testimony was taken or evidence presented a l j mccarrick made three fundamental errors that undermine the board's decision as a result in a future with employees section seven rights to select their boarding represent years earlier actually tainted the loss of majority support left the decertification position in this case to l j mccary made a fundamental error by refusing to allow the shino to obtain materials and information shown is first that the evidence gave the employer and objective the reasonable basis to think that the union had lost the confidence of the majority and then if you have two of the kind of figure at the time he goes on you can't come in now and say oh by the way we'll show you who did it work he's saying i'm just part exactly opposite of what you just asked me you can't come in now and then the users know it's not what we need to know what more we need to know who actually was employed at the time can we need the signatures who are those employees did they you know do the signatures match back employees actual seems we need to know that it is a burden they have to establish at the time they receive the documents i'm sorry the nexus of the key sentence so that if somebody can't if somebody from the employer can't authenticate all of these documents or didn't authenticate all of these signatures the time they received it as far as i'm concerned you dictate considerations are invalid as it seems i read that the ale j is giving you two options right and only one of them is stop with the time they receive the documents the sentence before the sentence after you can't come in now and say oh by the way we'll show you who they were which is would be the second he says you can do that you have to do it then have a good employer that has signatures on it do you agree that that's without even looking at some places for the employer to announce on withdrawing recognition of the union or do they have to have an object lo in check that is that objective proof probably would still be in my view so they probably would still be objective proof in my view if you didn't check at the time but i just didn't know what you were proffering as the as the objective but the w there was no delay in the arab case here wife annie if that's the case then you don't even get into the question of whether or not it was on we're going to say you know are you available in these states and we're going to be back as a responsible union should be back in touch with members and formally barring prior's according to the numbers which is fast times and is the way and intimate as valid the board of the ninth circuit conducted a proper analysis of a three month away and allowed the employer in that case to introduce evidence over why there was a del j two eighty three we have an e mail from the union hi mary thanks for the information we'll be reviewing it and proceeding with proper preparations for bargaining if there's a reason to me tomorrow give me a call because that's fine please let me know what dates you have so that's fine to take the time to review the information proceed with preparations for bargaining delay where the employer had said that's fine and never voiced a word of objection and you see things proceeding in its organize steps here within a reasonable time frame and i'm not aware of face on things they project in several absolute unacceptable i think that in some ways it is a vast face shown by the union knowing that they've now lost majority support the third piece on really they didn't know that they were hers they were knowing they were coming up against that i made please the court i'm quite intelligent on behalf of petitioner jose lopez as you have heard this entire case revolves around one thing the timing and validity of mr lopez is the certification that  e collected yet when mr lopez filed a straightforward motion to intervene to ensure that his petition and his section seven rights he's the only person in this room who has sections be any reason for your intervention yes absolutely causative plea and i'll tell you why because mr lopez could've orford evidence and testimony that would have been relevant to that issue and all others through the certification years because mr lopez had no way of knowing when this certification hear the word and the the employer well if you look at the a what the ale jay said about the l t d ceramics issue which is on page j twenty two the a jaysus they responded chose not to offer the petition and it is safe to say that the signatures were collected prior to june ninth when respondent received the petition does this case distinguishable from the mr lopez could have testified that he had no idea when the certification the year was he was doing his best as an employee to try to protect his rights and the rights of this fellow employee used and that this case really was like will he be surrounded he said he didn't have any way of knowing it are you saying as a matter of fact and mr lopez did not know the senator case i don't guarantee you that the board would have said we can't process your issue we won't process your vision because we have these things called blocking georgia rules which in the skull miss case that this court issued a few months back judge henderson's wrote about that these are board rules that prevent employee each from exercising their section nine right so they were talking about the role that when there's an agreement and i say no no i'm talking about when a union files unfair labor practice charges that aren't fully remedy then no election can go forward just like the board is say this withdrawal petitions was and that it had he filed mean it's the same issue that intervention addresses the question is is there something worse or you know about people left to section nine rights and i get there and there are someone's tenure in office people may lose confidence in the wall so too with the union there's a period in this city so that action happens and then there's an evaluation so i think you should not be a fan understand your argument the argument that employers don't represent employees for purposes of asserting their rights in this regard what what is your what your position on that every employee that signed that petition and the same issue arose there it's clear that the n l r b looks at these petition these motions to intervene in a very haphazard way what they see now is you know this is a pattern i'm saying what do you recommend i get that employee imagine you've got you know there's some great big companies have enough thousands of employees and everyone of them how can we say no you don't get to but the five people and the twenty people that help to collect this get to them i think the answer that i would give you is now or at the adequate representation pran of federal rule of civil procedure twenty four assuming we're up like that by the allergy in other words if i represent mr lopez and i file a motion to intervene and now i'm representing mr lopez and twenty seven other employees separately try to intervene at that point the a o j could say well you are represented by mr lopez and his attorney so now we have the duplicity duplications here and there is already adequate representation but as far as mr lopez is concerned there's never been adequate representation this case but i think that's the answer to your honor question at a certain point the jason to say this really adequate representation so we don't need nine hundred signature signers to come in but as long as we have this one person who did file a motion to intervene who has an attorney and it in the answer i think to wonder judge awards questions mr lopez was physically at the hearing at his own time and expense he showed up at the hearing with this lawyer he sat through quite a bit of the hearing at a certain point when it was obvious that he couldn't intervene and he wasn't going to be call he went back to work a shift now there was discussion colloquy at the end he could've been called back the next day it was really late in the day they could've suspended the hearing and said ok mr lopez come back tomorrow the ael j even could reconsider his decision to exclude mr lo and there's testimony in the record that everyone recognizes or it's a colloquy at the end everyone recognizes that mr lopez had a lot of valid and valuable information to give  and i'm happy to provide that to the board can transmit the short document it's out this morning i'm going to start with what was the very first question i'd like to offer my answer your honor asked you know laying out that we had this sort of in our full colloquy towards the end of the  toward the end of the hearing what do we do with this and what do we do when there are in our pool statements between i sort of everybody i think both the general counsel the union attorney u turn for the hospital and the a l j and i think what we do with that is we've hold a prudent counsel to preserve a record for appeal there is not a definitive ruling on this record they o j did not say you cannot introduce respond to exhibit number eight you cannot introduce that petition when we have it is a game that many in our full statements but we had also at the hearing at the time was the h r representative shot miller i think is the name who by all accounts was the one who received the document and we read the transcript with the a l j the same way that your are to judge the earth that there were two alternatives you had to offend to keep the document because let's remember how this conversation that we're looking at the pages toward the end it came about because the hospital attorney said we would like to enter this document into evidence i would like a stipulation the general counsel as to its authenticity the general counsel and the union were both uncomfortable with stipulating to the document for various reasons so then follow the conversation about how does this document come in and there was some in again in our full legal statements but at the end of the day hot the hospital representative was not prevented from entering that document into evidence in fact the very last thing the judge says before ultimately the hospital i guess decides to rest its case the male just says and this is  are four of five you have to have it's did you have proof that the union had lost the majority now maybe you can establish that maybe you did that i don't know i'll give you an opportunity to show it so that's where i'm going with that with respect to our x eight which is the petition that something that respondents witnesses will have to establish so at that point the door is wide open for the hospital attorney to formally on the record introduce left wide open and what this counsel opted to do instead was rest so we do not have a clear record on appeal of what the a l j did would informally done if presented with the petition would be in our full statements have carried the day when briefing things i should have said is and i think there are as all recognize as there are three independent separate browns for holding the boards finding that the employer on lawfully withdrew all of them stand on their own they're not interdependent so this one about the lack of support does not matter the petition does not matter if it could fit if the withdraw all occurred and the signatures were all so this is what puts it on a different footing than ltd ceramics and the east remix several of the signatures in that case were obtained at the tail end of the certification period so during the borrowed time but then the majority of them actually occurred outside that window here we know every single one of them had to bend them taint before the employer with your recognition that puts it on a very different  footing and it's not a pain to miss doesn't make sense in this context are diminished in the context is to minimize how many of those signatures really at the end of the day only came during the small window of time during the wintertime where you shouldn't have gathered them and are they small enough so bad we're going to let the timing of this collection of the signatures matters for purposes of the bar if it was if it was shown certainly that the titian in this case the authenticity of the documents if it is shown that the at that time the employer withdrew no sorry to your question about the collection of the signatures yes if they were collected during the period during which you were not permitted to do that then yes the withdrawal based on that under the case law is with the exception of l t d so again you get into were some of them collected curtailed during a very defined period of time he could have gone around and he can still do this now and tell everybody how much he doesn't think that he means any good thing is doing anything for me i think negotiations are dragging on this terrible what he has to stop short of though is a totally different life outside this record i'm sure i've i have experience with you communications i've seen them and those good everybody everybody in the bargain you know whether you want to be there or not so i'm just saying i don't know with this particular how this union communicates with its employees or whether it does as extreme rather as threatening to close the whole hospital if the union came in they discharged the highest level organizing person there who the chief medical officer of the algae i get that i think that th of causation under the for it does that to support have to go to the fourth factor or is it just like you know we've got the first three you can if you all four factors enter into the first three are objective and for the form factor is the only one that it is subject to in the sense that it was there disaffection among this unit and i know that there's not so subjective as  it object it but you're right specific to this case as opposed to and what would be the evidence that would show lack of cause ation in under four i'm just trying to think of what you know is that we i mean we really have to be sensitive to th my answer is going to stem from i'm thinking of the opposite of what was introduced so what we had here which the board determined was sufficient under the support prom was the union official testify not only to the slow walking of the contract negotiations but she also said as a union organizer in the facility that she felt like nobody trusted her anymore that she was isolated that nobody trusted the union nobody would speak to her anymore so that was for the board's purposes sufficient to show disaffection on the fourth from so to answer your question i guess i would think perhaps the opposite of that so if you could call witnesses who said we don't like i'm trying to think what they would  saying we don't like the union and we don't want the union because i don't they're just they they say that here where they say nothing's happening which is not only do we have that and it's difficult to untangle it what does it mean when people are frustrated with the pace of negotiations is that the unions fail or is failure as a negotiator or is that the failure of the base to be moving forward because of continued on for labor practices and the inability of the union to morning may please the court pamela chandra for the union i'd like to go back to the question of whether there was actually a delay of twelve weeks or whether it's more accurately characterized as proper preparation for negotiations after a period of several years in which the union has not been allowed to interact with its members because the employer has kept the union out of the hospital and because the turnover has been so i between the time of the election and the time of bargaining began there have been fifty percent turnover which is probably a conservative estimate because it doesn't take into account people who may have been employed subsequent to the election and left prior to negotiations getting the union was effectively starting from zero usually when you're beginning success initial contract bargaining you are coming up a period of momentum from the initial organizing efforts here the union had to reintegrate itself into meeting the nurses it had to learn what the issues were the nurses it required those twelve weeks to properly and effectively bargain for the nurses and as as noted there was constant communication between the union's negotiator and shot miller the negotiator for the employer in which miller was  hospital do we do it in a hotel how are we splitting the costs for this there are the typical preparations between two parties for negotiations you have the union informing of shot miller here is the bargaining team that has been elected from the released that's typical with the hospital bargaining unit and required to be prepared because nurses are not trained workers and they need a little boost each union with orman you know members who were at the table who were asked questions why the rest of the bar in the unit and were encouraging and supporting the union and then perhaps you could have testimony that after twelve months of bargaining those same exact people who just told us earlier were actively supporting no longer supporting the union the base thought he was taking too long they thought the union wasn't doing the job  and thirteen that is exactly the sense your honor is asking for and it was presented here unlike the cases that the board relies on where there was no evidence to support the fourth factor and the board says look where there's no evidence and for fact we just looked at  warmer turning my phone calls any more the conversation is this is the next page a conversation i'm having a very different people are giving me either ignoring me entirely to me one of her responses very different than when i left in the twenty twelve then how how people treat on the mr slack factor for this is precisely why mr booked this should have been allowed intervene and answer the judge a large question what kind of testimony would an employee have given if you look at mr lopez's declaration in support of his motion to intervene which is j a sixty two he says quote i have never supported you nak because i believe the nurses the jena valley are treated fairly and well and therefore need no outside necessarily saying every employee needs to come in but the fact is mr locust did come in with his attorney and went to the hearing there were ninety two other employees there willing to give th