with us you come i think fairly regularly so we appreciate it when you know these are the district judges have a forward without helping us do our work so they take this on as extra work and  we really couldn't carry the load without them so we appreciate you being here thank you very much the pleasure all right we're going to get under way the i think we have experience counsel so you are familiar with our lighting system so we'll begin with the case of advance masonry associates versus the l r b good morning your honour's good morning greg hearing for the petitioner i'd like to reserve three minutes we're here today because this is an under the undisputed at evidence in this record m s had a good relationship prior relationship with this union the undisputed evidence is that in fact the union representative testified it was a positive relationship yet that the board found that there was an because just because the the employer opposed it the evidence also showed that three of the foremen two of whom were involved in the actual terminations investigation were longtime union members and a of that they supported the union paid union dues the evidence also showed that the this employer hired mr acevedo twice knowing that he was a union supporter and a union member there was no evidence that showed that  violated the act in it in opposing in fact in case law says that you have the right to do so secondly the timing was very important to the board in his decisions as of course you've read and we can't dispute that the timing was cause it was three weeks but time alone isn't enough the case law says that you have to have shown that the employer had some prior resistance or past practice of opposing the union and again the evidence shows that other than saying we don't need a union and  i know that would be the end of me if i did i think but but picking up on what judge martin is saying so maybe you could focus us on why you think that the conclusions specifically why you think that the conclusions that were drawn by the board are not plausible exactly and that's the st is that it's not possible that there was an image by the employer just from the mere fact alone that they opposed the the union because the case law says you have the right to p what somebody testified to then you have the right to reverse a credibility determination what happened here is a l j credited mr acevedo's testimony that mr foley's the safety director in a meeting with just testified specifically in that regard that mr felice did not make any threats about wages he said that the wages it people of him and say exactly what it was because i wrote it down when he testified to he said that mr foley's never made threats to employees and said nothing about offering extra wages for employees who would be with or not with the union and again mistress of a doe i cross examine him under the jencks rule  twice deviated from his affidavit he admitted that he lied to a m s in the past about his physical injuries claimed he not been hired because of physical injuries he also admitted that he did not tell the truth on the morning of this this fall protection violation that he said was never been trained on the story taishan with all the paperwork except that i thought what he said and was i hadn't been trained on how to tie off the harness not that i hadn't been trained it on that i hadn't been trained in how to tie off  harness and then after show the orientation paperwork a minute that he did i thought he admitted that he had gone to the training but then he said but they didn't tell us how to tie off the harness maybe i'm understanding but that's that was my recollection of the evidence again in my i helped create the record my recollection is that he he testified that i did not get training or even out of time off with the harness or otherwise and then when he was shown the orientation which included acknowledged that he did in fact get that training and the th that be a credibility question for the judge i mean for the judge to decide and then have the judge having decided that unless there's some reason why it's not possible that when he said i didn't get trained but i meant any get trained on tying off the safety harness why would we be able to set aside that because it isn't inherently a reasonable because he's not credible  fact he waffled many times in the record mr philly's did not mr luna supported mr felice's statement by saying that he did not say by the wages go up or down with her with or without but most mr foley's denied that there's contemporaneous records that showed in fact he had been trained on it i understand it's a tough burden with credibility but you're the goya case does say that you all can determine it was inherently unreliable to resect of caution if i may move by there's there's no question that we have the authority to do that which my questions go to what is your best evidence of why we should do that or what is your best argument or the best argument on there being no animists because again this gets into whether there was animists or not this is one of the that supported the boars reasons for terminating it we also have multiple instances of of forcing this rule and the very best evidence in this case is that the the same day at the same time under the same circumstances union member doesn't really help your case and i'm not saying that he was or he wasn't but that is the position that you know the board reached and why is that not credible because why is it not you know why why isn't there substantial evidence to support that why isn't it possible it's not plausible because in fact if the if they import had a problem with the union but not without the union they would have kept mr stevenson who is known not to be a supporter of it but there is not as  says that when when an employer gets rid of a not employ a nonunion employees and a union employee simultaneously and there is reason to believe that the union employee was fired for the reason that he was associated with the union then the fact that a nonunion employer was for fired at the same time is viewed more as collateral damage and is not does not it does not demonstrate that the firing of the union employee was not related to the union i mean that's the case that we're up against so i need you to explain why that's not the case here if you want us to rely on mr stevenson's firing absolutely and remember the facts of this case a very important these are men working at elevated that if they fall they die and what the the board would have us have to do under the board's position was that you certainly had the right to take action against them but you couldn't take different action against them for the sole reason that one of them was a union member then you would take against other people who  behavior that might be helpful to me yes or yes your honor and this family there's two other compared towards that we put evidence on mr golf and mr leonardo they were targeted one before one after the  violation except didn't they both have multiple violations that that's interesting the board wrote that in order that true but that a mess did cite them for multiple they've cited them for the fall protection will and the board doesn't get to rewrite our business my name is valerie collins and i represent the national labor relations board because substantial evidence supports all of the board findings that are presently before the court the border respectfully request that both orders be enforced  going to begin with the eighty three dollars violations primarily because the eighty one dollars violations can be talked about in that framework but also because if the court finds that the board did that substantial evidence supports the board's finding on the discharge violations it need not reach the other seven challenges in the eighty five case i would like to start very quickly about the right line framework that the board utilizes in this court utilizes because i think that a lot of the company's arguments are based on a misunderstanding of how that framework works before this court the only issue is whether substantial evidence supports the board's findings that you know excuse me that union activity was a motivating factor before the board you have the right line kind of burden shifting test that the court is for one million or west where the general counsel has to establish that there's some type of connection and in order to establish a connection between protected activity and adverse employment action you can show one that there have there there is some activity to that the employer is aware of it in three is this concept of animists under and we're still talking about the general counsel's initial burden here in this can be shown by factors such as contemporaneous unfair labor practices timing pretextual reasons for the discharge and here we have all of that but but just before i jump into the facts after the general counsel meets that burden then the employer can rebut it and put on a case and say we would have done the exact same thing even if there was no protected animists but that's not the end of the case then the employer still has the opportunity to prove to mount their defense and say we would have done the exact same thing even if there was no animists here here the board has several grounds that they rely animus just to clarify something that counsel said the board absolutely did not rely on the company's anti union campaign page i believe it's three footnote eight or nine and excuse me the board actually explicitly states yes you can you can run an anti union campaign and we are not relying on that so that just in terms of a factual statement is incorrect but the board did rely upon our other violations of the act notably the section eight a one are who want their jobs back and this is an employer who doesn't want them back and i mean everyone has a has a stake and that's why it's so important that courts can and do defer to these credibility determination unless it's like just something outrageous or completely unreasonable and there's nothing unreasonable about of your colleague talks about mr golf and mr leonardo and that they are proper compared and that the board improperly relied upon the fact that there were multiple violations since their paperwork did not reflect that that's why they were fired i don't know if you might want to speak that is one hundred percent incorrect for golf and if you look at the company's exhibit thirty three the reason given for his discharge and i'm going to quote fired not tie it off and on telephone for leonardo this is company exhibit thirty four the reason given on the company's paperwork for his for his discharge was i'm going to quote again not using full protection and quote dismounting the scaffold stepping on the braces because they didn't have access to the letter to dismount and that's exhibit thirty four so the company absolute absolutely relied not just on the fall protection violation but also these other violations that are pretty serious the other comparer tours that the company submitted although you know those plainly just don't hold water these are all people who were disciplined multiple times for the exact same policy violation and that even the argument that over they were only disciplined and not fired for the st time is because general contractors witness the violation and not supervisors of the company that's contradicted by the record evidence if you look at compared her to me at the bryant not only did a supervisor see his fall protection violation their safety director was the one who that witnessed this violation he was not fired but even apparently i mean the no no tolerance rule about the fall protection didn't make a distinction between whether the contractor saw it o correct it didn't there's nothing about who you know who sees what in terms of enforcing the policy i'm going to move on to the section eighty five which is the rest of the challenges  i mentioned earlier if the court upholds the eighty three violations it need not reach the rest of the challenge voters and that's because the vote was was tied and all of the challenge voters voted in favor of representation and so any one of them you know the case could be over or put another way the company will have to show that the board abused its discretion in each and every one of these nine  clarify again the kind of legal framework and this case as well because i do think that there's a little confusion about what the board did they're straining daniel formula is just that it's a formula there's basters numbers you know if you work this many number of days in this time period then you are eligible to vote in the election the policy reason behind the formula is you're eligible because you have a reasonable expectation of recall so instead of the board country of the company's argument kind of inserting another prong or portion or expanding the formula it did nothing of the sort the board applied the formula and because these people met the formula they had a reasonable expectation of recall and their vote should be counted so i really have a chance to talk to people like you and your colleagues who i sorry that's a really have a chance to talk of people like you and your colleagues who who know this area a lot better than i do  imp whoever is challenging the vote has the burden of showing that that you know a potential voter is in el legible in here the board found that the company failed to make that showing it failed to to prove that these nine folks were ineligible to vote and i would like to highlight that when i get up start with there's two that there's two voters that actually in in findings and here we have we have two employees who testified in one said excuse me they both said yeah i was laid off i was no i did not voluntarily quit and i did not i was not fired for you know doing a doing a bad job that's a really really high burden when you have that type of credibility based determination so for those alone i mean you have this in person testimony that that shows that the company its burden but you also have all of the paperwork here the which is pretty over overwhelming in terms of how unreliable it is and the argument or the position that the board is somehow required to credit you know documentation that's essentially all over the place is kind of wild and the company has not even come close to showing that their credibility determinations that these folks were actually laid off and eligible to vote the company simply has not been able to meet that burden if the court has no further questions i see that i have more time but we would respectfully  which is in our brief with regard to the statement about mr foley's mr foley's did not have a blanket denial in fact mr foley's testified that he said that the market sets pay that's what his testimony  it wasn't that he didn't blanket deny that he didn't talk about wages when he was asked about wages he said that he said the market sets the pay and that's in the record with regard to mr bryant just briefly about that  violation and said we want this discipline for they would concur with them that the general contractor if a mess witnessed it each and every person was terminated fact those other three examples that was the case when a mess observed there were some instances where the general contractors or the st didn't want terminations recommended suspension in training and that's why they missed it so that's a distinction and i understand it that as an example of somebody who wasn't fired for a st violation but the and it wasn't written in the rule that had to be observed but that was every bit of evidence and record was and a direct observation by a mess everybody got fired including  acevedo mr stevenson and that's because of the liability and obviously the human toll that if these rules are not fall and in the last minute that i haven't like to point out this briefly and i do agree that if you don't agree with us on acevedo and stevens and you don't have to reach the other issues because in there are enough votes to tip the scale but those two are very important to this petitioner because the board also ordered their reinstatement back and so that is a very it's it's key for two reasons not only the standard annual issue and whether you count them or not but the actual eighty three violation and with regard to the others though being confident that you agree with us that there was a substantial evidence to support determination mr acevedo and mr stevenson a brief will point out that while smith and ranch both said that they were laid off it's not credible mr wrench acknowledged that there were forty mason still there the evidence was that we kept masons on this job until mid june of two thousand and sixteen mr smith said i was laid off with others because ny dead if i another that contemporaneous record says he was fired and that he was later rehired was something that the board pointed out as evidence well that's not true and fact he was fired because he was improperly put up a wall with four inch break and then later he was hired to do eight inch break break the testimony was he was