good morning your honor as i am down shared appearing on behalf of the respondent clocker quitman rental company the reserving two hours rebuttal time we hear it is to court to deny enforcement of the board's petition to enforce sixteen thirty four years later two thousand and fourteen when former in here in thirty six years later the board's decisions are still result oriented president is irrelevant and the most important driver in in our b decision making  does the union want in a decision a good one could we can it narrow down this global attack and get to this particular case your problem is the standard of review that we're required to employ seems to me so you've got to convince us that the board was arbitrary and reasonable or abuse their discretion in this room getting to to to do that you get to show us that the findings aren't supported by substantial evidence right now i  completely agree with you that there are good arguments on both sides of every one of these tests i get that but the fact that the n l r b picked the one you don't like doesn't mean that the basis for their decision wasn't supported by substantial evidence or that they were arbitrary unreasonable or an abuse of discretion even if i don't like their decisions so how do i get around that i don't believe there are good arguments supporting union b decision if you look at the kitchen or b and that's what i was about to get into we have a situation where there is one employee who said going to michigan who is one hundred eleven miles away from the only mean facility in michigan so should distance alone be dispositive no but if you look at the factors at the end or be his looked at when fit when distance is an issue you can see that in order to be is being or between this decision fork you'd have a you'd have a pretty good argument but they didn't ignore those they recognize those decisions and correctly or incorrectly they adana fide factual distinctions between the cases so all your complaining that they've been inconsistent between a verse and this case in the distance what the board says about a of us is they any of us a board determined there was little interchange between the employees at the employer's different locations and their working conditions were dissimilar here in this case they find correctly or incorrectly that there was interchange the guy at the remote location took his direction from the guy in the main office and the working conditions were similar as they seem to do basically the same thing so i know you can quibble about that but to say this is spurious i mean they told us why they distinguish us then in clover fork they go on and give us a similar explanation of why they found those cases not to be binding or persuasive so how is that arbitrary and capricious because the fix in our case that the phone up with these two cases we don't want these guys in ok here's the pictures to keep them out when the union says we want them in here the same factors to keep them in so if you go back to eavis as you mention about the supervisor in said the supervisor visited the employee the second location once a week he said that's not enough orders from the computer up to what is it three times a day or he talks to the guy three times a day as opposed to him showing up what was that where's the material distinction there because the and or b said the issue was visiting location to have some connection to that to the unit and says here's some integration to you there's no integration into this unit it's a community even so integration has to be face to face in the same physical location there's been no in  it says there you are and i've seen the community of interest when people are just hundreds of miles one hundred miles away and communicating by phone and this is not even communicate with the employees three times a day this is you were talking right now about the supervisor which is more tenuous is that in order to do the complicated work this employee needed the help of the other employees from the main coverage period where someone from oh no one in the cistern project happened only two times that you're focused so far and your argument about distance and whether somebody is communication is to face so easy to say that it would make a difference legally if let's assume we have two units that are in buildings and share a common parking lot so they're right in same location but instead of walking across the parking one supervisor walks across the parking lot three times a day another supervisor calls across the parking lot three times a day there would be a difference in outcome because one walks across as a versus the other in this situation would not be because the units are so close and probably be other factors that i don't know other factors that other than that they never talk to each other and ever see each other maybe if there's no connection between there's no community of interest in the only fear to that you're saying is the supervisor gets on the phone and talks to somebody in the second building i would argue strenuously that was no community of interest between the two while i understand you would argue that what we're trying to figure out why the weighing of this evidence and the application of their precedent is arbitrary and capricious not whether you have a good argument i think you do not whether we might come out differently maybe we would it is indeed just be ignoring the deferential standard of review say these are the factors and this is how we come out in your view and i still think the answer is when the unionists a question there's a rooster is a response you look at the case law i was looking at this cities was forty miles in one location forty miles another location and they're in they said there was a lack of employee interchange between the facilities we have a lack of i'm going to change between the facilities they said the employees had the same fringe benefits we don't have the same fringe benefits but in part you don't have the same fringe benefits because the one in sag and i was not a member of the union so he has not been given the benefits that the union demanded in collective bargaining so my right you're right but that still there is a difference in benefits i mean it isn't that circular you know or arguably had you win tails the other guy loses i mean you're just  i don't get that in terms of the difference in benefits i think there's a difference many who's in there's a difference in pay the bill definitely is a difference in benefits the difference in pay i'm curious about what is the pay of hires and twenty four i think for the mechanics there's evidence in the record it was thirty two dollars and where did you get could you give me that site because i looked at the site in your briefs and it didn't seem to correlate so i was wondering that's the only cited i have as well in the brief  s and at least sixteen to twenty four in this individuals making eighty dollars no insurance and no pension he didn't have the benefits that the union people had and so i just  computer the morning your honor may please the court michael jackson on behalf of the n l r b the board properly exercised its broad discretion in determining that the company said all based mechanic could appropriately vote to join the existing unit of mechanics and truck drivers based on my opponent made a statement that there is not a scintilla of evidence to support the board's funny our position is that the record provides overwhelming evidence far exceeding the substantial evidence standard necessary to support the board's factual findings to support those findings and furthermore this case is a little bit overwhelming you really want to stick you really want to go there i think it is i really do think it is your honor but if i could point out a unique circumstance in this case in light of your precedent this is overwhelming not saying whether you win or lose i'm saying in terms of that's all well taken your honor i guess that if i could point out a another unique circumstance in this case which is that the court heard the need to look at the record because the company in their opening brief admitted in the record your honor to support word that the argument somehow is in conflict with this case right well i think that the board appropriately distinguished davis by pointing out that in that case it was determined that there was little interchange between the employees and that the working conditions were dissimilar whereas in this case we have a lot of interchange we have well we have regular interchange i should say and we have overwhelmingly similar working conditions and looking at all of the community interest factors together which the board has broad discretion in wayne those in making the the global analysis in the global to determination of whether there is a community of interest  there's the board's findings are well supported the company does not dispute for example in terms of skills that mr miller that was the that's the second mechanic that he possesses identical skills to the performed by the mechanics in the bargain if you like going out into the field to customer job sites to repair equipment performing repairs in the shop preventive maintenance in the shop checking equipment in and out ninety five percent of mr that he performed in the shop are identical to deduce that are performed in the shop in he just can do some of them because of the different type of quickness and the different size of the facility they also have the mechanics that is they share besley similar working conditions they're all paid on an hourly basis mr miller's wage rate is squarely right there in the middle of the range of the wage rates paid to the down the canucks some argument that your that as the board pointed out that simply reflects the fact that mr miller was not in the bargaining unit and the other mechanics work so they had the benefit of collectively bargained fringe benefits so that's that's the first point and secondly that hardly even setting that first point aside that hardly discounts all of the other overwhelming similarities in working conditions like the pay rate that i mentioned like the fact that they work the exact same hours seven thirty am to four four pm each day with the same opportunity for overtime like the fact that the company emits that they have similar paid time off benefits in terms of vacation sick leave that sort of thing it's again undisputed they're covered by the same personnel policies they're covered by the same they've got the same direct supervisor service manager snyder undisputed he directly supervises the melody a mechanics and this economic and they also all of the mechanics share second level supervision which this court has also recognized as a factor i think in the by right number case and another case that we said in our brief that second level supervision is also a factor taken account of in the community interest community of interest analysis excuse me and they share the same direct supervision and the same second level supervision what's the second level supervision that would be just the second level of oversight by mr crossbows the general manager and then also mr klock who's the president as a second level guy or go to i'm not that i i don't know if there's anything in the record of octomom on the phone i'm not sure your honor there's no evidence that there's no evidence that actually cooperates that while he's technically the second level supervisor that he actually does anything with respect to saginaw why would you make that argument why just because it's not disputed and because the court has recognized i wasn't relevant if he never does anything with respect to second well your honor i don't know that there's no evidence in the record that at least that i can recall at this moment pointing out specific things that he's done in your honor but it's just undisputed that he does have the position in the company's hierarchy as the second level  supervisor providing kind of higher level oversight and this court in the pirate number case and another case that i cannot recall right now that said in our brief has looked at that as a factor there's also functional integration between the facilities and regular employee contact interchange mr snyder the service manager in the course of directly supervising all of the mechanics he signs and work coordinates their work dispatches their work etc through these electronic lo it's done adequately and accurately i don't know your we know he doesn't do that all right well you know he doesn't regularly go up there yes that's right so would it make a difference if he was right there and looking over the shoulder of the people in melbourne dale and not there and looking over their shoulder and sagen are in other words the sag an employee would work independently people do not understand your point your honor i mean i think that is a difference i don't know it's shown in the record i know that my opponent has not raised it to the court and it also would remain true that miss one that would be a difference in the supervision mr snyder like virtually all of the factual findings in this case that most of the parts that mr miller uses when he's doing his job they come to him from the not in jail facility and there's also reasons why equipment gets transferred from the melbourne dale facility to saginaw for example if a customer quest's type of equipment from saginaw that they don't have maybe they have it now and dale the equipment gets transferred there sometimes that equipment as well as with the parts it's sometimes it goes out to the customer mr miller also has regular phone contact not just with the supervisor with the supervisor it's even more regular i guess it's two to three times a day and then with his fellow mechanics based in melbourne dale he also has regular phone contact like if he has a question of how to get a certain job done he's having difficulty figuring out how to repair a particular type of machinery the evidence is and undisputed again finding is that he will call his colleagues in melbourne dell to ask for suggestions and advice of how to get the job done i also the mechanics to know until they cover for mr miller whenever he's unavailable so if he's sick or are on leave were a few instances in the record where mr miller and not endemic can exactly works together on the same job shoulder to shoulder so to speak during his training period the week he spent at the facility in the window for a couple of those days he went out actually went out and worked on customer jobs in the field written up until mechanic side by side and then on on top of that or after that subsequent to the training period there were two specific examples in the is really important here and there's multiple levels to it first in terms of the board's factual findings it's substantially evidence and the law is clear that it doesn't matter if there may be another reasonable interpretation or reading of the evidence that could support a different view so long as the board's view is supported by substantial evidence then the factual findings stand here again you've got another level on that because you're i guess  bothering me a little bit i'm not sure it would rise to the level of really being able to say that substantial evidence doesn't support the board but at the hearing one of the  ch people and i can't remember which one it was but he was asked specifically with regard to the saginaw facility how he would characterize it and he said i would first and foremost classify it as a rental facility then a sales facility and then a light repair facility and it doesn't seem to me that moment deal would be classified that way at all and clearly mel deal does the heavy repair stuff and that's really the bulk of what seemed to me to be going on in melbourne dale i could be wrong about that but but but certainly that kind of undermines the theory at least to me that there's really not much difference here between these facilities for purposes of doing the community of interest review well i don't understand your point your honor and i remember that testimony i don't think that's the case because it's true that mr miller this economic unit cannot do the heavy repair work but that is not the only type of repair work that is done in the shop and melvin dale and again so that it's true your honor that there are some there are some work done in the open dale in the shop that mr miller can't do but it is also true and in fact undisputed and made it by the company that ninety five percent of what mr miller does is identical to things that  mechanics do interview understanding their work in terms of everything in terms of in terms of both the few repairs because because two of the mechanics are based in melbourne dale they normally spend most of their days out in the field ok so then evidence was that mr miller does sales stuff he does rental stuff and he does the light repair stuff i understand your honor but the focus really isn't on the difference in the facility the focus is on a difference or in this case similarity in the skills and in the duties and it's it while it's true that there's some heavy repair work that's done in the window that cannot be done in sales and run well the set the same as a rental work but the  placed sales employee and that person is not trying to become a member of this collective bargaining that's right around that person doesn't do repair work correctly or that person just as sales and in fact there's a stipulation in the record that that person and in fact none i have to tell you i searched on westlaw for the definition of functional integration and unfortunately could not come up with a good definition it did find in the six or the case of  employees in two different locations are given their work by the same supervisor and when that work is essentially the same as far as the work that they actually do where there has not been a trust another words putting putting a verse and whatever that other case was closed aside is there another case that you would rely upon where they haven't found continuity of interest with the same supervisor exist it's a pretty good assumption take us in the other case thank you thank you counsel the case will be submitted being no further cases to be argued this morning major