know that but the board's rubber stamp of approval of the a l g in this case like the court's decision and jackson hospital six hundred and forty seven that three deal of and thirty seven requires review they told you his decision is not supported by the way to the evidence  plate guards over the lock and latch gesturing doors the boys were in a safety meeting fifteen to twenty others were present according to him and one other it witness an operating engineer named fred tell you tony open the meeting by complain about the possibility that he could be exposed to secondhand marijuana smoke while working in guest rooms they asked the department director rate cordell to get a procedure cordell told them to call their quote sr watch which is the name of the lionel supervisor in the facilities department according to sram intends testimony and they asked for clarification and it is at this point that according to them accord all got mad his face supposedly turned red he supposedly threatened sram by saying and then almost like a movie ten you supposedly said that sounded like a threat to a shrimp provide that's didn't sound like a threat that was a threat and that was the testimony at the trial and during the hearing tenney testified that he walked out of this meeting logged into the facility department's work order database called hot sauce and immediately made an entry quote re threatened carpenter sram claim that he intended discussed this entry and the pain even gave him the workers so that it could be accessed later on when they also discussed filing claims with osha and other administrative agencies of the same thread and here's the thing anyone who's done trial work knows that the evidence i just described contemporaneous written no transcribed into the company's work order system is pure gold is the best kind of corroborated evidence that could be produced during a hearing it was p before the hearing that's absolutely right but what i was just saying you didn't know before the hearing that time he was going to testify that he made an entry that's right on page twenty four of our brief we cite we cite the complete allegation then ellerby is not even required to disclose the date the a legit threat was made the complaint is that it happened in late november my point is that in normal practice if such a any conversation that took place that day corroborated all of the companies witnesses they all j disregarded that contemporaneous notes on the grounds that he may have thought it was a different day the that wasn't justified given the question and i think it's those records were blueness but they demonstrate that what mr tenet said wasn't true and what all know is that he prepared with the general counsel's warrior at his house before the hearing again i'm not suggesting calculated it was even more it was way here because by alleging that a record existed within the company's recordkeeping system had we not been able to obtain that record before the close of the trial there would have been an adverse inference interview against the company there was no reason for us to get twelve thousand records when he stated with certainty that the threat was supposedly made on november st we found a record from that date that said not only did what he said was false that he had  pardon me you knew that the hot sauce records were an issue we knew that the hot sauce record for that date november st was issue and what i would suggest is that this is the only case i have ever been involved in where a witness under oath a mistake purposely misstated what he put into a record the aylesbury excused him from that mistake on the grounds that he may have made a mistake that may have been a different date adding in the additional documents which show that he didn't make any mistake at all it's possible i suppose they'll chase said in her decision she would have credited him in anyway i've never seen a situation where an l g or any other finder of fact has credited the testimony of a witness who white under oath that whether there's reasons that supplied her decision for doing so that's not a preponderance of the evidence that's not sufficient evidence particularly when this individual mr tony was the only witness who corroborated the charging party and the l j credited the charging party mr schramm in this or any because there appears to money was internally consistent that was the primary basis for crediting and giving weight to both of those individuals testimony i don't ars and i mean when you say that you don't know of a case where someone is credited the testimony of somebody who lied under oath because that isn't the question whether there was a lie under oath any question about what took place nor did as i said nor the general counsel require we call mr timing to say that maybe it happened on a different day the complaint alleges the threat happened at the end of november two thousand and thirteen mr said yes i know because i was there i don't think that the date was in dispute so when l j suggested that well maybe he made a mistake that wasn't justified by the record it was a permitted by any reasonable inference it was an l j backing into a credibility to search his determination because she apparently found the person personally for so i'm almost out of time i do want to skip ahead to one other issues the weingarten allegation and i would add that the discharge allegation made the company's tradition of mr schramm it relies completely on the threat allegation and all absent that threat there's no evidence of andersen the record start to the weingarten allegation although that the one of the members of the board dissented from the board's decision and he explained that that was because mr friend never actually requested a representative and all know that wein garten is not miranda mr shrink showed up to the to the interview having knowing that you call the union the union representative wasn't there he chose to go forward anyway there's nothing wrong with what the employer did wein garten didn't require the employer to stop the interview and help him find a representative when he knew that his representative wasn't available and he didn't request alternative representation weingarten like i said is not really into it's subject to the practicalit i wish that i had representation then we would have said do you want representation there so we can you have three options we construct rights and then everything just turns on whether it was arbitrary for the board to conclude the majority of the board to conclude that when he said nobody showed up i'm here without representation he signaled that he would like representation right angle if you agree that if he had sake if you conclude that that's a signal that he would like representation then the way things proceeded from there we're out of step with my god well i i don't agree with the factual conclusions that never reach all of our witnesses said that he could make such requests but when i said when you say signal if you had actually said i we're in the right to count representation under weingarten flows from a duty to bargain it doesn't flow from the constitution or any others that does a whole point of the board's cases they just they don't accept that there needs to be a clear statement they say no magic or special words are required to satisfy this element of the mind i don't disagree that no measured words are required but there needs to be some manifestation of a request he didn't make a request he said i called the union law imposes the burden on the employees to request alternative represent when one when he's looking for a particular representative as opposed to representation generally well the evidence is that he contacted richard williams the secretary treasurer of the carpenters union and that was the representative that he requested attended the meeting so it doesn't say he never claimed it one way or the other who he was attempting to have represented at this hearing but he called one person that one person didn't the ring set forth in his dissent the shop steward jiri monk who would have been available to him was in the carpenter shop at that time it would have been very easy for mr schramm to request an alternative representative if you right of the employee to refuse to submit to a new well without representation so the question is that he refused to submit to an interview with without representation he did not and he did not refuse to submit to interview without representation he showed up there was no representation available he didn't request representation he proceeded with the hearing so then but that would've been the case even if he'd asked if he said i wish them represented here you think that at that point the company could have continued questioning and then the response to that event well he didn't refuse to participate without a representative because he answered the questions or will know once he actually let cancer write writing no i don't agree that once you request a representative the representative in your view and i understand your view is that they weren't but what i would argue is that the war is the issues not whether or not the boards application of weingarten was arbitrary the board is applying supreme court precedent and the board's application printed the best version of events is that he showed up and said i call the union three times even though he only called twice i call the union three times in the woods here right in your view is that just that that can't be seen reasonably by the board as an indication of an interest in representation that's right please the court kelly is still here on behalf of the national labor relations board this case is primarily a case where circus is challenging the board's credibility determinations and the court does not overturn those the terminations unless they're found to be hopelessly incredible and on this record they just are not if we start with the threats not only detaining and sram usually corroborate each other's testimony of the l g a explained her findings she said they both answered in a forthright and honest manner manner they were not argumentative and they answered her question of the questioning honestly she also said that only cordell of all the witnesses put on by the company only kordell said he did not make the threat the other company witnesses either weren't i asked or couldn't remember whether the threat was me so there is no rebuttal testimony saying threat didn't happen in the company side what we have are two witnesses explains why there were a couple of a couple of dates of hot sauce records entered the issue of which date the threat occurred was in question during the hearing because teddy might have said it's the st sram said could have been the week before thanksgiving or maybe the we got thanksgiving i think we had our thursday safety meetings on wednesday cordell the chief engineer himself insisted that it was december th there was a question about which time this whole discussion about marijuana smoke occurred but the l j explained that even if teddy had never made that entry that he misremembered what happened she believed that the testimony he and sram gave was so compelling that she believed them she didn't think telling it was somehow creating i don't even know that they put this below that ten he was trying to put something over on the judge or that he probably a better question for mr trimmer but as i flip through the records and there are things like he would record every time he went to a hotel room to fix the air conditioning i mean anything he did i'm not even i think probably anyone who has a blackberry mr schramm didn't have a company should like barry said he couldn't and housekeeping would put in a request for the curtains or down in room three of mine and somebody would see it and go do it and made the same notations but i do know they all jane was very careful to explain why she did not consider mr tenney to have committed perjury by mis remembering the substance of his  so that's one issue of credibility we also have the the weingarten issue and the able to be found it very was no dispute that shari'ah made the statements he made about requesting a union representative mr cordell the chief engineer said he didn't request a union steward which was undisputed nobody said it requested instead but i don't think there is a dispute about what was said i know there's an argument has been made that you shouldn't predecessor money but the principle argument is even if you do credit the testimony that's not enough and right and we of course think it is as you only have to have the employee has to use language reasonably calculated to apprise the employer that he wants assistance and i don't know how you could listen to this words and not know that sram wanted assistance i called the union three times nobody showed up i'm here without representation there's nothing else those words mean and once that request is made the employer has to stop and give the three options it just seems to me that when you read those words i did both both sides in some sense seem to be overstating the case because when you read those words it sort of depends on the impression you're left with after those words have been set because he could have followed that up by saying and obviously what i'm saying by that is it be great in my mind if their representative here if that's what that communicates than your very good step if what he followed up with is and what i'm communicating by that is even though i don't have a representative let's go well then you wouldn't be in such good stead and so it seems like he said some words that we for our purposes assume that is the state of the record and then the question is what's the impression that's left by that well that before i read let me just say st of all that this is exactly the kind of question that the court leaves to the board's deference determining whether or not those kinds of statements meet the weingarten standard and employees i tried to find a case that said exactly the same thing but of course nobody does employees say wildly different things i need a witness what does that mean you've got witnesses there are five people in this room or i need someone who can explain this to me well the h r people are here they can explain it to you but so those are those are those statements are actual cases where the board here even in cases where please don't mention the union or representation the borenstein the one who are in violation here sram has made it clear that he is looking for union assistance and i think that's enough under the board's read what i i think you're asking whether or not the word we always think reasonably whether or not the word reasonably applies the facts of this case to the standard was it reasonable that this particular question is not substantial evidence so a representative can witness yes right and so i mean does your is your position a sort of does it require essentially an employer to make some kind of prophylactic statement yes yes let's assume that the question the employee has given sufficient notice then yes i have simply i understand your view of the board's he is that they've given sufficient notice but then they also choose to go ahead with the meeting which is preventable under weingarten so decision on discipline based on what you already know or three you have the middle option which is giving the employee the request to go forward without representation or to stop and they had implicitly what happened her adoption because when you're in the senate to sort of balance the inequities of power in these kind of situations the employer needs to give the employee the choice he doesn't know or they need to try their he for cases or cases from the circuit suggesting that the employer has an affirmative duty to spell out those options oh the wangberg say that i didn't think there was any i don't even think the employer disputed that if there wasn't fact a request here if he had said exactly what he said and he tree works is the st question is whether the request has been made that's just and there may be here's the one certainly like this one where it's not and if it's not an affirmative request made the request could have been you would have to agree a request could have been made more clearly than this was yes or right so it is uncertain in some sense and then the way the decision tree work is the st question is was what was said sufficient to apprise the employer of an interest in representation yet here and if that's true then the that's just the way weingarten works is at that point it is incumbent upon the employer to issue the choices so everything turns on whether at the st step to what everybody agrees was a statement that was made was enough to prophylactic statement once the request is made one of three options or one of three things have to occur if the request is made the employer just granted or the you surely are can say this in nothing else if you want to represent it we're not going to interview and i say nothing else or the employer could say we're not going to interview people period and discontinue the interview all of those things would be permissible this sort of three multiple choice options don't need to be presented to the what in terms of continuing the interview i think everybody agrees the employer can't continue the interview without saying anything once or about it yes i agree that's what i'll say is you know typically whether a what right has been waived is whether it's knowing involuntary there's no dispute in the earth calling the h r representative in for mr schramm of his right to obtain a representative which is what triggered mr sharon's calls to the secretary treasurer of the carpenters union he showed up at the hearing ready to proceed with the interview knowing that no representative was there and he didn't request an alternative the other thing i'll note is why governor doesn't have anything to do with the balance of power under the langar decision issued by the supreme court it flows from the duty to bar the weingarten representation is necessary to assist the union in prosecuting rights under the collective bargain here green it doesn't have anything to do with some sort of substantive right that employees have to have assistance during questioning the last thing i do want to dress is the hot sauce thing hot sauce is a maintenance database that's used to log every worker in the entire hotel casino so if there's a problem of a faucet in the guest room if a piece of tile is loose down somewhere in the back of the house all of those things are locked in the hot sauce and then assigned to the appropriate division within the facilities apartment it's not used to record or place concerns of work place complaints or anything like that there would be no reason to ever do any of those things person calls the front desk from the front desk that makes an entry in the hot sauce and it's automatically routed to a member of the plumbing department if no one in the plumbing department sees it on their list of work orders and takes  manager in the plumbing department within a sign that task word is someone but in terms of what happens with the work order after that it's not reviewed in any substantive way by management it's that some accept the work order hasn't been fixed