the transit connection verses national labor relations board and we'll just give the courtroom an opportunity to clear out before we get started on that whenever you're ready counsel may it please the court my name's tim's us and i represent the petitioner here transit connection inc d c i to the private transit company that operates buses on the island of martha's vineyard in massachusetts we're asking the court today to overturn the the board the n l r b that is their decision to certify the union as the exclusive bargaining representative because we assert here that the company substantially complied with the excelsior rule when they provided current and accurate home addresses for all employees prior to the first election during that first election a majority of eligible employees  have home addresses for some of the employees and had post office address is correct that is correct your own and it made a decision just to give out the residential addresses it had both so why wasn't it  reasonable to give out to give to the union all the addresses that it had for each of its employees it seems to me perfectly you not sure when the post office delivers when it doesn't deliver when you have to pick it up at the post office box so why isn't the n r at least reasonable to say when you have to address is given both well i understand that argument  honor but here i think it's important to put yourself in the company's shoes and in the in the people who are making these decisions you have to understand that the personnel file the information that the company has with making this decision about which address to include is not complete it's not it's not neatly filed the way where you can say this person has this address this person lives here the only thing that they really have to go off of that is crystal clear and concrete is that the home address listed on each employee why is it any more concrete in crystal clear than the post office box where the post office post office box your honor is something that the company does not use on a regular basis so in that as a matter whether the company uses it the question is you're supposed to give the union information so that the union will be able to contact the employee whether it decides to knock on the front door or send a mail and that's the union's decision that's not the company's decision i understand that argument your honor but you have to understand again the situation that we're dealing with on the vineyard is not your typical employee employer situation a lot of these employees are seasonal in nature they have several addresses some of them live out of state seems to me that would be even more reason to give the addresses that you have yes some of the addresses may be unreliable at the union figure but the point that we're trying to make here your honor is that the addresses on the driver's license which were is a is a clear requirement of the job are the only ones we know to be true and accurate if i thought the evidence said that the company had in its files mailing addresses for about sixty to seventy percent of the drivers the record  record says and also that the reason only the residential addresses were given once to be consistent across all employees i think that's partially a partial explanation for why it was done that way but ultimately those addresses were chosen and not the that many others that we have in our files maybe email addresses out of state addresses p o box is that we don't use them in these could be five ten years out of date we don't know their current if we had given the inaccurate p o box and that it get returned we would be here as well so we were in a lose lose situation it seems like and it could have been resolved by simply putting in the n l r b notice something that says please provide an address that will allow the union to mail things to employees if you look at the n l r b notice it's completely and they gave us it just says provide the name in it and address of all employees we did that clear and in a way that was reasonable and that would allow the union to talk with any one of these folks so i understand this this concern that the board has about  not providing some of the p o box is in there but the fact of the matter is there's a reason why we never use those there's a reason why we don't require employers to provide a mailing address it's because the system the mail system on the island is quirky it's not reliable and i don't think there's anybody who's standing he you never mail anything to employees anyway so he don't use the addresses everything is done by hand that's correct your honor and that's exactly why i say you know no so it seems to me that the prudent thing to do would be to provide all the information you had he if you're not accustomed to mailing either post office box or to residential addresses you just give everything you have but again you have to understand what we're dealing with it's not we don't have a clear database of all employees p o box we have employment applications from ten years ago that may have appeal box there's no knowing whether that's accurate and if you say here's everything we have guys good luck try to find them if one of the three addresses that w provide is inaccurate we're going to be here again and i'm just saying that it's a very difficult rule that follow if you don't know what the rule actually requires and to say just you know open up your books give them everything you've got why not e mail addresses why not phone numbers why not out of state addresses if you get that that's not really the case here because here the company knew that if you mail it to a residential address in this particular place it may not reach the person and yet at the same time the company's arguing that it was arbitrary and capricious for the hearing officer to conclude that the company should have known and in other words are saying that the you're saying that the union should have known but then you're saying it was capricious for the hearing also to conclude that the company should have known about the problem with the residential addresses so i think the testimony at the board hearing below is that the general manager of the company headed a general understanding that a lot of people use p o boxes on the island he did not testify that you know nobody could receive mail at their home address that that's not the very least you knew there was a problem with providing only residential addresses right he did not know that that would be a problem now because the the rule is that we have to provide current and accurate addresses for all employees and he in fact did that in this case your honor i mean to a lot and i'll just quickly cite to some of the discuss some of the cases that the board has decided on  this issue and they all deal with quote unquote in accurate address situations ones in which the company instead of saying john smith was that one two three main street lives that three to one main street clerical  providing addresses that are not current or up to date that is not the situation here none of the cases that have been decided by the board before or any of the circuit courts have have dealt with this situation where you have a unreliable mail system and as a result of that the company chooses if that's the case if if if as you construe that none of the cases have dealt with this where you have an unreliable mail system et view why is it why is it arbitrary and capricious in an instance of first impression for as you've described it i guess for the board to have decided the way that it did it is arbitrary and capricious to decide as they did here because the company fully complied with the spirit and the letter of the law there is no requirement anywhere that i'm aware of that says you have to have to provide mailing addresses to the employees that's not necessarily the purpose of the excelsior rule the purpose of the excelsior rule as discussed in that case in  subsequent cases such as right care is to make face to face is to allow the union to make face to face appeals with the eligible employees what happens if there were two hundred fifty bus drivers union they certainly could do that if they wanted to pass a law in realistic that they should have the flexibility shouldn't they to mail literature to people to come to a meeting or this is why you should vote for the union that would be a very reasonable requirement your honor if the if the animal or b had simply made it clear it doesn't then you think that's a reasonable it's implicit that the very least that the union is going to be mailing literature to people and not necessarily visiting every home will hear your honor they didn't they didn't mail it anything until twenty days after they were provided with the with the information i they also had all the other information in their records on the up from the authorization cards and from previous elections that these employees may have used a different address to be contacted through the mail and that i think was a reasonable thing for the company to assume that the that the union would be able to do in these circumstances thank you thank you arbitrary and what the board acted an arbitrary and capricious manner so it's a slightly higher standard but even so we're still quite confident that we meet that standard  when when the board introduced the excelsior rule in one thousand nine hundred sixty six what it said is the purpose of this rule is to ensure that all employees are fully informed so that they can freely decide how to vote in representation elections and the board has overseen countless elections since then and has had many times if the opportunity reaffirm that in order for that to work in order for employees to be fully informed before they vote the employer has to provide complete and accurate address information for those employees and nobody in those fifty years since the excelsior rule has ever questioned that at a minimum a complete an narrow the existing rule and limit the ways in which unions can communicate with employees if you consider my  put yourself in the company's shoes well let's put ourselves in the union shoes for a second the union is on the mainland martha's vineyard is an island i'm not sure what the how long it takes to get  to to the island from where the units located but in cape cod traffic i can assume it's pretty long the union representative can't be on martha's vineyard knocking on doors trying to see if people are home or anything like that all the time as judge bartol mentioned we have a small a smallish unit here of about i think overall of sixty employees in certain cases the units are much bigger those are just not realistic expectations for a union to find every last employee and knock on their doors and that's why the board since the very beginning has considered that the union should be allowed to reach out to employees not only in person but also by mail in fact if you go back to excelsior that very first case in one hundred sixty six the board the board invited briefs ahead of time because it knew there was going to possibly create an important new rule one of the suggestions made by a group of employers i believe was why don't you require the employer to give the excelsior list to a mailing service and that way the idea was the employees will be protected from harassment by the unions and so on and so forth and the board said no we don't think that the union should be limited to just relying on the mail in order to communicate with employees it didn't say no we want the in the union to absolutely communicate with them face to face and just said we think they should be allowed to rely on the mails but they also should be able to reach out to people directly because what you can communicate is different whether it's face to face or talking to somebody or whether you send them a pamphlet a butcher or something that they can read at home in the calm of their own house after that you know work and inform themselves without having somebody talking at them you know about things they don't necessarily understand and so that really the the crux of the issue here i'd like to also address something that mr jackson said with his  that the employer only provided a residential address because those were the only ones known to be accurate there is nowhere in the record that is mentioned that this was that mr morris made that decision based on a concern about the accuracy of the mailing address what the record says is that mr morris knowing that in order to send a piece of mail in martha's vineyard you have to provide appeal box consciously decided not to provide those pill boxes and instead provide what he called a consistent list of just residential addresses so there was no concern about whether the pill boxes might be accurate or the fact that he didn't know whether they worked or not  another point i'd like to make quickly is that the the the notice of the election that mr dawson claimed was ambiguous again it's going back to this idea that just saying address without qualifying home or residential is ambiguous there is a common parlance for that a common understanding for that term in common parlance and that is both where you will find somebody and where you will be able to send him a piece of mail or her a piece of mail what is happening here is that we have and we understand this were not the board did not find that there was any malicious intent on tcas behalf but what do we do have here is a situation we have an employer essentially arguing that they live because they live in a zone that's not quite like everywhere else or most other places where you have this quirky mailing system and these two difference types of addresses then that exceptions should somehow swallow the rule that under excel sure an address is both a residential and a mailing address and that you can't just do that especially not overturn fifty years of precedent that has you know that has been reaffirmed time and time again i'd like to just point out as we've said in our brief as well that the issue here again is not that the employer did not have the mailing address or anything like that all of that information was available in its valves yes it took a little bit of digging sure but certainly less than it would have taken for the union and that's why since the very beginning the board has placed the burden on the employer to  create the excelsior list because they typically they deal with employees every day and therefore they typically have all that information if not on one sheet ready to go at least available in their file so that they can compile it so if the company had not had the mailing address in its files then would it have been sufficient for them just to provide the residential addresses i don't i buy my was loath to say what the board would have ruled in a different set of circumstances but i will say that in the past and i believe it was in the the bronfman case the the employer provided a bunch of addresses that were inaccurate and then after the fact the board found a new set of addresses and the the employer found a new set of addresses in the board asked the employer to provide those addresses to the union and the employer refused and the board found that the employer had acted on lawfully by provide by refusing to provide these new accurate addresses it had in its files the board said however that it was not creating rule that the employer had to go on some investigation to uncover and verify whether the addresses it had were correct so although again i would not want to presume prejudge what the what the board might say based on that case i would think that if the if if he had provided all of the address information in his files and somehow all of the mailing addresses were wrong and it didn't know about it and it did have and yet many other more up to date information i don't think the board would i don't think would be here right now i don't know if you have any other questions about this case or if you'd like me to talk about the threat issue which frankly i don't think is worth discussing but i'm happy to answer any questions you'd like but your time and you can do what you'd like well i will just say that for the th issue i think it's quite obvious if as i'm sure you have watched that video that what was happening was very relaxed joking and banter between a bunch of good friends who know each other well and were able to talk about heavy stuff like union elections and not get all serious about it all the time and the employer when the employer found out about it never went to the authorities so i think one can infer that the employer didn't think it was much of a threat either i i would agree your honor i would say that when when your when your first reaction is to call your attorney to see if you can overturn a union election instead of calling the police because somebody threatened to kill somebody else i think you have a pretty good sense of you know how how realistic that person thinks the threat is and in this case clearly they're they're the employees reaction betrays the fact that they they knew this was just a joke and they thought that they could get some mileage out of it to prolong this process frankly it's been second election happened in the fall of two thousand and fifteen we're here at the beginning of twenty eighteen this is really just an attempt to drag on the process in the hopes that over time the union will be weekends and employees will lose interest and they will be easier to decertify in the future and so in the spirit of few brief points to rebut some of the board's arguments here to suggest that the first thing that the company did when they saw this video was to call their attorney to see if they could overturn the election for the purposes of prolonging the process i submit is a complete mischaracterization with all respect to my opposing counsel that is certainly not how it happened  what happened was we they they found the video and we just like you we saw the video they were laughing they were it seemed like they were joking but a threat is a threat and whether he could well mean a threat a threat is a threat meaning if it's actually a threat it's a threat but if it's a if words kill you are a joke and everybody there intended is a joke and they're taken as a joke and they're not a threat they're a gel i understand that argument but in this well it's not really an argument i mean isn't that the definition of what a threat is doesn't a threat have to actually have some at least either an intent to make a threat or to be understood not an intent but for the person receiving the so called threat to understand it as a threat i mean doesn't at least one of those things have to be present for it to be a threat by definition i don't know about you members of the panel but when i joke around with my friends i don't joke about killing them period and these guys may be blue collar workers and have a different sense of humor than i do but the  those words were going to kill him i think those carry a lot of weight whether it was said in that in jest or whether if it was actually they actually intended to kill let me ask you something do you have any reason to believe that the person who said the words intended to kill the person who heard the words and do you have any reason to believe that the person who heard the words understood that his life was in danger i don't know the speaker is i don't know his demeanor i don't know his background i don't know that he said it is really goes right was it unreasonable for the board to determine or you know the judge who was looking at it to determine that it wasn't a threat i think i think it was not reasonable for them to conclude that because you have to look at all the factors you look at the closest of the election here it was really one vote again i think really what it centers on is whether a reasonable person looking at this would have any reason to believe that either it was truly intended as a threat by the person who said it or it could reasonably and fairly and was reasonably and fairly understood as a threat by the person who heard it i think if to put yourself in mr edwards situation he was it appears on the fence about who is going to vote for the election and these guys were teasing him about it threatening to harm him to kill him if he didn't vote for the union you also have to look at the fact that the turnout in the second election was significantly lower than it was in the first election so something happened i don't know what but certainly this is a reasonable looking at what was said in this video it's reasonable to assume that other things happen we don't have surveillance footage that's not really the test right the test is whether that the board abused its discretion in deciding that this was not a threat and so for that we need to look at sort of need to break it down right and figure out how the board allegedly abused its discretion so can you point to something specific that shows that it was unreasonable and an abuse of discretion for the court to conclude that this was not a threat i think the argument here is that the standard in itself i think it's a five plaing standard is not it's not reasonable today you have the situation where you really have to go overboard and threaten people and threaten a lot of people next the day before the election then repeated an hour before the election just to maybe get the board's attention i don't think in today's day and age it's reasonable to require that level of seriousness i mean so you're here just to make sure i understand your problem is with the tast not with the specific facts in this case as to what actually may or may not have happened i think