may please the court the board's order in this case should not be in court because it is based upon erroneous legal foundations look i have to say i do not understand your position at all i don't understand why you why you don't want to permit this you know investigator for the union to come in and spend our two in the question how can that harm caterpillar to allow the union the union rep to come in and look around it now they afraid she's going to go into the us competition with caterpillar sell their secrets to other companies so well your honor i don't think that caterpillar offered any of those reasons as why they were not allowing the investigator to come on to the promise  the first request from the union was what you just answer my question the question what is why why is caterpillar what is the harm to caterpillar of this investigator from spending a couple of hours looking around i'm sure there is no actual harm to caterpillar well if there's no actual harm there is obviously actual harm to the union in saying that there investigator can't come in because that that makes the workers feel well the union isn't standing up for them right look if you have a death in a plant that upsets the workers issue and they have a union they expect the union to be active in protecting them against workplace hazards if the investigator isn't permitted to come into the building they workers wonder where's the union they're supposed to be helping us of void these saxons will your honor the to the legal principles that govern not employee access do not allow for just please give me a reason not a principle a reason why it is a harm we know i've just said it's a harm to the union and to the workers to keep this person out now how is it a harm to caterpillar to let her in well your honor i think i've already conceded to you that there is no demonstrable harm to the company and i think i well then i don't get that i don't understand why you're here well if there's no harm what do you care your honor the principles that govern whether or not access from you i don't understand you with your principle if there is no harm having this person here the union wants it and i'm sure the workers welcome a demonstration that the that the union is interested in their safety why is caterpillar bothering to challenge the labor  who order your out of the unions ability to demonstrate its utility to the employees is not solely dependent upon the ability of one not employed to gain access not soley no but it's important it  not talking about the leaky faucet example that you gave in your brief which was insulting to the memory of mr smith for talking about a fatal accident in a dangerous factory if you're out now i don't understand why in that kind of situation a reasonable application of the balancing test under holyoke power would not essentially always call for access reasonable limit reasonable with reasonable limits your honor it may be had access to police had access they couldn't figure out what happened right sure ok so if you want to know i assume caterpillar would really like to know what happened in this accident right if you went to significant links to trying to determine what happened unsuccessfully unsuccessfully so why not let ms thompson give it a try your honor that's again with all due respect i think that's what the company's efforts were trying to do was to explore whether there was any benefit to having by limiting her to two dimensional exposure right well that was watching films that wasn't the only offer the company made as no but that's the critical difference isn't it between will be out of the access that she s critical difference here between that is the point of dispute is does she get into the plant to have to in essence see this in three dimensions right correct ok at the risk i don't want to be flip about this but i can think of an awful lot of situations where the ability to experience a setting real dimensions real speed distance is critical again at the risk of being flip if you watch a big league pitcher on baseball or on  v it's a very different experience from watching that pitch come in as you look over the catcher's shoulder right you can be sure same thing whether it's football same thing picture yourself into the difference between hiking in the grand canyon and watching a film of the grand canyon would you agree there's a difference depending upon where you're viewing the video perhaps and if you've had the experience of being in the real setting to appreciate the dimensions then you can also understand a film better director all of that leads me to think the l j was exactly right in thinking that there really is no substitute for actually getting into this scene where all of the other investigators were able to view the scene well your honor that the question of whether or not and when and under what circumstances ms thompson could or should have been allowed such access was certainly something that we never discounted as he promises you prohibited your honor at the time when it would have been most meaningful while it would been most meaningful at a time when the processes were still in place by the time he was you make a big deal out of that nevertheless there was a second re enactment by the company about a week later correct where did you tell the local union officials you were going to do that i don't believe that the evidence shows that they were why not i don't  think of inviting ms thompson to that time and i think miss thompson had made an additional request the initial request come on obviously she wanted to investigate the fatal accident and you knew she wanted to investigate it your plant manager had checked with legal and said no and then you're having another era reenactment and you don't even bother to tell the union why leave the evidence is it the members of the union that were involved in members of the union participated the question is whether you gave union officials not line workers who were there to follow orders did you give notice to union officials that you were going to be doing this reenactment so that ms thompson would have an opportunity to at least ask if she could come watch that one well i believe your problem is there is nothing on your side of the balance i just respectfully disagree and well right tell us what what is the the that's my initial question what is the potential harm c burden what have you to caterpillar of allowing her to look around there is no palpable harm your honor but then how can you have if you have a balancing test with two pans one of them exempt yours is empty and that the success of village case we cited dystonia village leslie homes are cases that consider the application of leak here in the non organizational do any of them have anything to do with safety and health inspections they do not your honor but ok so what you asking for is a real novelty to them here although you haven't acknowledged it instead you're telling us this is all perfectly obvious and that the n l r b are in the good access for the union officials in the situation as a quote last resort right issue has the does anybody else ever use that phrase last resort beside your reply brief i believe that the imp upshot of leap mirrors holds exactly the same your honor that the balance that is to be struck her right assumes that the lawyers property right and contested facts substantial record evidence supports the board's conclusion that the companies the kember nine two thousand and eleven refusal to permit an agent of its employees bargaining representative from accessing its facility to investigate a fatal industrial accident violated the national labor relations act the company has not demonstrated that its employees rights to responsible representation mis yield to its property rights in this regard the company has not satisfied its burden under the record whole that the union could have the effect that we represent employees throughout time means additionally this case presents an are just fishable matter under article three because it provides for prospective remedies against the company's past them awful kind of question do you think the issue is whether there is a risk of an identical accident or is it whether there's a risk of future denial of access to steelworkers representatives in the event of a safety thompson still hasn't had a full opportunity to look at that mr smith's fatal accident that's absolutely correct it may or may not help at this point we don't know but it's hard to see how it would hurt exactly and that's and and that's why in that regard the board orders not just an investigation but also a health and safety inspection of all the areas where the company is doing similar turning color procedures of these was for her to have that opportunity to make an inspection of the site now it's four years later something like that is the objective to  a is the objective just to have a right to do this or is it the objective to actually look around at the site and their future access it's both but i would future access in similar or identical circumstances is concrete in one of the border but if for example there was an accident god forbid in another part of the employers plant  this would this would have to be litigated again so there's this excess is i guess limited to a response of a specific accident yes we're trying to board the orders trying to remedy the september nine two thousand and eleven unlawful refusal ok so with the access that you would be granted as a result of this argument that she would go and look around obviously everything's changed but it isn't mean that she can come in once a month just see how things are going not necessarily but i would i would provide the caviar that ultimately with the board's order requires is reasonable places reasonable time reasonable duration and ideally the union in the company will be able to if the if and when this court were to enforce the ports order they would come to an agreement as to what those terms meant whether it was once a month whether it was one time however if there was disagreement there would be a compliance hearing where the company would receive full due process rights before an administrative law judge and ultimately judicial review proposition on this matter because no exceptions was ever ever taken to the l j's decision on to that portion of the board orders of the board has never considered whether or not  should be extended to the representational access context and i think that is significant because as your honour's correctly pointed out the company cannot point to any authority for this argument that representational access where a company has a a stablished bargaining represent a bargaining obligation imposed under the act with a union that its employees are freely chosen to be their bargaining representative should be treated similar thing to unions attempting to organize employees under and leach here in which case the those cases were premised on the fact that organizing unions have a derivative section seven right whereas in this case we have a natural bargaining representative who has its own obligations imposed on it under the act under section nine and under section eight d to bargain with the company and the mutual obligation shared by the company  in this regard the board appropriately applied who will water power in the and the company's suggestions that by first looking at the relevance of the information request misplaced in in that regard the company there is the company's argument in its brief about the leaky faucet faucet analogy it does have some relevance in this in the sense that that's where the relevance of the information come in if it was a union seeking access to a health and safety inspection on account of a leaky faucet then the relevance of that information if these are the bargaining unit employees safety is would become an issue and only then once you've established that relevance would you get the actual balancing which would take place under wholly  point out the company has not demonstrated that by by any evidence that its property rights should predominate it has not demonstrated an exclusionary property right it has not demonstrated that the alternatives that it did provide the union and the plethora of alternatives that it came with came up with during the administrative hearing that it believed miss thompson should have asked for would be a substitute for access on the contrary on the other side of the pan as it were miss thompson the union safety expert did credibly testify that the alternatives before her were not sufficient that access was still required and i think that that really is what this case is about it's about the fact that the employer has not met its at the entry bird here it has not the company could have brought its own expert and explained and presented testimony to the fact that the report provided by union rep jim novak that  enforcement reports that the photograph of the d v d s were would would satisfy what miss thompson could hope to learn if she were to visit the site herself the company did in an attempt to proffer such as  in trials involving accidents ordinary civil trials and accident reconstruction expert who has never visited the site is going to be cross examined on that  fact it is the most obvious the easiest line of attack to undermine his or her credibility and if all the invalid if every other investigator of this accident had access and ms thompson did not that handicaps are and that's always i think likely to wind up being true may have it maybe we don't have to decide it's always what i want we want to throw that out as a hypothesis i think there's still under water power have to balance the interests and and i agree that it that may make a company's burden much more difficult under wholly of water power to demonstrate that alternative means would satisfy the employee's representational access but i don't think it's categorically precluded that i see that my time is up if there are no further questions  the same procedure which as caterpillar excel itself explained to the union in a letter is actually an unavoidable part of manufacturing the crawler equipment so the cause of the accident that killed mr smith has never been determined and the union continues to have concerns about the safety of the crawler rotation procedure our members continue to be exposed to potentially life threatening safety hazards without having had the benefit of their union representative investigating the color rotation procedure and potentially determining ways to make that procedure safer and preventing future accidents this is despite the fact that the part a that was in place at the time of the accident that the company in the union will cooperate in the objective of eliminating accidents health hazards and protecting the plant environment so why wasn't there more wrote to the union on september sixteenth and explained that osha and local law enforcement had access and that the the local union officials were present for the ocean  so the company said that that was sufficient and so therefore the union wouldn't need access to the union risk bonded to that letter on september twenty sixth and explained that the rule of osha is distinct that laid out in painstaking detail i'm just trying to understand why the union didn't in essence take what was on the table without waiving your right to go after more well we did actually for example when the d v d was offered the union said to the company we will accept the d v d we don't think at this time that the d v d is going to be self sufficient however we'll except the d v d will review it and we will let you know at that point whether the d v d is sufficient there is a lengthy process of negotiating a confidentiality agreement to receive the d v d once we receive the d we said this is not sufficient this doesn't this doesn't satisfy our need to properly investigate this accident scene similarly the company offered other to do the two dimensional photographs the the police report the union once again said we will accept all of that we want all of that however the union did inform the company that those two do not two dimensional reports and photographs were not going to be sufficient that was continually expressed to the company throughout the communication and we also continue to express to the company that because this crawl manufacturing procedure continues to happen to this day there are many other opportunities for the union to be able to come in and view the process why do you think that companies didn't want to  honestly i i don't know you know the union or i'm sorry the company to the board made to the a l j made the argument that it had confidentiality concerns court the company did not raise the confidentiality concerns in regards to the confidentiality concerns we were willing to to enter into  caterpillar is opposed to having the union investigate this accident it seems to us that you know in the case of a fatal workplace accident and specially in this case where neither osha the police or the company were able to determine the cause of the accident why you wouldn't want another person to come in and take a shot at determining the cause i'm just not sure department for a number of years she's been a member of the emergency response team which is the teams that goes out to investigate phaedo on catastrophic truck catastrophic accidents i believe she testified she's a member of the been a member of the e r t for process or if you know we she able to go in with people who are on site probably union members to talk with them while she's walking around or is there some limit on the well i think that depends on individual circumstances ideally that we would want her to be able to go in and have access and have say that in the vast majority of cases where the union is sent out where the e r t d m a send out to investigate accidents the access issue is not a problem to start with your question your honor concerning the relative i guess credibility of a particular investigator i'm not sure that that's really a relevant issue no one's doubting  nobody knows what the results of anybody's investigation would be right and there's potential for litigation for administrative hearings osha proceedings who knows what right yes sure so there's certainly potential for concerns about the credibility of competing conclusions about the reasons for the accident right outside the n r a context perhaps your honor i mean that's certainly not anything that was discussed or at issue or  that that motivated any of the q so what does motivate the kind of companies consideration since there was no harm you've told us you know and i think at the time that the request was first made by the union there was a request for a join investigation and the company responded that it believed that the matter had been looked at by osha by the law enforce what i mean what are they what was the motivation the motivation at the time your hon i didn't get the faintest clue from those videos of the cause of the acts as someone explained how looking at those videos you learn anything about the acts of all you see is this big chunk of metal being moved around by a chain what is that what is that supposed to show when you're on i think it what it showed was the actual process that was in place when the accident occurred i mean that there is a stand that what it shows is this huge block of of steel or whatever it is which you would not like to have fall on you being dragged around information that was available i mean that that may be something that requires further anywhere you think that and it only shows it from one side that struck me as very puzzling why isn't this mechanism you know with a chain and a huge chunk of metal why isn't it shown from the other side as well and it's in crowd but i believe that the protocols that explain what was happening you're out are also providing the ones that were in place at the time as well as the ones that were that were modified but as to whether or not there is a future dispute no one is saying that caterpillars not taking a position it would never allow the union access that is negotiated access provisions in the contract that deal with the local union committee mel might have a simple why wasn't the video also taken from the other side i don't know that there's any evidence in the record as to why that was ok well thank you very much thank you gloria grayling mr fischer move on to our next