lack of whereabouts that would be something that they would probably have or they would it would seem fair to presume that they would have explained to the people who are investigating him hey i was on union business that day or i was in you in business that time and here's the explanation as to why but that doesn't come out from from the you know officers and even even up until later on in the year so it can't be simply that that's the the explanation what happened here was the company determined that those individuals did not provide credible explanations and would have terminated them for time for goddess of their union