this time of year meyer too good morning judges i'm dan rosenthal i represent my or tool your honors last month the labor board acknowledged that it had gone off the rails in protected concerted cases that case is all state maintenance three sixty seven and l r b number sixty eight january eleventh two thousand and nineteen the board in all states said it quote articulated the standard more than three decades ago in the miers industry's cases but even though the miers decisions have never been overruled subsequent decisions according to the court are the board have deviated from miers and have blurred the distinction between protected group action and unprotected individual action the board said our decision today begins the process of restoring the miers standard and going back to the congressional intent to limit the protection afforded under the act one to concerted activity and two for the purpose of resources facility to complain about judge yes there was protected concerted activity we acknowledge on the night of may twenty fifth but not well when they came when they came together that would have been protected concerted activity in the abstract but judge the board has always taken the position in this case that the pivotal act was r generalists dina adams calling the police and all that's relevant here is what happened in dina adams office the next day to cause that to occur here's what occurred and here is what didn't occur one employee back came in and complained only about the go to guy ten minutes later another employee c ame in and complained only about the rivalry between day and night shifts then ten minutes later still can an elk a man and hears what happened and this  quoting canon l in your meeting with adams you never complained to or about the gotos stuff true no i never raised it canon al admits he was an interested in what the other two pov and bauer had to say his testimony i wasn't personally trying to eavesdrop or listen in so all i heard was talking and i listened to nothing in particular cannon at all expressed to dean adams his own personal gripes and nothing else he griped about a claimed physical assault by mcguire and a claimed racial slur by mcgwire do you have a complaint previously or did he argue the previous day with one of the supervisors about the attitude that they were taking towards the night shift yes judge and dean adams knew nothing about that and he raised i didn't know that she didn't know about that from any of the three she did not know about that from any of the three there is no evidence in the record to suggest that she did and here statements and that conduct that followed the meaning can an al correct hananel admitted quote i only talked about myself that couldn't be further from concerted action intended to induce group action right now are you saying that the authorities that talk about activities which are a logical outgrowth of the concerted action are no longer a good law judge the arising that of authority is our completely inconsistent with miers and with this courts of ontario knife decision a seminal decision in this which was followed in miers one and two and which the board in the new all state maintenance case has said is and always should be the law and what are what is the status of atlantic ste that the other side relies on that judge we don't get properly to atlantic steel if there was no protected concerted activity if there was not concerted activity you've already talked about conserving activity conserve activity that previous day and also the fact that you've accepted concerted activity when they went to the h r office together to file complaints at that point you're saying that activity fragmented after  that but but what you are there is some concert activity from which there could be an outgrowth judge there could only be an outgrowth if dina adams who is the actor who called the police remember general coun in an objection said the unlawful conduct is calling the police that could only arise logically album of the protected concerted activity if she knew about it and acted on it and the evidence is she didn't if those cases were valid then ontario knife which is still a good law and controlling in this circuit would not be good law in ontario knife two employees complained about having to machete work and they said they weren't going to do it anymore and their boss said if the work schedule says you're an excuse my language you're going to kiss my ass you will do that one of them walked out and  board said as it did here that that was had a logical outgrowth and this court in ontario knife said no it's not that was not protected concerted activity that case is the flipside of this coin and is indistinguishable in essence from this case so judge we've got canon now and adam's going back and forth about two gripes personal gripes  only she says i'm going to count to three she says one he says two three he smirks voices are raised she says leave my office and the premises he refuses she calls the receptionist to call the police caught what prompted the call to the police and this is an hour about it in the record judges was cannon ellsworth fusil to a bay her lawful order to leave board member and emanuel described this as serious  insubordination the board not just not to leave her office he was standing outside the office and he was standing in the in the doorway is the young robotic abbot and she said leave my office she's she said i'm going to have to call the police who told him to leave the premises yes or she called the police because he failed to leave premises he went to the lobby and waited downstairs right yet in leave the premises that meyer tool called the police and they discharged hananel for his refusal to leave the office and for no other reason first of all when once she says she's going to release surely it's proper for him to stay on the premises act calling the police cannot as a matter of law be an unfair labor practice according to the d c circuit and then are pending ten doctor and that's the venetian and that's your point here was that she ok so you're not making you're not you're not arguing that the fact that he stayed on the premises was a warranted any police action just the just his off and just being in the office is refusal to leave the office he did leave the  office on the count of three step stepped out of the office judge he was still standing in her door way where she could see him and none of that matters because her actions were not based on conceivably anything protected and concerted they were based on his personal gripe that he was only making for himself and that can't be distinguished your honour's from this court's decision in ontario knife  have please the court my name is rebecca johnston and i represent the national labor relations board jumping first of the question of whether mr cannon now with engaged in protective concerted activity on may twenty six my opposing counsel focuses on cannonballs testimony at hearing to big exclusion of all the record evidence as this court has said whether an employee is engaged in protected concerted activity is a factual question and we examine the totality of the circumstances which said human resources but she's also quoting her as to what happened and who said what back and forth well the ministry of law judge did not credit her for what happened in the office he credited mr l and some of the other employees who testified and she did in fact say that she thought that the three were in her office filing complaints that day from her perspective the employer is hard pressed to argue but did you ever  know your honor but just the fact that he says he was only talking about himself doesn't mean that the activity was not concerted in fact mr p the concerted activity was going into human resources to file a complaint about what happened at the meeting the night before he and his coworkers had discussed after the meeting that they didn't like the way management reacted when they raise concerns at that meeting and paf even told him if you're not going to raise this issue i'm going to raise that for you but she was calling the police because they did that she was calling the police because of conduct intertwined with his protected concerted activity and that's why this isn't as antics steelcase atlantic still allows an employee some leeway for engaging in impulsive conduct while engaging in protected concerted activity so he was in her office filing a complaint she was dismissive and he reacted in a way that was the complaint that he was there are funny he has written complaint he was talking about the go to guy and also the reaction of management when he raised issues at the meeting the night before management got in his face and accused him of not doing his job did not provide him with any proof and when he got into his adam's office that day he raised those complaints and he talked about who holds the vice president accountable he and paf talked about this incident where this man was in his face although disagreed that it was a physical assault they did discuss hoffa's readily participating in mr cannon relaying what happened the night before and his complaint and moreover before mr cannon al came in the office that day mr pop had raised concerns about how the night shift was treated and specifically how mr cannon l was treated although mr potts thought they were by they were acting biased based on what shift employees worked mr kendall had a different take he thought they were biased based on racial issues but the board's definition of concerted activity is not so narrow that they can't diverged and a little bit based on their learned experience my opposing counsel mentions this new allstate decision i don't believe they filed a twenty eight jail otter and the reason we didn't is because decision does not affect the holding in this case that decision is fairly narrow and over rules president that says just because someone is in a group and complaining they're automatically acting can start at the the board here to not rely on our president and in fact i looked at the totality of the circumstances and i'll sta just simply doesn't apply to the facts of this case opposing counsel also talks about the nor pennington doctrine and that a call to the police can never be an unfair labor practice that is not the law under section eighty one an employer violates the act when they interfere with restrain or coerce employees in their exercise of section seven rights i can think of something much more and threatening to call the police are calling the police and to the extent they rely on this nor pennington doctrine they did not raise this before the board so the board to not have an opportunity to consider it and this court therefore la judges the jay found that adams then told canon l to leave our office heat and he said he took a step back into the hallway but was still visible from inside the office you was visible from inside the office and that doesn't mean he was in the office he was outside the office which is in fact where he was he was on the threshold judge but again it doesn't matter because there was no protected concerted activity what that's the issue yes judge the counsel for the labor board told you what she wishes the record said not what it did say she said that he complained to adams about the go to stuff quote in your meeting with adams you never complained to her about the gotos stuff true no i never raised it he has admitted it and the record is never read the complaint no one thinks that she did at the time and that she made her pivotal call to the receptionist to think that bear on the question of whether he was engaged in concerted action to judge a candidate in the complaint it can dean adams called the police you can only look at what dean at adams was presented with and it's on were about a judge that she was presented with two very personal climbs look at the fact according to your view we can't look at the three complaints we can't look at the prior incident we can't compare the complaints to what happened the day before it's all to decide whether there's concerted action we have to somehow filter it through what was in her mind no judge you don't have to do that at all you have to look at his admitted conduct because that's all that is pertinent here and the court or the board in the new allstate case said for employees to enjoy the protection of the act two elements must be satisfied the activity must be concerted and it must be engaged in for the purposes of mutual aid or protection and all he did in her office all she knew was that he made two very personal gripes neither of which call for mutual aid or protection judges just as an all state  where the board said we reaffirm the standards articulated in meyer's one and two two under which individual griping does not qualify as concerted activity because it's carried out in the presence of other employees judge judges consistent with ontario knife consistent with the admitted facts in this record the unrebutted record our petition for review i respectfully submit must be granted and the board's decision