there's any confusion about the amount of time you're going to have to argue so sorry about that i hope that didn't cause any problem but we got to hear from c i think it's important that we look at the release that went into this fire this prior represented they have thirty some employees voting yes and then with twenty seven employees voting yes but if we look at the release that those employees signed that we lease does not include any statement or any question with regard to whether the employee got campaign literature that says if for example in one of the cases the union was voted in in the company across the street and they didn't get a rake increase in fact the way just went down ok that's maybe in this representation but if that's a misrepresentation the union comes back and says no that didn't really happen and it's up to the employees to decide from the within cells from these two contrasting positions what the misrepresentation now in this case there is no way that the employer could counter that because we can't go to the employees and say is it true that you're voting for the release form does not in any way indicate that the employee has represented that they're going to view coding yest the release form doesn't say that the materials are going to be used in campaign with a chair in support of the union it just says you got right is very important to note employee has an absolute right to refrain from declaring how they're going to vote we're not now there's no indication here that any of the employees  said that they were going to that they were going to vote yes with him and dish we have to look at the issues with regard to those three states now one of the people who witnessed the release is testified frankly that she made up the quotes on sun with those really says not only did she sign releases this witness that she didn't witness but she testified it would be using the pictures with the quote that they used is that really artful deception i mean you didn't know they were voting you didn't know that they were it seems to me that this section is a pretty strong word to try to get over you know in putting this brochure putting this brochure together well respected here and i do think that it's a deception because it indicates to the other employees that these of their colleagues have already committed to the ng for the union when in fact they did not and it was a false statement that somerset had no way to legally question were position first it's advertised they're going to vote yes for the union something that they have a right not to do that a right not to declare how they're going to vote so what did they do then in winter to correct the misrepresentation then they have to go out into clay or that's wrong on probing no answer they're being forced into a position where either they go on in this representation with the fabricated statement or else they really christer section seven rights and stand up in front of their how workers and say now i'm voting no on voting against the union and no employee should be put provide that care to the patients it's taking it very much further and same somerset you no longer view and your physicians and your experts can no longer decide nature of their conduct but here we're talking about something much broader and much more important and i think much smaller field because it's not just a particular employee it's not just a decision of which and then came along and they are given the alternative even if it's not extraordinary circumstances mr griffin ratified solomon's actions you know apparently a great number of other cases there's nothing here everything that we can tell from the record indicates that this was a pro forma ratification it was just done out when ever anyone  is your for us on a petition for review how would you best be able to rebut that presumption of irregularity well that well that's that's that's the problem that you find yourself  forming nature of the ratification the fact that the ratification was identical in a large number of cases the origin or is out there's a record show how large that number is we don't know that we have notice or whatever the number is yes the union or the n l r b as that oh let me ask let me ask you this way what is it about somerset that was significantly different from the other twenty seven y poor history of performance on the inspections that are done by the new jersey department of health and two thousand and nine it had two g tags mentioning actual harm to patients and and you know patients couldn't hear him scream with pain that's not something that we want we had a bad inspection in two thousand and nine two thousand and ten there were no g tags that there were twenty one other violations found somerset made a concerted effort through a variety of waste to training new programs through progressive discipline to remove employees and finally to move to the r and model to improve patient we were at the same time as making separates to include here that you were changing the focus of the business moving from a business that took in both wild long term care and said that you care patients and we were going to be first initial point to make any somerset's challenge to the ratification in this case was wait before the court in the port explicitly found it at weight gets challenged by not bringing it up and exceptions to the court's decision indeed it didn't bring a challenge several points in response to that first is that the board's rules and regulations don't allow motion since miss there is no provision for them before the court after exceptions have been filed and indeed the provision for exceptions states that everything must be included in those situation also in advance disposal this court found that the fact that a claim that was raised late in footnote for this court mentioned that in  claim that it should there are about the regional directors authority to issue the complaint had been raised on time with the board and recorded no issue with applying the ten you part of the court found extraordinary circumstances there but still needed should somebody at least look at that question i don't know that we're in a position we can't read a record shouldn't shouldn't at least the word look at that question as to whether or not it was proper they were normally in a case like this but general counsel does nothing in this kind of case to indicate that it's a proper use of discretion but general counsel delegates that authority to its regional director so the fact that a properly appointed regional director signed the complaint that when the government official says i've done this for this reason if there's that is true unless somebody can bring a reason to look at that or show some evidence that it's false here there's no evidence that he didn't look at the ratification and do exactly what he said  he did which was consult with his staff and determine that it's an appropriate issue of discretion also but discretion here that we're talking about is very very broad under section three d the general counsel has discretion issue complaints and it's not review anybody including the port the board can dismiss the complaint that company can't say this complaint should never have issued and so given that it seems it would be odd for a court or for the board to probe into the general counsel's reasons hypothetical where it ended before he goes and says i'm voting for the union at one point and other people repeat that and then later on all the pathetic rules of losing it there's a picture of the person i don't know how much more explicit the hypothetical part is  employee then doesn't vote for the union feel compelled not to but nobody's going to know that they did not vote that any individual employee didn't for the union so being compelled argument doesn't really make a lot of sense in that regard  citing a release form that state that the union distributes that state that the employees are going to use their that the union will use their names in its propaganda and so the idea that these employees would not support who don't support the union would be citing that he's a paper just does not make much sense it's reasonable for the union to look at that and say ok these employees actually do support the union for many of these employees even appeared in a video  under which the company has a affirmative defense that they would have taken the action at issue regardless of any union activity it's the affirmative defense under but by the company can't meet that affirmative defense because the reason they put forward is false they can't then put forward that exact same reason and as a challenge to the remedy in here and that makes sense because it didn't employer can't show that it would have taken an action because  care anyway without any union there and they should not be able to say afterward oh we can reinstate these employees because of patient care when these employees would have been there without a union present or without their union activity so given that here that's exactly the situation we're dealing with somerset failed to show for the board that it took this action because of the employees union that sorry phil show they took this action because of business reasons unrelated to the employees union activity and there's no contention here that those business reasons are any different from their challenges the remedy that they're bringing it's the same patient care challenges that they brought to the board for the idea that  affirmative defense there i think he's got five minutes rate is only ok thanks good afternoon and may please the court my name is patrick raul shown behalf of the interviewer union but as the court noted in some of its earlier questions first with type of statement were going to vote yes when that was not a question posed on a on a release form or titian was not inappropriate or back as another case of this type of language but as a practical matter as the court time limitation on it but was no or one usage on it and these employees knew that if the side that released and gave the union that authorization that they were going to be identified as union supporters and in fact when you review the answers to questions that we filled out again the hearing officer found that they substantially were the same or almost identical with what ended up in the campaign literature we were statements that clearly demonstrated support for the union so the notion that these were employees who somehow had been hoodwinked that by signing a release when they were actually opposed to the union would somehow be shaped into the supporting you need real people who were attesting to their support from the union and in the door in case add something else but your honor in terms of what this would look like if there were a new election i think it's important to realize that if there were a new election after it was already been a three employee choice now almost seven years ago it would undermine the entire two instances of him released suffering actual harm because of the actions by employees one of whom is usually an jock that's not contained that's not something that any health care provider  thing about that is that the expert that was brought in by the n l r b agreed with somerset that the r and model is far superior and that the trend in health care is to move more towards the use of our ns and not use union that they were voting yes and that they never authorized the union to publish that statement you know here we're not talking about one employee as in the joran case we're talking about thirty three employees under the