good morning your honor you may proceed thank you so much may please the court the main issue in this case is whether tivo oist is a labor organization within the meaning of section twenty five dollars of the national labor relations act if so then because if the males admitted domination of it is an unlawful section eighty two dollars company union that congress prohibited so that employees could effectuate their statutory right to freely choose an independent representative an organization of any type is a labor organization if employees participate in it its purpose in part is to deal with the employer and to those dealings concerned working conditions the only question we have here is whether to avoid is dealt with t mo which is the nd criterion an organization with its own charter designed by t mobile sometime before january two thousand and fifteen as a vehicle for communications between cloisonne management it's comprised of management complaints about working conditions in person and in writing second to representing coworkers in leadership meetings well for sending to and discussing those complaints with management with the aim of improving employee working conditions and three after management's consideration reporting and management's decisions about the complaints as well as proposals back to their coworkers my understanding is that most of what is happening in these in the syringe man has to do with a not with wages hours and benefits it has to do with the customer relations aspects of the job and employees who are in that field or worse in their concerns about what's going on there were three percent you may go to benefits but not the thing you typically have in collective bargaining well as a matter of record the facts in the record the employee concerns that were presented were very significant choosing chloe's concern compensation paid time  wide margin most of what was being discussed did not concern wages and hours conditions of employment they concerned the work aspect the customer relations work aspect of the job was being discussed the union believes that that is not accurate there were hundreds of literally hundreds of complaints about working conditions that were presented to rooty boys so it is the case that there were a larger number but more importantly the issue of whether these were employees or not employee matters is not really before the court the board passed on that having footnote twenty one dollars the board said that it was not going to decide whether the organization dealt with working conditions it simply assumed that it did so if the issues that you think you need to be decided is whether it was working conditions then it needs to go back to the board because the board did not decide  employee matters it simply needs to be part of the organisation so if judge edwards assumption about the record work correctly that only a minuscule wages working conditions would then make a difference to your argument and if not then what is your best president president for that i don't believe that it would make a difference and i would say that the best president well well and also concerned employee individual employees presenting problems through the construct of an organization on behalf of their coworkers while what i'm trying to understand in this case is after congress passed the statute and we can look to the legislative history in terms of what type of activity by the employer it was congress was concerned with at that time tight of activity assuming judge edward just correct on the record that congress intended to capture in other words as i see the board president acknowledges that you know the suggestions box certainly it is permissible and even a sophisticated suggestion box procedure is permissible and i gather what you've been ian is arguing and what the board's president  suggested is that in passing a statute congress contemplated that certain types of activities were precisely the type of activities that would interfere with organization rights that is the employee's right to have an independent represent  collective bargaining was not the definition for what dealing is dealing with is as simple as employees in  some kind of organization making proposals management considering them and those concerning those proposals are great minces concerning working conditions and the organization only has to be partly sorry i'm sorry i didn't mean to interrupt you one of the board cases that were there and fact all the board cases seem to talk about circumstances where management members of the committee discuss proposals with employee members and have the power to reject any proposal that's what dealing is that's not the situation here you have individual and ploys to marrying their their concerns about we will debate what the concerns are over and the representatives simply pass this on there's no dealing between and the employees are not working as a group they're submitting would have but they have to submit and then those matters and then passed on to management no  presented no consensus reached in those meetings right and it is not necessary we don't know that or i'm just trying to understand because it's certainly far removed from what you'd normally expect in dealing with or in collect the bargain or where you have union representatives that's not normally how it operates is sounds more like a suggestion box where the the representatives are representatives but they simply receive information coming from that employees presented and these included issues related to employ compensations scheduling leaves the tools that they used these were actively discus time on soft it's pretty clear there's nothing to indicate that the management the folks who collected the information had the authority to cut a deal on behalf of the company they simply collected information and passed it on to management representatives the employees thereafter did not in any way deal with bargain with the scuffs with those who could make the final decision on what was coming to them right in other words they were represented who collected information and then passed it on to management people who would then go through and decide what to do with that is not what was going on in part but if you look at t of the meetings after they occurred you'll see that in those meetings the managing representatives agreed to suggestions that were present being presented by the timorese representative women agreed to well for example and one and one national meeting there was on the table a discussion about whether or not include training on a particular issue was adequate the  representative said no this employee training is not adequate the language needs to be changed here and there and management said ok we will change this language that is simply one example now it is the case that in many instances the people the management people sitting and the meetings did go back and consult with  other management people before responding but that too constitutes dealing because all you really need is management consideration i have an employee suggestion or  agree if you had a situation with the arrangement was that groups of managers and groups of employees would routinely get together and employees would make proposals and the manager sitting there had the authority  to cut deals yeah then you're talking about what the act intends to cover that isn't my understanding of what was going on and the other the other thing i want to ask you about the board is old a lot of deference here they're reading the record and making a determination when they go wrong it isn't whether we might reach a different judgment is where did they go wrong and what precedents are they flying against it's now they went wrong in a number of ways but a very major one is this notion that there has to be group action on the in part of being employed members of the organization there is no such requirement in fact as recently as two thousand employee group as to what to submit to the company and then those employees who represented the rest of the employees and then sews proposals to the company right that's what you're saying i'm not saying that  thought you said that was a case you were just referring to which i agree is a must be much more suspect case but that's not what's going on here well the thing that i disagree with is the notion that employer members of the organization does not get into in nearly all of the cases that the union relies on what communication is going on between the employee members the focus instead is on what is the communication between ploys and management tried to draw the line unless the line is not clear then why wouldn't we defer to the board why wouldn't we be obligated to defer to the board and i thought your argument in part was that  and the cases you cited i read are cases where they don't go quite as deep as judge edwards questions suggest and that's why i'm trying to draw understand the line that you're drawn as to how you know a conscientious employer gets information about what is employees or her employees are concerned about and has a chance to respond to them and if the employees don't like the response or are there is no response  then the employees can certainly decide they want an independent rep and a lot of your argument seem to be that even the sort of glorified suggestion comes to close where the employee raises a complaint about working conditions leave those types of things cardboard boxes don't meet face to face with other cardboard boxes and say tell me what your problems are and these steve boyce representatives were doing that they were then going into meetings with management where some of the complaints and suggestions that their coworkers it brought to them were the topic of discussion when management and management responded sometimes accepting and sometimes proposal and decided how it wanted to respond and i think you agree with all that and the record shows that until the board comes along and says look  pose the wrong question here is how we have to look at this and in reply you basically repeat what you said in your opening brief and the little like two ships passing in the night in that regard misrepresented were misconstrued the record is that correct that's correct we think that the court should reverse the important thing from the union's point of view to remember here is that the the board in addition to erecting this just false notion that representatives interacting with their co workers to collect ideas and pain points and then going into meetings with management to talk about so in one of the cases on which you rely heavily this dylan stores yes wives what the board said here are consistent with that person the board here treated the representatives as individual employees  and in dillon the board is those that employees were individual but just like being the tea party representatives here they were acting in a representative capacity and they were presenting issues that were of collective importance to the employees that is exactly what he wants representatives here were doing they were called representatives for a reason they represent they presented collective concerns and in that sense board made very detail well findings on all aspects of the cheapest program and came to the conclusion it wasn't dealing with end the safe havens and the question is well my here did not account for earlier board decisions that seem inconsistent with this approach that's what she says the errors i'll give you just two examples under dealing with so in suggestions that the employees made here were very similar to the ones in deal in stores and the board found dealing with but again there was no evidence of any deliberation and the general i don't know yet the board doesn't discuss either one of these cases that report she said that's the legal error and you know our case law says that agencies have to they can depart from earlier standard for dealing get lower then collective bargaining to have a collective bargaining agreement but allowing room for some cooperation and there being certain attributes like advancing collective proposals are there's one of the board's factual findings i think either but her point is that the deliberation requirement that's inconsistent with other poor decisions that i don't i don't think it's inconsistent  but they were they were concerns that were collective but but there's no evidence that there was any the liberation of among the employees before they submitted their concerns and the board here said that's why the absence of that is why there's no well it was there in my view the board gave a lot of reasons why there was no dealing i think in explaining that there was no deliberation and i think the board was explaining on the suggestion box part of it which i think we always resisted or the representatives didn't have a right to modify or choose which to submit mysteriously to management through the share point program but the board also said correctly and consistent with precedent li times where there's not preach a liberation to make it a group proposal but an employee committee could still choose to advance a group proposal and it may count but that's not what happened here and you look at the board's factual find it looked at both the pain point aspect as we call it which is a unilateral or a process by which the exploit committee members have little discretion but the pass on is that yes if they get to management you know it's one way and then if management comes up with a solution to pounce and looked at the meeting and at the employer the representatives attend which is consistent with brainstorming information gathering it to answer your question i don't think what the court did  inconsistent with precedent like the one in reno those cases do involve group proposals and the board in no i don't know but there's a difference between yes of course they have all they have all proposals of common interest to the employees but you keep saying that but the board here said there was no dealing with because there wasn't the operation that's different let me just give you one other example because our time limited here  you mentioned that the board said this is a suggestion box the union points out that again wrong until and stores fear that if if there are functions other than  suggestion box you could still qualify it as dealing with it as dealing with that that's what dylan says and here that's what the records show the true they related complaints which if that's all they have done it would have been and explained why the pain point processed was a permitted suggestion box and that other aspects like the meetings were permitted brainstorming or information gathering and one reason for that is that where employees at times did present their individual like there was a meeting where they discussed a new insurance policy product and they gave their views on training for that but it didn't rise to the level of making collective proposals or the other kinds of i can forth that the board has found demonstrated a pattern and practice of dealing not just isolate it instances and so in short there's more than one safe harbor  than one there's nothing barring that from having a suggestion box answer brainstorm exhibit here so i suggest one of the questions here that is was did the record not show a pattern and practice it's not a question of an isolated incident that's right that the pleasure of trying to understand here and our court has been very strict about requiring the agency to explain why president cited to it davidson hotel is our most recent ringback so far as i know case to that effect and in that case the argument was made well the board decision the way it framed it you can see it wasn't inconsistent with its prior president we said no the board has to explain party ardan these other places the board of decided doesn't that approach in principle apply here even if you're ultimately correct that the board's decision is consistent doesn't the board have to tell us that well and union has raised possible questions based on this rep heard no i understand your honor if my understanding of david's and i know and i know you'll correct me if i'm wrong is that it's not a blanket rule that an agency must separately sting wish every single case cited to him no matter how many but it must address cases that are inconsistent and here dylan and reno are not inconsistent rather they're consistent with the principles that were to play out and distinguishing the union's cases and explaining why this isn't dealing and that includes cases where it's clear the record shows in the board found the employ a committee group emphasised collective proposals that's dealing we don't have that here that's that's one distinction and i think overall the board's decision is supported by record evidence and just to stick with precedent it went through each aspect of it to us program and explain why it was either committed suggestion box or permissible brainstorming information gathering the presentation of employees individual views and that there is no evidence or case for saying that you have to say in the cumulative to safe harbors amount to a violation so at the end of the day my opponent has a program the evidence press not to sponsor it doesn't part of the board's finding work powell finding  dealing based on subtle precedent in the facts here and so unless you're owners are further questions i say well let me ask you that is your understanding of what we meant well if you can if the court can read the president agencies position on precedent is discernible and expressed that is the board setting cases involving group proposals don't compel a finding of dealing here where we lack a court into the record evidence or at least the board recently some found i do think that's reasonable analysis by the board and it shows its findings are consistent with precedent and supported by substantial evidence and so if the court reads those cases on which  argued to the board and there is no reference in the board's decision to group proposals or priests of mission discussion by employe then isn't that a case for you then for the board to provide further explanation i would acknowledge if for example the board said dealing generally involves proposals advanced collectively and we don't have that here and there are cases specifically saying no no no it's not that employees advance an individual proposal and the employer responds then there may be an issue for the board or premium there but i don't think that's the situation  i think the cases cited by the board and my opponent both support that dealing tends to involve collective proposal or something else it's a bilateral mechanism more than what was shown here so i think at the end of the  proposals in the sense that employees have to discuss among themselves before presenting them is simply nowhere established in any board president board has never said that it has to be group d instead what you see in the board cases is in some situations there is that sort of deliberation among employees but in others there is not both models exist side by side one is not to the exclusion of the other secondly the notion that there has to be back and forth between the employee group in management is also not a requirement that would be bargaining it is enough if management considers either really considers or boxes the employee the t v or its representatives in a representative capacity gathered their coworkers thoughts and ideas presented them to management in multiple different forums and management considered and responded that's the real writ you know i you know i hear you i understand what you're saying but you pretty much your view in my view pretty much a lemonades the notion of brainstorming and suggestion box which i think would make no sense given the way companies operate it makes perfectly good sense for companies want to understand how ploys are reacting to some that works on of stances in dupont you say there's nothing in the board case law that supports what they're saying here i mean dupont's one of the cases you're talking about there is that each ploy has management representatives who are full participating members these representatives interact with employee committee members under the rules of consensus decision making under this style of operation the management members of the committee discuss proposal with union employee members and have the power to reject any proposals in circumstances where management members of the committee discuss proposals with employee members and have the power to reject any proposal there is dealing that's not what's going on here and that that's the overarching principle in all the boards cases it is true that maybe our rule is the board has to go through every single case of they've decided and square it that's not my understanding of deference here especially when you have this overarching principle which says you have to have a situation in which employee representatives  presenting what the employees are proposing and they are dealing with managers who can address what they are proposing here we had a situation where the members were simply collecting information screen it for grandma that's all and passing it on to management they had no authority you can cite an example or two was said well in one situation a manager heard a complaint about x and fixed it  i just don't i think the board can say that's minuscule that's not the point the overall program was not designed to do that the overall program was designed to collect express concern by individual employees not the c i would like to respond to a couple of points that you made if i might appear to they to the point about the union's argument would eliminate brainstorming and suggestion box i'd disagree with that  these were not brainstorming sessions that these device representatives were going to they were asked in advance of the meetings to gather their employee their coworkers thoughts on specific copies and come ready to talk about solutions it was not a situation where you have a bunch of people get together and in the meeting try to generate ideas that i do you know or at least raise representatives could consideration can be met by a manager receiving the complaint or the proposal and conferring with another manager that's consideration st let me talk about dylan and dylan the each grocery store had its own associates committee and the members of that associates committee were asked to get would take them under consideration in fact the news this is what happened here is that what happened here also yes that is what happened here and i'm sorry go ahead you know go ahead miniscule that it happened well in every national meeting the national meetings were held monthly in every national meeting there were there were discussions there were focus groups in which the objective was to flesh out solutions to employee problems that happened monthly there were a subset of discussions at the regional level levels that happens twice a month and at the local level that happened once a month i mean what and what an employee council and employing members of that council made proposals and presented grievances and individually did so in  meetings and management responded and took some of them under consideration so taking it under consideration according to dylan and electr maybe i don't understand it but i thought there was a difference between the requirement that he deliberate actually sit down to discuss and and a collective proposal i thought collected and that it was a concern that many employees share about collective ah ok collective proposals and what what what i'm hoping you can help me understand is is that  liberation because that's your point right yan and dylan and dylan to quote the boy in their conclusion who board focused on whether the poles were in advance collectively on a representational basis that's now that's what i quoted earlier when i was questioning telcel for the titian there and i should clarify that in davidson we didn't say you have to distinguish every case if you ever decided you do have to sp exploring with counsel for the board so they didn't cite obviously the e u p m c but they did cite dylan and reno right and the four didn't say anything about those cases and while it may well be true that this collective aspect is critical at least in stores were labor organizations under the section that's all we're trying to understand here so do you have an answer to judge tate also questioned your best case on what collective means i believe that is a perfect expression of it the reason that it was those interest by the employees were regarded as collectively present it is because it was representatives presenting those  grievances and proposals on behalf of their absent coworkers that is exactly what we had here and what to buy and in the board says here council when you have a situation in which the person who's the quote unquote alleged representative is merely collecting and only eliminating things out of redundant and correcting graham and then simply passes it on that doesn't fit what they're talking about when they're talking about representational and the board's factual finding absolutely ok that's a hold of so if you're in a really tough stand in a review there well we complain about two things their application of the law and they're what i think i think what we're really talking about is you disagree with their findings because i think these cases are squared up with prior cases and that's what i've been trying to understand i think you just disagree with their findings of fact we did and are breaking on a substantial let me just see if i can is your argument that the board failed to consider say till him dependent on your argument that the board's findings are wrong in other words does you understand my question in other words you know it's let me put it this way suppose we decided that the board's findings about what happened were acceptable that if they didn't meet our standards for reversing the board fact one would you then agree that there's no problem in the board not distinguishing it's prior cases because those cases are by definition different to me i do your ear asking if we accept the board's fact finding looking at people waste the timorese organization as a whole and if all these people were doing is just collecting and passing the mark then that would fit the employee screening committee no precedent where you've got all of those things going on and the part found that there was no dealing there isn't your point then your point is that taking the board's findings as they are without regard to whether