mitchell a g c for the parent company i'd like to reserve five minutes for rebuttal and as i have advised ms sheehan mr spillers when i'm back at my table of i'm standing up it's because it helps questions that's what i'm here for is to respond to those questions i do have a few primary issues that i would like to discuss the first has to do with the board's finding of an unfair labor practice based on the subpoenas that were served on the employees and union to obtain evidence relevant to c m c v m c s challenge to the union's use of charge nurses to organize employees that determination by this court involved straight legal issues the facts are undisputed the second primary issue goes to the board's finding that c illegally terminated mr ronald maxine zero due to its union activities that determination by this court will involve both legal issues and an analysis of whether the board's findings are supported by to disclose or to obtain information with respect to employees organizing activities independent of the involvement of the charging nurses in that activity and in that regard i think it's important to for the for the court to appreciate that there are four different requests issue with respect to the board findings and with respect to every one of those requests the administrative law judge permitted the documents to be or i should say require at least some documents to be it may be it as construed by the administrative law judge it was overbroad but in that regard i think that that is exactly why there is the statement in the  documents should be produced to the administrative law judge for an in camera inspection the employer in its counsel which was me was well aware of the board's issues relating to confidentiality and we tried very very hard to respect the board's rules and laws in that area by including in the  direction to employees that they need not produce those records to the employer the employer was only going to get those records once the yale jay looked at them and determine whether or not  why have such a broad subpoena issued well those those reasons were explained in the back and forth with the administrative law judge at the representation here where those  were served in conjunction with and where the petition to revoke was initially file so if you take a look at the one of the requests went to authorization card side signed by supervisors the charge nurses those were order produced with respect to the other items the employer explained to the administrative law judge during that hearing why those why those  items were included in what it hoped to obtain and i think the allergy here is in a situation where you know the employer was trying to find evidence that the charge nurses were involved so if the employer requests documents that for example have the charging nurses initials on them then the response may be a we don't have those then you're expecting the party to do that to to look at the documents themselves and then you have to rely on that party to have fully and fairly responded to that subpoena it's really no different than a situation where if you're in a wage an hour litigation and plaintiff requests time records they're entitled to all the time records they're not required to say time records that show off the clock work and that's very similar to the situation we have here and the the point beyond that then we get into the the petitioning clause argument and under this court's authority and sosa versus direct t v this court is has clearly instructed that if a federal statute can be construed to avoid a constitutional issue it should be and it is only if that statute clearly prohibits the conduct at issue that the court would then take a look at whether the petition trumps the federal law that's our argument here is that section seven does not specifically address subpoena the subpoena direct not prohibiting that type of those types of well in that regard i think the first item that we would like to address has to do with mr mack senos status as a supervisor at the time he was terminated that was an argument that was given very short shrift by the administrative law judge and his decision it was not treated at all by the board in its decision and we contend that any f reading of the record shows that substantial evidence does not support the administrative law judge is finding that mr maggs ciena was not a section two eleven supervisor at the time he was terminated the a l j looks at different things some of which are not supported by the record that are discussed in our opening brief and he completely ignores the evidence relating to the stipulation by the internet into by the union and approved by the board that the charge nurses and relieve charge nurses were section to eleven supervisors the a l j completely ignored the undisputed evidence that one of the individuals named in those step stipulations was replaced by mr maxine o when she assumed the director position on march fifteenth of that year and thereafter he worked he was the relief charge nurse for the emergency department just as she was cheryl gillett before that period of time that's why ms gillett is identified in the stipulation and mr maxine oh was not because mr mack c no assumed that role after the stipulation was injured into and approved by the board relief charge nurses but in that regard what what we submit and respectfully is that shows the bias by the administrative law judge in that he discredits her testimony and deferential review that's a pretty tough argument to make we were relying on julie it's testimony with respect to the duties of a relief charge nurse those duties are also evidenced by the stipulation that was entered into by the union and approved by the board that's evidence right there are so what the administrative law judge did as he didn't even mention those you'll ations in his decision he just in a very conclusory fashion said i'm not going to credit anything gelett said and our point there is if when you look at the substantial evidence test which requires that the court look at that evidence which is contrary to the board's findings as well as the the evidence that supports it we contend that substantial  not support the administrative law judge is finding with respect to mr maxie no supervisory status yourself do you want to address that finding because i think that's that's one of the most compelling findings that really stands out to say he could do it and then turn around and penalize him for that that was their finding but it is not supported by the evidence and we discussed this in length that are in our brief and in fact we even lay out all of the evidence that is undisputed that shows that it was not pretextual those include the documents but most fundamentally what we have in the record is a statement from shelley it made on may five or the the finding by medical record and our contention is and that is why his certainly his viewing of the medical record on that day was excused by c v m c however that's not why he was terminated he just reviewed the record and printed it which is what the judge found he was authorized to do on may fifth on may fifth we wouldn't be here mr maxine o would not have been terminated he thereafter on several different occasions again reviewed that the medical record printed out the medical record took the medical record off of the truth of the premises of the hospital then submitted that medical record to human resources even though human resources was not authorized to receive it there is no evidence whatsoever in the record that would support a finding that he was authorized to use the medical record in that manner the the third point i wanted to address was has to do with the extraordinary remedies that were made a part of the board's order in this case we have cited for the court in our brief the law of this circuit which establishes that if the board is going to to impose extraordinary remedies it's required to fully explicate why it is doing so and why its normal remedies do not will not suffice in the board totally failed to do that in this case the boards the board itself similarly the ael j imposed a writ and order that not only requires the notice to employees to be read to employees which is an extraordinary remedy but that the notice be read the cases we are relying on with respect to the board requiring to being required to explain why an extraordinary remedy is ordered is the garden garden or mechanical case we  in our brief and i believe that there are some others this court at least that i could could find his has never squarely addressed the reading issue with respect to the punitive nature of the reading issue there was some discussion in both of our briefs about that issue and in that regard i do want to alert the court to a recent decision that was just issued by where we are not arguing that a reading remedy is never appropriate what we are contending is that if there is going to be a reading requirement imposed the board has to fully explain why its normal remedies won't work that did not happen in this case and as we discussed in our brief the in all our best decisions in this area before this one typically go into great length with respect to why a reading remedy is necessary and it's typically in a situation where there is an element of recidivism we don't have that in this case this is the the there  is no evidence that c v mc has ever been determined to have committed an unfair labor practice prior to the unfair labor practices found in this case you want to save the remaining time for  morning your honour's may please the court my name's ryan spillers i resent the union in this case the united nurses associations of california union and health care professionals knew she asked me and i know you're spending time with them  employees communications with the media in all other respects we agree with the board's decision and respectfully urge the court to enforce it i'd like to start with what the board did find in this case which is that the employer's chief medical officer made unlawful oral instructions to nurses that they could not contact the media you don't have a lot of time and i think we're familiar with what the board did i guess my question is a procedural one is its decision and says i'm due process grounds i can't consider this written policy and i understand the case all you point as to which says no confidentiality provision and in an employee handbook that was alleged to be unlawful and then there was a particular confidentiality provision that had to do with with telling other coworkers about your wage rate and the particular that narrow provision was not found was not alleged to be unlawful but the the board said well that provision gives meaning to the broader confidentiality provision that was explicitly challenge and we're going to rescind it in order to effectuate an appropriate and i stocks in my notes reflect that you did cite longs drugs but high tech has that kind of language you guys like understand was from high tech correct with honor if i may just address since i have limited time i would like to respond briefly to the employer's arguments about the supervisory standard status of mr maxine oh  i would point out that the hospital relies heavily on this stipulation about the supervisory status of charge nurses  capacity as a charge nurse but she was not explicitly named there were individuals that were named in that stipulation as supervisors he was not named that stipulation but yet he had been serving in that role on a relief involvement as a relieved charge nurse which more which was more numerous more significant prior to the stipulation was not enough to qualify him as a supervisor and certainly his diminished capacity and that in that  role it cannot qualify him as a supervisor i would also point out the law is clear in this matter that there has to be clear evidence about the actual duties that the employee performed the employer's witness was both discredited as not credible but also into all of that i just want take one quick step back and make sure that everybody is aware of the uncontested violations in the case we have upwards of a dozen uncontested violations and i think that is i think it's important to remember that in the context of the entire case that as we're talking about this supervise the discharge of magazine o and the other violations that this is against the backdrop of an employer that has admitted and can sorry conceded twelve different violations so i just wanted to start with that we can quickly  context well aware that i don't i think it bears repeating quite honestly because i think as you'll see i think when we get back to the remedial issue how that sort of ties in to what the board did on its remedios i want to begin with that but your absolute right i'm certain the court's well aware of the  conduct in the case so talking quickly just about mag seen no as a two eleven supervisor again as counsel for the union spoke to that stipulation was signed on march five and expressly listed individuals so that is not relevant in terms magazine is not on that stipulation and on top of that it's the board's responsibility when somebody challenges a supervisory status of an employee or challenge the employee status it's for the board to decide whether that individual is a supervisor so the fact that other individuals who shared a title that makes ino assumed an isolated occasions that's not his job he was not a relief charge nurse in fact if you look at his discharge papers the very last piece of paper on may twentieth which is the employer's excerpts of the record at seven hundred four his position is registered nurse but going back to it's the board's responsibility to determine who is a supervisor and who not he is not on that stipulation and it's not for the party it's not for the parties to determine who's a supervisor they stipulated to if they had their reasons for the election to go forward fact remains maxine zero is not on that as of march fifteenth yes to a lot served in a different capacity but the administrative law judge made very clear that meg see no among others stepped into the breach of that position somebody had to fill that position when she was elevated to another i mean that's standard company that the hospital work must continue she got into another position and another charge nurse a relief charge nurse left the hospital so you had two vacancies that were then being filled by a composite of employees mags you know being one of them we would take issue with this characterization  repeated in the brief that he stepped into july and shoes that he replaced what he did was as employed as his employer instructed based on seniority experience and willingness to serve in that capacity they ensured that the hospital function continued and he served in that capacity in limited stints as needed by the hospital and i would also add that there was no objection to anything that he did any of his conduct from march fifteenth going forward and this there was an there was a hearing on object there was an objection hearing that we've heard from a little bit where there was a main allegation and that is the election should be set aside on the basis of pro union supervisory conduct there were looking upwards of eight or nine supervisors that were litigated in that told him hey march fifteenth your supervisor stopped doing things on behalf of the union this was one of the most vocal union supporters on site this employer knew how to tell it supervisors not to engage in pro union supervisory conduct because they did it and they litigated at the objection that there is absolutely no evidence that makes you know served as a supervisor that they viewed him as a supervisor or that he in fact engaged in supervisor activities as opposed to as i said stepping into the breach when the hospital needed it because of staffing changes moving to the discharge again i would hear i think that as your honor pointed out the pretext there is extraordinary this is one of those cases where when we talk about was the employer able to show that it would have engaged in the same act of the same decision absent the protected activity and here you have two entirely some similarly situated employees you have d santiago and you have magazine both of them got brought under they got sort of a rope up in the whole h r process because of a random audit where they were identified as nurses who engaged in patient a question well piece of patient treatment they were both supervised by july she told both of them view the record or access the record go ahead and print it and then on top of that there is credited testimony that to lot more than what she told t told magazine oh when she saw him working at the nurse's station doing his doing his reviewing the record she noticed that he was doing that and said don't do that on work time do that at home the only difference between these two employees is that he did it at home her his supervisors instruction and that obviously necessitated taking the document home to work on his grievance challenge at home and then submitting that  the employer makes a big tries to claim that this these factual distinctions of the submission of the medical record information in pursuing his grievance challenge that against a lot encouraged him to do she encouraged both employees to challenge the banks you know had no prior discipline for the five years of his employment at the hospital before the election so then you have what they call claim is this the critical distinction that he took at home in his backpack and that he stapled a copy to h r but i would point the and they said this makes all the difference in the world but what they've what they cannot answer for is in the excerpts of the record at eleven twenty five is the internal report produced by the hospital at the end there invent that report four pages long is reporting on both de santiago and magazine all of magazine his conduct is in there including taking it home and printing she was h r and the recommendation for both employees with the full knowledge of everything that he did and the full knowledge of everything that she did the recommendation there was to  that document shows that this hospital had no intention of firing magazine no because of those what they perceived as hipaa violations so in that where the brief says that this was a dischargeable offense and he had to be fired because of this their own documents show that they did not have an intention to do that and then speak getting back to so you have the same intended discipline for the two similarly situated employees and then they then you have what the actual forms were that they both received and they both get written up for the same thing and this is at seventy two and seventy four in the employer excerpts of the record and you have at the bottom of the two of those has the employee been counseled to receive counseling for the same or similar action for both employees they list the initiating event of the patient treatment so the made for whether the patients vitals needed to be taken that's listed on both forms the only difference is on magazine no there's also not complying with the attendance policy so query how that's related offense to the hipaa violation query how the patient treatment is a related hipaa violation notwithstanding and then on top of that jalopy tells de santiago this is santiago's concerned she says i'm going to lose my job over this i'm on a final written warning and to lot says no you're not going to be discharged for this because it's not meaning to have a violation it's not  same or similar offense so to the extent that they're saying for magazine no it was same or similar and i know the employer also points to the fact of this attendance thing which i think is an even i mean that's even more attenuated from hipaa violation two responses to that one is part of the uncontested violations that change in the attendance policy is subject to rescission now those changes in the subsequent discipline to any employees a subject to rescission under the board's order it's as if now that attendance policy violation does not exist and on top of that the second answer to that is while it's not on de santiago sheet de santiago was also issued on the same day eight in attendance policy violation her individual performance improvement plan should have been as written identical to magazine they both should have had the patient treatment and they both should have had the attendance issue and so here you have on hers and i don't i don't i don't mean to imply that there are some it could have just been an oversight  i'm saying is had they been properly recorded you would have had two identical sheets you would have had an identical recommendation and you have maxine being discharged the only difference between these employees is that he was the union movie star as the employer saw the employer did not want this union there and that i think is it incredible showing a pretext in this case to show even if you can show the hipaa violations and i think we'd argue that the evidence is just really unclear on that it's unclear to what extent he was authorized to do everything that he did to what extent does the employer have an internal grievance procedure that privilege this or that the regulations allows even assuming they can prove that he violated hipaa i think the strong showing of you could not hospital you could not show that you would have fired him absent that violation because absent that protectively sorry because you didn't you didn't recommend it and you didn't do it to the exactly same situated employee and go can i employer i mean there were multiple violation of us but the could still address events closely connected it seems to have that close connection here it was fully litigated the employer isn't even challenging that part of it so why should we remain and i think that had to address it now i think a very reading of the order now as it relates to what the employer has to do affirmatively going forward on the media policy violation ness of seumas any remedy that the board would order for the written policy violation if you look at what the board ordered in terms of the i had it marked in terms of the  terms of the media policy i don't know what the written policy is still in place right right but what that will remain it remains in place right but a fair reading of the board's order i think calls into question whether or not that in forstmann of the written policy because it will conflict now the board's order if i remember and i can't find it oh the very it gives rise to a question as to whether there would be a problem in forcing it it's still on the books i take it that with the union wants to do is to to have that had this broad prohibition or it has forbidden the employer from saying there's a broad prohibition from speaking to the media so to the extent that so i don't know if you look at what the written policy is i don't know that on its face it read now in the context of the board's order that on its face it can't be reasonably and lawfully applied so the you have the boards are saying here's what you can't do and then you have a written they are listening to leave it alone because it's covered in part by the by the findings with regard to the oral that anyway i think so to the extent of the extent that it's in a bit to the extent that the board has an obligation to find a violation that's not pled in the complaint and that the general counsel didn't seek at the close of hearing this  union's request the general counsel prosecutive case did not ask for this finding to the extent that if we get past that the administrative law judge had to do more than just say i don't think that this was fully and fairly litigated then i think mantra we say ok well is there a way then to remained in that can you look at the written policy that as your honor pointed out is still on the books but could it remain on the books in the context of this order and still be lawful and i think if you read the board's order and the written policy together i think the employer i think there's i think a reasonable reading of that is the policy can still stand with the caveat that it can't be this broad prohibition so i would say rather than remain and we would urge that stand with regard to the portion that employees can speak on behalf of employees can it i'm sorry there's a portion of the written policy prohibiting employees from contacting the media behalf of other employees so i thought that as written what is your argument that it can still stand with the shins of it are now this aerated by this finding that the written policy to the extent that it conflicts with this board order or that no it would not stand but urge the court to look at that the d c circuit just issued that in may i was responsible for that case and that case does not say that it is punitive the d c circuit stands by its law which the circuit has also held in another h t h case pacific beach hotel litigated in both circuits that a public notice reading requirement is not punitive so there is no holding and that there is no suggestion in that case that it is a punitive remedy particularly if there was a lot of discussion whether the insistence that another person employer's exercise ten twenty four to forty seven you'll see a documents that were responsive to the subpoena items that underlie the board's order here so you know in our point is that to the extent the subpoenas were over the law they that they cannot be a you well he just by virtue of the fact that they were overbroad particularly given the in camera direction subpoenas with respect to the pretext issue i can't articulate anything in front of you i hope as well as i did in my brief and i would just ask you to take a look again at forty eight to fifty seven of our opening brief where the pretext issue was discussed at length with the evidentiary sites with respect to the section two eleven issue on mr maxine oh it is true that he worked occasional shifts as as a relief charge prior to march fifteen but the point is and the evidence is in this record is that he did take over for joliet take over that relief charge role after she was promoted on march fifteenth i would also note that the testimony with respect to what he did in february as a relief charge in some ganja questioning of another witness on a different issue all right thank you very much counsel both sides of the argument