congress set forth in the opening section of the national labor relations act that it is declared to be the policy of the country to encourage collective bargaining agreement recognizing that it is a proven elective marketing and other form of that is is it your view posts when or a core trial court would have the authority to grant an injunction asked separately review each of the four elements you know the when are separated these four items al while once of course made a finding on a necessary element like reparable this as a private dispute between a few employees and their employer as a while ignoring the important public interests that are at state now while the balancing of the public interest does come in a different portion of the analysis on two hundred one turn is a different actor without appreciating those irreparable harm are important ones that in this case the differ court ignored as i said the congress recognized that good faith bargaining exists when boyd to avoid the type of industrial strife and on rest that was like the industrial world eighty years ago and saw that as the avenue to avoiding the types of obstructions of calm of commerce that congress was looking to avoid now when the supreme court a few years later declare that the national relations act was in fact constitutional it acknowledge we know we are not maintaining that it is simply these larger public interest it or ignore it we think that standing alone requires reversal of the district court's decision here but there also is author of evidence that frankly the district court just got wrong and what was going on here at the properties we feel and greenbrier that that varied a bit but there were there were quite over the overlapping and occurred a number of other properties in which owned by the same group that have resulted in ten jane junctions including  aaronson just relief here but in but unfortunately the district court took a very limited view of the evidence and ignored much of it in finding that there was not a likelihood of irreparable harm that there was not the type of erosion of employees or the union that in fact is going on at this property a few examples it references handling that went on it bluefield with the indication the court gave the indication that because there was some handling that was going on this is a show of support this is an communication or interaction between the union and their that speaking at a conference shows that they were active union members who see this and still support their union however there's no reference to speaking in any conference and director so this was simply a fact that the just report got wrong there was some some discussion about attending meetings and delivering letters however there are those that there were two and two only two instances in which bargaining committee members delivered letters about a suspension of a of another nurse and this is critical fact because the the the rank and file what's going on with the drinking violence the evidence shows is there were expressions of frustration about the progress of negotiations and about an inability to bring about a it's you know successful resolution of negotiations this came out in  affidavit it goes on in the next few sentences to state that she clearly state that she would not look for other employment had the situation not been set in such flux at the hospital so there may have been certain there is mr only been other reasons why she ultimately left but she does of by you well these are i mean this is the evidence that again that some of the affidavits involve the bargaining committee members in there in the discussions of what occurred and it's the board is not there to cherry pick evidence i mean if this is what the individual saying what they're saying however we feel really rad they do show expressions of frustration they show an indication of someone who left for multiple reasons but as she said she would not have worked for these type of this situation that's going on at the property now the court in believe it was williams enterprise or beaver says williams enterprises has discussed the fact that the unlawful refusing to refusal to bargain disrupts employees morale deters their organizational activities and discourages their membership in unions now these are the very rights that congress gave to i thought though that this is all right and these are all general policies or arbitration and the national labor policy but and it ten j injunction i thought was has not been undermined that the board can and will all this a well it's got a broad array of remedies it can take care of and and what you would be doing if you ordered her what's happening in the meantime is with the ongoing erosion of support from the from the members of the union once the what that does is it tell it it projects clearly to the employees that the union doesn't have power here that the company is controlling the streams the company gets to say when it bargains in and seeks to bargain terms that are frankly never acceptable in these type of situations some of which involve seeking to you not go forward unless  indemnification agreement which is a promise of subject of bargaining which is clearly unlawful under the national in relations act well what was your best evidence of non remedial damage to the to the union here it's heard that your best of it our best evidence is i mean it's not a nurse orion's who's your best those well i mean i think that it's a tally of the evidence that both was gotten with that was wrong by the district court and ignored by the district or about agreement where there are some sort of dispute so what out up out would like for you to tell us what's your best evidence that proves in effect that there's irreparable harm here without an injunction it's support with the union they just voted for and without stemming the tide of what's going on at the property by the time that a bargaining order may issue which may be years from now the loss of support will be something that cannot be gotten back that will have continued over time that will project to the employees that the employees will believe that nothing has a comp been accomplished that for example in the case of nurse hoffman jackson that even though the company is clearly obligated to bargain post discharge over discharge and to furnish information about this charge in this case the hospital simply said no simply refused to do so and the union is powerless to do anything about it alternately down the road could they get that type of information under a bargain our new order it's possible by then the damage has been done they've seen that if their discharge the union that isn't unable to go in and talk to the hospital because the hospital has some thoughts this type of damage that is occurring now and will likely continue to occur as time goes by and that once a bargain in order issues it is indeed irreparable it these are you know sentiments that cannot be cannot be taken back at that time the union will not be in the position it was in at the time that it won the election of them will always have to be on the lord's ability to remedy before the minister of law judge once that is concluded it will then go presumably will end up before the board for a decision and it is throughout that lengthy process which congress has and congress from the same to me like there's any indication  except this frustration which has not resulted in really there's no real radical minority union posed well your honor that would that would require the union to or the board to wait until there is a fruition of done for labor practices of the bad faith and one which at that's with the that's what the agency process is addressing in other words the question is why transfer that process from the agency to a court when the agencies take care of that and  the cases seem to say that only if there is evidence that the board has been deprived of its remedial power that's what they were used by i think awfully well but the remedial power is for the board late at some point when it comes time to issue its order to say to place the parties back in position that they were in to say that you shop are going point however the leverage and that are getting a relationship has to decidedly to date and will continue to tip in favor of the company allowing the company to is it is a bit different in the ten context about the type of right that we're talking about and we feel that by ignoring any discussion and i think you'll see this from the district court decision any discussion of the type of public rights that congress declared th acknowledged that losing those rights is you're not losing them you're just have to exercise them in the agency as opposed to war i mean if you tell them issue of court order and tell them are going in good faith tomorrow he will be right back in the court in our view is this good faith and then two days later you'll be again is this good faith that's exactly what the board is doing well as far as whether or not the general counsel or the region would come back but in the process nobody suggested that the process has been damaged but we are i mean we are there we are suggesting that the process is and that it isn't in the process of being damaged because by the time the book the board's remedial thore is to order the parties to gargle going for but if there is a centrally no bargaining relationship or such a weakened state of affairs by the time that happens that doesn't pack the court's authority and that is something that can be stopped at this point but only by this court the board cannot tell them that the hospitals anymore than it has is attempting to achieve through its unfair labor practice proceedings what was the margin of victory up at the bigger hospital i believe it was by about thirty votes but that is that is my memory i could be wrong i believe it's in the record i'm sorry i don't have a more accurate count for you well i will also it just as a final note i know my time is up but i would out what i also point out that the district or also found that the general counsel was the principal catalyst of the law in this case i think that  shows another misunderstanding of the board's process and what's at stake here the the general counsel's office acted quite swiftly in investigating charges once they came in issuing a complaint several weeks later or seven weeks later excuse me involved was then involved in conducting initial or it additional investigation over the merits of the case and whether ten j and attentive petition was appropriate and during this time the hospital did not participate in the investigation chose to you know put forth an argument that the board would be part of the general counsel would be barred from what eating these charges were saying that the general counsel to engage in other early litigation files your application for an injunction and what in july of that year now is that the triggering factor for the injunction is not the issuance or the filing of charges but it's the issuance of the complaint by the general counsel until that happens there is no ability to the board couldn't the general counsel could not have come into the southern district of west virginia back in two thousand and fifteen when this our getting was going on because there were no charges pending before the board the charges were filed in january and then and again that's not the triggering event it's issuance of the complaint in the general  cases in the circuits in which courts have elected to or decided that the four equitable considerations from winter are how to get attention to speak because there are still other circuits that have followed a different approach wrapping in the winter of factors looking at in itself is improper will harm in his law and is likely to cause irreparable harm in the absence of an injunction and we believe that that combined with the at the instep we presented of the individual individual unique harm that went on each of these properties is more than section ten j of the national labor relations act has your honour's have pointed out to my counsel from my esteemed counsel from board the standard under winter is that each factor must be satisfied the district court did not abuse its discretion in deciding to start with irreparable harm factor here and it was not necessary once the district court concluded on the basis of the evidence in the underlying record that the board could not establish irreparable harm furthermore an analysis of the facts in the underlying record illustrate that the district court did not commit clear error in its analysis of facts in the in the record and finally the board has not shown that within the purview of the agency who routinely and in numerous cases that i could cite if requested has said that the agency is the best arbiter of questions about bargaining and what constitutes good faith bargaining they ha to what they've already told you which is precisely what they would do by adjudicating the charges by way of a complaint and a full hearing which would afford the hospital's due process to enter evidence regarding these questions of alleged bad faith bargaining and then the board has extensive remedial authority has cited in our brain to not only just go ahead and say you've got a bargain in good faith going forward but also to require other types of remedial steps like the reimbursement of bargaining perception is that you can't even get the company in a sit down with the even body with you and the more that happens the more they lose confidence and i have asked you to agree with that but do you understand i understand  on the board and that circuit courts on that and it doesn't stablish your honor an inference that in a nice and contract non contract situation with a new union that there could be cases where injunctive relief would be appropriate but that's based on a record that illustrates evidence of irreparable harm like the things you've mentioned such as winning support for the union or the unions inability to represent the members as a result of delayed bargaining and that's not present in this record so you do have a so there have been at it would say that the in the hospitals have set forth the package proposal i understand the board's position that you know some of those terms are not amenable to any union we would assert and disagree with that fact i don't think it's necessary to establish our case here which really centers honorable harm also know that and this is a fact not in the evidence but the parties have actually cancel the unfair labor practice hearing by joint request of the union the employer so that instead of using the time to litigate this complaint they can actually sit down and bargain for a full week next week the only party who opposed that request to sit down and bargain instead of litigate it was the board and this quick look i will call it maybe you may call it some different what the district court did was ok i'm going to look at one of them and then sort of use the reasoning that well if all are required to name was required if i found one d exist then why go through the rest of them i mean that seems to be the reason to have a district court right yes your honor but because there's such a strong strong national policy for good faith you know ripple harm those kind of a thing but this one is big is not just that it's not a tail wagging the dog it really is the dog in terms of the public interest in good faith bargaining and therefore we get to the table in good faith there's no guarantee that you'll get raises the most guarantee you get anything that's different so therefore you never could when and if you look at a traditional irreparable harm standard because you ignoring what it really is meant to do an were cases where you could show solid significant real evidence of irreparable harm a layoff a refusal to reinstate workers terminations those are all cases where the harm is much more granted look for example at the sixth circuit decision in d h s c which was cited to this court by the board and i did file a notice of a response to their notice of supplemental authority in that case there is specific evidence that the number of people who wanted to be union officers dropped from thirty some odd ten for their specific evidence with regard to how many people attended union meetings and dropped from x number to y number that's the kind of evidence you that the district court would need to is what will happen later you said no no we have to prove the later has occurred in the presence to get an injunction and that's that turns injunction on him that's why we're here now because we don't want those things to happen your honor i understand that the standard is less than precise proof of harm but the standard is higher than probability it's likely the likelihood standard it went up with the supreme court well the absolute i also want to address the concept of turning the injunctive standard on its head because i do think that that's what the board's approach here could potentially do injunctions and specifically ten j injunctions are supposed to be an injunctive relief from a final disposition of the case without a reparable harm all the other factors are essentially things that you prove in the case of the final disposition of the case and so the board's approach where they say we'll look at the public interest first that's the most important and let it guide dictate or interrelate with the other factors that's going to turn injunctive relief on its head because certainly the board will be able to always assert a broad public interests while he's hopefully always be able to search a broad public interest in the steps that they're then you can't get injunctive relief and that's true even before this route before we enter text without context is pretext to understand the whole aspect of it won't want to have to go further than just that to understand the whole aspect of it you need to have a full hearing before an agency the has repeatedly asserted its unique expertise in handling questions like surface are going to judge me mark's point that's the whole purpose of the agency if we're going to take away from the agency it was in fact part of a contract with the same union in california although that is correct and all of that comes from the rocker before the district court but that's not in other words the argument if you laid out your argument like it isn't main and only condition is first that there's irreparable harm otherwise you have an agenda or process that you don't want to interrupt yes your honor i would say that that's exactly how it should be structured i would say that at the very least the courts or walk home look like if you look i'm not saying that i don't want you to concede that it has happened will happen but what does it look like if it did based on the precedent that has been put out by the district courts across the united states for the most part it looks like specific numbers it looks like union organizers and employees who can say nobody believes in the union anymore nobody is coming to the meetings we can't comment anyone to come to bargaining very job was closer than all those things and nice but that's on the other side of would not have sought but for this if he misrepresent a wrecker i would not represent the record in the same way that counsel for the board that i w so we're not going to cherry pick the people because people are that's what real life in the truth is there are multiple things involved but the point is i'm asking you didn't misrepresent when she's she's saying that i would not consider those things or leaving another  if when she's made the statement in her affidavit that she was leaving a position at greenbrier she immediately thereafter said it was for better pay and for a better location later in the affidavit she makes claims about some level of thank you your honor i will say that i think what's very clear is that the district court did not commit clear error i think it's an important standard to keep in mind it's a high burden and you know the fact that we stand here having to parse the record about you know how much weight should be given to x y or z in the affidavit is evidence that the district court's findings were propre it the board did make the statement that they don't cherry pick what goes into affidavits and what doesn't but what they are court to do is cherry pick what evidence should have been relied on by the district court and that's not the standard the standard is clear error so unless there was clear error in the way the district or interpreted the record the district court's decision should not be overturned i want to just also briefly discuss delay i will take less than a minute the poor claims delay is really sort of incidental it's not as the judges pointed out the center piece of the district court's argument i will point out that the board said that they needed time to investigate and if you take a look at the dates on the affidavits that were provided to the board they were provided in january in early february so it still stands to reason i think could have been issued sooner even if you set that aside and you look at the distance between the complaint issuance and the seeking of ten j relief there's a four month unaccounted for period there were the board's only sole mission fourteen are and who left employment are in o'brien began her statement about this that she was leaving because nothing stays the same there's changes made wherever the managers want it and it's hard to work that way it's a type of instability and uncertainty that clogged collective bargaining and hopefully avoid that type of unrest she goes on to state i don't think i would have looked for another job if there wasn't so much change and inconsistency of not knowing what to do and what to do in the department and i think that that put stress that my earlier statement was a misrepresentation i would also like to point out a few other factual matters one is that several of the affidavits that are in the record including the second affidavit of miss meade well j two thirty three was taken in june of it was an off investigation at that point for the general counsel to determine that it was appropriate to issue a complaint however as i indicated earlier there are other and indications of course that go into whether or not it's appropriate to seek and jay that brings me to my next point which is that the general lightly to come in to the district court and extend the government's resources in seeking an injunction and i'm not saying that that as you know goes too far in establishing the board's or the general counsel's burden only to say that it doesn't happen very often and so it is an extraordinar d finally you know here we have a certification that it issued just over five years ago there's been a there's been some bargaining now there was a statement made i believe that the oral argument before the district court that there  were the hospital that offer different dates department i don't know that that was ever confirmed three evidence or through anything that was submitted after the fact that believe that that was that was a statement made however at that point there was already the taint the bad faith bargaining there was already an insiste troubled the union the one was the absence of arbitration clause in the other was the management clause and there were very legitimate responses made by counsel for the hospitals to the district court as to those positions and expects pressley stating that they were not necessarily wedded to it they had to take account of that and figure out how to protect the hospitals from this defamation want and this was a serious concern that you know about that yes and yes and so that he conceded to the district court this was unique most contracts have but we're putting that on the table because we have this very legitimate concern and he also explained the times that you guys did meet the proposals and the main objection was those two points that caused a real breach and he offered to continue talking about it but he did state that it was much more trouble for the hospitals to get a negotiating session with the union than union with hospitals and the i think you mentioned forty seven times he opposed and that it was only two times the other way who's talking about michelle oh you know there's a if you think select respond to and that is it is true that the hospital after having been found guilty of engaging in defamation and having a large verdict entered against it wanted to avoid that situation in the future and its method of avoiding that situation was both with respect to discuss any discussion of arbitration and any negotiation or provision of information i didn't say which nurse i don't think that's fair to the record didn't say it says we're not going to agree to that ocean of the package we want to have a whole that's number one and number two there was an explicit statement to the district court that is our position now and it might change depending on what we what we can work out so  serious argument and obviously the union has the right to make those arguments and felt frustrated also but so was the hospital felt frustrated they agreed to a mediator didn't they for the two sides to a court and i own point is your brave came across as if these people just stonewalled and didn't like the labor laws well they've been in this a lot they have a lot of agreements around the country and they explained exactly what their position was to the district we're not arguing the substance or of this but the district court said you know we have to decide whether the injunction is meaningful to the remedial power of the board and he said that power of the board is not irreparably been damaged and that's it made a judgment call and the our task is decide whether that was an abuse i don't need to argue the substance with  you i and i don't want to engage you i don't want to press you on that point because it's unfair for you because it's not been briefed and the district court didn't rely on whether there was a negotiated or not my only point seem or the hospital at the hospitals may suggest that they took a they began with a hard bargaining position and then they took an illegal marketing position after that about faith as a sion of insisting on permissive subjects i think that it is no small thing that after they discharged a nurse and objectively speaking there is i don't believe that there is any disagreement that at that point they were obligated to punish the union with the information the union had requested about that discharge it was a very specific requests they discharged her for attendance problems the and it is well established this is the type of information the union was entitled to and what that tells nurse jackson that she's out of a job and other nurses who might be confronting a similar situation is that that union that they just elected has no power that the company can say no and there's nothing the union can do about it until potentially years later if there's a bargaining order long after than long after that nurse has been discharged and potentially after other nurses such as o'brien has left the property and that is the type of harm that cannot be remedied in a park in water somewhere down the road but it is it in those limited instances that the general counsel invokes ten jack and that is what has brought us here so i will thank you for your time i'm happy to answer any other questions of course but without th