something done by the company's employees the election should never lost the right i'm sorry we did you argue that below that even if the company was responsible for  challenging the fact of the incident on the employees we going to some number when you reference the incident there where you're talking about the incident as in the company and look at the incident i did not see that argument here i believe it's exception to eighty of the source regardless of how the incident actually played out i mean obviously i'm just i'm just because you know i mean i'm sorry i'm sorry to sure test you with us when you're trying to get started but it's very important that sounds like a legal argument to me that i led to discussion once employees even if the company was the source of the upsetting information around election time nonetheless companies should be able to have a new election even when they are the ones that cause the problem that's a distinct legal argument i haven't seen well we would submit that the gist of the objection and as you know further explicate nor briefs to the board is if you're going to have to with the effect of this incident you know we repeatedly say incident the employees as a result of the dissemination incident you know and i think you have to persuade them as a matter of policy that somehow companies should be able to cause a disruptive incident and then when the election doesn't go the way they like it say ah that incident makes it invalid election you can imagine the adverse incentives perverse incentives that that would be would you so i would have expected you have an argument about that specific legal question and concerns of those incentives presented to the board well there's no question that the primary process of argument before the board is that there was in fact an actual threat made was that the prime or the explicit best well again the objection was cast broadly listen just a factual once it's not quite working for me on any legal argument maybe you have a different one you say your briefs to the board made this argument that when you say the just that doesn't quite work you have to put the board out if you know the words what we have done a fight to the board was that they were going to have to grapple with the effect of the of i'm looking on j seven hundred and eighty four and you're still you're talking about the incident records for your stock you talk about it's well established that threats directed at management representatives but of the case actually was the cause if found that there was no actual threat that there could be no valid objection and that's simply contrary to their presence in this court's precedent and manner care the board's president and q b rebuilder as it's clear that the focus is on the employees understanding of the that and not what the actual event may have been and that's the nature of dissemination sefton manor care the company wasn't the source of the distorted gossip that's that's true your honor but i think from the employees perspective here since they weren't witnesses to the event there's really no difference by the situation in manner here where again you're talking about dissemination of something that was not witnessed by the employees of question and here you have a situation where it's clear that the board is found and the board the minutes of page eight of its brief that employees understood based on this dissemination that there was a threat or at the very least that there may have been and the record is replete with testimony that that was in fact the understanding was right but if we accept the findings on the knife inside the companies the source of all yeah well let me just any case administrative or judicial that stands for the proposition that the company can create the concern and then use it to invalidate an election i do i don't but there are actually very few cases and all in this area the cases cited  here that there is a firm line with respect to employ the free choice the board says repeatedly that it doesn't matter what the sources you know that it's relevant to what the employees ultimate understanding is i certainly understand normal i mean the normal case would be one where union supporters are so if saying things and there's ambiguity about whether it's an illegitimate threat or religion it were legitimate advocacy and their use in this six part has to draw that line that it just seems very different from dealing with this question of what happens when when and if the company is the source which your honour's describing is the usual case you know which is why i would suggest that the facts of this case are highly unusual this is not a situation where the floodgates would be opened you know but simply you know given the board's broad policy there has to be something of a balance and the facts here quite narrow this would be a rd party case there would have to be a general atmosphere of fear of retribution would have to have you going to have this whole theory you have to find in time whether the company helped disseminate the story as well yes although typically when you're talking about you know party from that perspective it's with with and employer instigated and wrong plans to get incident he doesn't believe this to concern amongst the employees that's correct i'm not aware of any case it is highly unusual in the cases that the board had to go back to the eighty's for their cases only a couple wall the board repeatedly expresses you know its general principles bedrock principles you know to the medicare that there's a f would be in terms of in terms of course of conduct on the blog post you have a situation and we're you know teamster age or you're outside organizer you know has  me employee was not on my understanding from the record is that statements on the blog about what your concerned post stated about why a month or so or maybe even two months when the employee went on t the use of this low he's basically form open the gate saying you know have at it you know far as we're concerned this is sanctioned by the teamsters can ask on on the blog post right what's wrong with it it's it's an object if tass everyone agrees the test is subjective but why isn't it relevant in an ambiguous situation assessing what whether this is really a threat or not why isn't it relevant to consider whether it particular employees did or did not feel like writing yeah i'm sure it has some relevance your honor i mean i think there's always conceptually you know sort of in difficulty in terms of the glory of lines between you know what is objective in reasonable person standard and how one derives that but there really isn't any solid finding in terms of objectivity you know with respect to these blog posts what the board is doing here is basically findings really exclusively on the subject of reactions got thought they considered i thought she considered both and she says she starts off by saying lopez thought it was a threat but then he didn't robles thought it was funny it's after that's all subjective and she goes on to say she correctly defines the governing standard as an objective one and then she talks about a reasonable tendency to influence the outcome of statements lacks specificity they were merely derogatory and on the kind seems like she's looking at both and re so it's a close question your honor i mean i saw it her focus on the being reasonable and kind is really being derived more from the subjective reaction of those particular employees rather than the effect of a situation where you have a blog and you have people being you know paul and honk and rat you know which have specific you know that the company raised this argument before the board that if the threat never happened nonetheless the basis rumors and selves provided their own grounds to overturn the election rather the company was absolutely consistent and unwavering  its claims before the board in asserting that this threatening condom did actually happen it only then asserted that as an additional element of that jackson order further bolster that objection that that conduct that they say the incident they mean the incident of a threat actually happened for example at page seven hundred and seventy two dollars the company says this is in its brief in support of exceptions before the board the company says you need an organizer and this is where the company union organizer and agent placenta threatened cameron out with an eye on october nd so consistently its intentions before the board focused on amber premised on this threatening conduct it never raised the alternative argument before the board now brings to the court and therefore section twenty percent support from considering that in any event the argument is completely baseless if the company decided no case that stands for the general notion that an object in parity the one who lost the election in six to overturn the results can draw upon or rely upon conduct which it itself created or contributed to to then avoid a result of  plant the seed of false rumors among the electorate so that if it loses they have something to fall back on the company knows that this case is rare and it is rare because parties are s as to rely on their own conduct to try to overturn an election however if the court were to embrace the company's position i would submit that this might not be so rare anymore because parties now see hey we have a little insurance policy discussed in anonymous conduct and why it is one of the reasons why anonymous kind of should be given little weight and that's it the court says one of the reasons is that unscrupulous employers could encourage anonymous pro union incidents in order to give it grounds that doubt that later to reverse the election result if it loses so although it was in a different situation discussing anonymous conduct here it's not anonymous we know that given the credit credited evidence it was in fact the company that created and perpetuated these false rumors nonetheless the court there did recognize it as a general concern can i take you back to the knife incident yes itself so one aspect of the a l j just reasoning was that employees who testify for the union are deemed to be inherently more credible because they're testifying against their economic interest doesn't that seem like it's really loading the dice particularly with regard to in this case management who testifies to the other version of it sounds on the judge says oh well these people these people union side are testifying for the union and therefore they're more inappropriate or that suggests that that principle cannot be applied in the circumstance of employees who are you know union advocates or activists and you know the fact remains that these employees continue to rely on their employer for their livelihood and so by standing up and yet they've chosen to advocate very publicly within the reasonably made perceive that they may draw additional power from the employer by further countering the employer's interest by standing up in a hearing and testifying contrary to their employer's position who controls their paycheck preparation contradictions between management's witnesses a whole host of factors let's see about the blog posts i guess i would turn to those briefly the company the board recently found these anonymous online statements that over which being you had no control did not form a basis to overturn the election the company i would know has cited no case where statements in any way similar to the statements that appeared on this blog have been held sufficient to throw out an election and that's under any standard and the rd party standard are the party standard the company has not decided any case where statements that look like something like these enough to to overturn an election their statements really in large part were nothing more than general kind of insults name calling and mean comments and you don't overturn an election based on  over my time here either so i'm just one question on how on the subjective evidence point your marine argument in the brief was that the ale che did not consider subjective evidence seems to me wrong but we cue would you be disappointed to win your case on the ground that she did consider subjective evidence but only as relevant to the objective question of whether vs whether these comments directed fully measured amount to threats i would not be disappointed your it is our position that the judge did not actually rely on the testimony about the subjective reactions but it is none of us true that both the board and courts have at times said yeah it's an objective standard we're going to analyze it under the objective standard but then ha reference to testimony like a man or peer i believe so yes here they have made reference to evidence of employees subjective reactions and taking that into account was that that bolsters or confirms i guess the conclusion about the objective the objective conclusion and i thought the point of the objective test was that people are engaged and objective only on reasonable or harmful  calls were appropriately analyzed under the under the rd party standard the company's burden is extremely high in that it was required to prove that objectively objective with the status of the silent phone calls in which nothing was said and we don't even know who made them or if they had anything to do with the election that objectively this conduct was so aggravated as to create a general atmosphere of fear in the prize all rendering their free election impossible and again just admit that the company has not come close to meeting that  minutes just very briefly as the court says in manner here the board has drawn a firm line that the touchstone of an election is indicating employee free choice elections ultimately about the employees the parties although curiously in the words rules you know parties such as unaligned employees actually don't have an ability to file objections to the election i just want to impress upon court how narrow and how unusual the facts of this case are and why it would not open the floodgates as the general counsel suggests to employers or unions benefiting from wrongful conduct  again the standard here is the rd party standard when one is talking about the dissemination of rumors and the rd party standard is extremely difficult to satisfy has been satisfied in this case because one is talking about whole market threats of violence directed by if you know either what's the threat of violence well mr placentas he is the employees and again the board does not dispute that is understood that mr placentia who had a minimum was a member of the union's organizing committee and potentially an agent of the union and threatened the primary spokesperson for the employer you know with respect to labor  issues and incident that so disturb the employees that it was widely disseminated again for the board finding up through the in time is actually on the dissemination i'm sorry this is the dissemination yes ok so you have you know dissemination of a threat of violence in a one vote election in a situation where a hearing was held you know with respect so at least there was a finding that the objection had