please the court your honors michael paterniti on behalf of petitioner and cross respondent adams and associates inc along with coke petitioner mcconnell jones lane near and murphy we request five minutes for a bottle adams an was issued by the m r b i'm going to address two of those issues specifically the issue as to whether the n l r b erroneous lee found that adams in associating violated section eighty three of the national labor relations act by not hiring five of the alleged discriminate sees and i'll address the second issue which is whether adams and associates inc was a perfectly clear successor the national labor relations board and thereby required to adopt the terms and conditions of the preceding collective bargaining agreement that was entered into between adams predecessor and the incumbent union or respectfully your honour's we believe that the n l r b erroneous lee issued asli decided both of those issues mr washington will be addressing the issues of the joint employer the other two issues we feel we're at or have been briefed fully so with respect to the first issue  we don't believe there is substantial evidence that adams elected not to hire the alleged discriminative on the basis of any desire by the company to avoid union recognition the board conclusion is essentially based on alleged after the fact statements made by roy adams the c e o of the company while the board in its order states that there are the reasons for the company's decisions not to hire the five alleged discriminative were patently pretextual that that conclusion as far as what was patently pretext was all driven by mr adams after the fact states if you take away mr adams after the fact statements that rebut the order provided by the board is that valerie weld the general counsel's witness for the n l r b she expressed lee stated she never received any order or direction from mr adams or from anybody that they are not to base hiring substantial evidence and we respectfully don't believe there is we believe that the board's decision is based on conjecture and speculation so you have the argument is just a factual and you're not saying that there's a law that says that post hiring an expression after the decision was ultimately made and again he was not part of the hiring considerations the key players in this all of the folks responsible for hiring they deny getting any sort of direction or pressure from mr adams whether or to hire folks and it is undisputed adams did hire the majority of the union rights folks it is undisputed that adams recognized the union it is undisputed that adams proceeded to bargain with the union the only thing on hat and making its decision is what mr adams said after afterwards where he conveyed frustration over the fact that the union was hired reichen fadal back again so it but you're not arguing that legally that can't be in temporally use you're just trying to that you know it but again these are statements made by somebody who is not involved in the hiring decisions who is not a key player a key actor in any of this again valerie weldon the one who who is who is the general counsel's key witness of this denies that was made tiffany poddy jim gag that kelly mcgillis every single person involved the hiring decision denies any sort of direction or direction mr adams provided those directions and orders or some pressure on the hiring people not to britain not to hire the union representatives there is no record evidence of that it also presupposes and speculates that the people who made the hiring decisions were expected to follow these orders or are instructions that were never given in the first place i'm so again i think the case that we believe is most o the board's referring to sanitation of a single document in which there was a reference made to the union post hiring and again in that particular instance we're talking about one record that was created after the decisions were made and it involved in this was after the employer had hired the majority of the union folks and after it had recognized the union and these in the record evidence reflects that this document union considerations played no role in at least from from this pod nice understanding in this weldon's consideration there is also a reference in that in the order as far as a patently pretext or reasons the fact that kell what this cousin is kamar provided were false and she wanted to do and introduce a new interview evaluation form reflecting the fact that she'd been provided dishonest information so she says she believed the first evaluation form was no longer relevant it was moot so she so she gets eliminated the document again that's that's her explanation it's not patently pretextual the reason the board frames it as being patently pretextual is because of mr adams after the fact statements and again there is no nexus between mr and what is the record reflect about the adams company's document retention policy did they eliminate other documents though this is a one time this this was one time and it's what was reflecting the record is that this hiring process was unfortunately not as pristine as one would like because normally they have a month in transition to hire people there sometime early opportunity conduct interviews provide offer letters due diligence the nest that's necessary that was particularly important this case because they were trying to comply with the not just you know your regular hiring laws your anti discrimination laws but also with respect to the service contract act the executive order that applied because they were a federal government contractor and it was important that they comply with all these issues that they had the appropriate documentation but this instance they had less than two weeks to do the entire process only a few days to do the interviews of the scores of the employees at the particular site so unfortunately the record keeping and the diligence with which the interviews were conducted was not what they had what they had hoped now you have a whole nother issue and i'm going to ask one question just factually about a separate mystere what reason other than animists could there have been for her being restricted access to her being restricted access yes it was they had a policy in place that former employees were not allowed to be present at the site was she a former employee of atoms of atoms but of horizons youth centers the predecessor so while she was not an employee of that adams the particular entity she was a former employee at that particular site that's why they made it that's why they made the initial instruction that they did ok so they applied a policy to a former employee that wasn't a former employee that's that's all the boards patently pretext findings all hang their hat on this notion that what mr adams said must have been in the minds of the people making the hiring decisions in the first place and i just want to make sure because i've talked to you i understand that the time period for getting all this done with a very trun d time period they had a federal government contractor so they had to make a lot of decisions very fast but exactly justification for the fact that records got a lemonade insanity that is that what that was in connection no not necessarily with respect to the with respect to the one record that was eliminated that was due to the fact that the information the evaluation for was not that was not fully at accurate and that after receiving additional information after the initial interview of getting that new information you would think if someone misstates something you want to keep a record of that as opposed to eliminate the false statement that's certainly one approach that certainly would be best practice in this instance that may not have been utilized but that doesn't make the hiring decision or that doesn't necessarily create evidence of you need to have this as a very briefly moving out to the second issue we believe this issues brief in large detail but it's curious the connection that the general counsel wants to make here that on the one hand the company has to say it's a unanimous but on the other hand it's telling all of the telling a group of selected horizon's employees that they're doing a great job they want to be hired they told them that they  applying the benefits offered by horizons and adams these are new conditions so it no point in time does the record reflect that adams told these folks especially we're going to recognize the union we're going to adopt the horizon c v a a for those reasons we think the boards eighty five conditions of those employees secondly jail them did not have a practice of directing or controlling plot it matters for adams employees adams basically was the ultimate decision maker came up with the titles for the residential coordinators something that was new to the senate and as the court is well aware this was a ten day transition and window of sorts which is doing all that would determine who the for adams employees and it erica evans who was hired as the senate director for in jail and had been a long time employee of horizons and its predecessor therefore she had knowledge about the background of the employees that adams was returning to her  they one of the the positions of points of the union and the dollar b is that representatives from the jail them participate in a two or three of the interviews or had discussions about employing harm merely discussions it was not the ottomans decision making process gee i'm gagging for adams was the ultimate decision maker so our contention is that adam alone made its basis for who they would hire and who they would far in this or any law when the unfair labor practice alleged relates to hiring is there and yet we're still trying to assess joint employee liability is it control as to the so starting with the union avoidance scheme as judge higginson pointed out it is purely a factual contest the chat the challenge here is a purely factual one there isn't a challenge to the law and all of the arguments you just heard everything that's in the brief they were presented to the l j they were presented to the board and the board disagrees and so did the with the employer's factual representations as t test as to what actually happened during the transition period specific people were discredited weldon was specifically discredited mcgillis was specifically discredited gagnon was specifically discredited all of the evidence on which the employer relie before this court has been considered by the board and it has been rejected specifically the the notion that these are after the fact statements and they can't be used to the extent that the argument is they can't be used to show what somebody is intent was makes no sense they say they they very definitively outline what the c e o of this company what the mindset was and it is a misstatement to say that there was no direction to the lower level employees down from the c e o there's an email from paganini to weldon that asks weldon to explain after the hiring process to explain how it is there roy that's the c e o roy adams how roy's repeated emphasis on hiring sub r a's which are non union jobs how is it weldon had to explain you didn't hire enough of those people nonunion employees even though dr repeatedly told you to how is it that didn't happen these are not statements that are after the fact like in brown and root i'm sorry those were before statements but these are not statements like a c saying we're not in union shop i want to stay nonunion those are lawful statements that still uses the past tense how did we fail to do i believe so i believe it's in the it's certainly written after the fact so i i'm almost positive it's in the past tense because it's not contemporaneous with the hiring and it's ass you're drawing the the inference from that that they were fully aware before that he had this intent right it says as roy emphasized the sub raised his should have been hired over the unit employees so this is not a matter of you have to clean somebody is intent it is clear this is one of those cases where there is demonstrably evidence of somebodies intent it's not circumstantial and it's also shows that the the evidence shows that the lower level officials were aware and in fact the adams disciplined several of the employees for not not avoiding the union so they had they had there were repercussions for their actions so i think it's a stretch to say they had no idea what they were doing otherwise why would they why would adams discipline people for something he says nobody ever knew it doesn't make any sense he disciplined them for not carrying out his instructions to avoid the union when they were doing the transit what are you what was the discipline there was a written reprimand i believe for both wild and impact me that went into their which personnel files nonunion employees were not hired but it says sort of in broad terms that you didn't carry through with our creating carry through with our process which was we wanted to avoid the union so they were disciplined for that purpose men  briefly i'd like to clarify a few things as it relates to the pretext the five the five employees but the pretext so the employer makes a lot to say well you know they only shredded one document or they only amended one document they only did this once or they did that once but all of these events happens to union employees to union incumbents so i don't i'm not i don't know how far you can get by saying well we only did it once and we only did it once for this person really did it once for this the whole scheme was to avoid the union and these events took place targeted at union jobs so we have taylor again all of this comes down to the pretext is the same arguments they made to the board and that were rejected an evidentiary an evidentiary grounds mcgillis lowered taylor score changing it from a two to a three tailors the union president the ael j specifically rejects mcgillis is testimony in this regard as to why she did it cousins camara is the one who said during her interview i got in i think it's dormitory of the month several times mcgillis says  then later thinks well that doesn't seem she talks to bowman and bowman says that's not true but at the here and then she shreds the initial four creates another one but then at the hearing lang testifies he was partnered with cousins  lang testifies in fact cousins camorra did win this award several times so the judge relies on that and says the underbody testimony is that in fact cousins camara testified in her interview was straightforward and accurately represented what her were at the center when was another one who wasn't hired he says the employer says he slept on the job and stole the l j rejected the defense on credibility grounds gagnon during the hear in couldn't what he was referring to when he said i fired him because he stole and he slapped lang was another one where they said we didn't hire lying because there was a date discrepancy we couldn't confirm that the background we can confirm at this  ordered that the five employees who were unlawfully not hired be offered jobs or thing the day they ordered the employer not only to recognize the union but to set the terms and conditions as they were with the predecessor rights the status quo ante on the terms and conditions of employment  sort of the bigger two legal issues join employer liability and the successor rule are you going to reach both of those sure i can move quickly sure to move into the perfectly clear successor i mean the concern is is how does one i mean putting the case against you would be how would one ship a remark a reassurance to employees ninety nine percent of you will have a job but at the same time they were telling the n l r b we're going to end the employees we're going to be reducing we're going to be creating new positions is going to be a lot of flux right and i think the board before of the board talks about this in a footnote where because the employer makes that argument the employer says that you know it's telling the employees that from twenty that we're reducing from twenty five to fifteen should have sufficiently and let these people know that well two things i suppose that the union was going to stay but there's a response to that that the perfectly clear successor doctrine so to the extent your question goes to if they were only going to hire fifteen can you still be a perfectly clear successor and the law is that the unions continued majority status is made people are led to believe but this is a point where the i l j disagreed right in the boards and the board says she used the wrong standard she applied she didn't apply the correct law the law is not all employees not all twenty five had to be retained a sufficient number of incumbent union employees the board is relying just on that february thirteenth meeting right there's no other evidence other than the ninety nine percent statement is that correct although there right there on the board is saying that the bargaining obligation yes attached on feb thirteen when gagnon got up in front of the employees and said i want to smooth transition you guys have all been great absent disciplinary issues i'm ninety nine percent certain i want to clarify something i don't remember what page it is in our brief i wrote that gagnon said so we do at written it right once which is what he said is he's ninety nine percent certain they will all have a you know things are going well we're going to try not to disrupt too much but in the same meeting they're saying there will be fewer positions and there will be new positions so is the do we have to pin it on the ninety nine percent statement is that all there is no there is not all there that's not all there is that so during that same february thirteenth meeting taylor is there on behalf of her not only as an incumbent employee but also represent of the union but then in the formal meeting and she asks when he says we're going down from twenty five to fifteen and she asks some several follow up questions what is that going to be is on our staff to ratio going to change then of course yes and dan young then reassures her that the supervisors will pick up the slack and they're creating another position the r c position and they'll pick up some of the slack so in fact he makes it so he leads her to believe that given the other changes they're going to make that the are a position what's the besant going to change what's the best case that in one what if the statement by kenyan had just been well most of you instead of ninety nine percent most of you would you take the position that that two great sex and sexy i don't know where he was but i want to be sure i thought you clarified and he said i'm ninety nine percent certain disciplinary issues i am ninety nine percent certain i'm asking you what if the person in trying to reassure a very nervous group said most of you i don't know that's a different case and that would be for the board i know that's not the satisfactory answer but that would be for the board to so there are two there all turned there are two alternative theories there's the eighty three which we've already discussed that if this court affirms the board's fine and that they engaged in an unlawful union avoidance scheme they lose the privilege as a absolutely so that the status quo ante continues to stand on its own under that legal theory alternatively is the other theory the perfectly clear successor but at the end of the day either one or both gets us to upholding of the board's decision in order but what i wanted to say was the reassuring of the employees that let's be very clear on what that means that means that it's not only reassuring the employees but this employer then by making these statements and saying you're all probably going to still have a job nine percent certain have a job it doesn't identify having things going to change those employees then act on that information and they'd choose not to go seek alternative employment so while we can cast it as reassuring employees what it also does is entrenched expectations that the employer can then capitalize on because they've made these reassuring statements employees haven't gone out and look for alternative employment because they think their job in large measure is going to stay the same and then the employer turns around and maybe things are completely different but you put the employees in a position where they weren't able to make an informed decision because they believed what your honor has cost if i had characterize as reassuring statements but the board used those as not just reassuring employees but leading them to believe they have a job under the same terms and conditions and again i would emphasize it doesn't have to be all see my time is up there any questions on joint i'm happy to talk about join employer i can rest what's on the brief board approved a remedy based on the board's longstanding loves barbecue doctrine which is that if an employer violates the law in the hiring process by not hiring union members that the remedy is a status quo ante remedy as the board ha said i just wanted to point out that the employer in its opening brief did not challenge that remedy at all and are we argued in our brief that it's way they did make some challenges in the reply brief but no challenges whatsoever to that remedy in the opening brief so for that remedy i don't think this court even has to reach the perfectly clear successor issue if the court does reach the perfectly clear successor issue i did want to offer two answers to judge taken since questions first the best case that's similar to this case is cited at page forty one of our of the union's brief at spitzer akron v n l r b five forty f second eight forty one it's a six circuit case very similar to this one where the successor employer came in and said you all are doing a great job we want to keep you around all the employees stuck with the company through the transition period and then on the first day or roughly the first day of employment the employer changed all the conditions in that case have though in the meeting where they're told you're all doing a great job was the employer also saying but we will be creating new positions and reducing others no that's a big difference it is ok and i'll respond to that so in the each of these cases needless to say is different on its facts and in this particular case the employer came in and said look know we know there were twenty five are a positions now they're fifteen now first of all it does signal to employees that if you were ninety nine percent sure of you all you could be hired you're doing a great job we don't want to rock the boat all the things they said that especially with only fifteen  fill it seems pretty likely that those positions are going to be filled by incumbent union members twenty five to fifteen jester taylor the union president stood up and asked mr gagne and the executive director what wait a second only fifteen of us doing twenty five people's jobs isn't that going to change how many people we have to supervise in the dormitories which is what the auris do and mr gavin said no no we're creating these new supervisory positions are seizing the residential coordinators and we're going to hire more dorm supervisors to that work so as to the bargaining unit which is the correct area of focus and the employees who are in that part of the unit they were reassured that their jobs wouldn't change if gaghan and said yeah yeah we're going to we're running a new show here you are going to have to do a lot more work it's going to be different work that would be a different case but here gagne did precisely the opposite he said no no no nothing's going to change we're ninety nine percent sure you're going to have the job we don't want to rock the boat we want to smooth transition as a union says we're the new employer in town we are exercising our right to change conditions as a union where i don't like that will very much because even though the employer may hire all those employees it gives them the right to unilaterally change conditions but that's been the board's role for a long time that's all adams had to do here they did the opposite they reassured employees that things weren't going to change they weren't going to rock the boat they wanted a smooth transition they were ninety nine percent sure the same folks would be there and when the union president who mr gagne knew was the union nailed down in the d c circuit case which has been followed that get the proper motive in alice this is whether majority of union members will be carried through so they'll be a continued bargaining obligation so even if it's not every single union member when it becomes clear that a majority will be hired the bargaining obligation attaches with just a little bit of time since she's during the time of joint employer liability could you just give us best fact in the record to show join employer liability and best of all so yes so i mean this is this is a very straightforward the proper  mode of analysis is the board says and put in one of its decision is the hiring decision in this case is really all about the hiring process it's not about the part what happens after the facts in this case and then that hiring process it was totally clear that the two companies were working to go either they interviews of the employees for adams so they were in they were doing the hiring together they were setting the wage rates together and those are the basic factors which go to joint employer status and as a minimum as to the unlawful hires in jail these were happy for statements that were made by mr adams during the hiring process i'm going back to do you shoot about the after the fact statements again all of the all of the witnesses who were involved the interview process specifically denied getting any instruction from mr adams as to who to hire and whether to avoid union recognition in the ale j s decision specifically pages fifteen sixteen of the record excerpts and she credits miss weldon's testimony as far as discussions pertaining to hiring at no point in the record or no point in the in the ale j decision does she specifically state or even address the issue as to the testimony from this pod me miss weldon mr gaghan about not receiving any specific information from mr adams about who t and whether to avoid union recognition that issue that issues just simply not addressed in the administrative law judge decision or in the board's order with respect to the discipline that was issued after the fact it's important to look at the you know the actual disciplinary records here in the sense that it's not as though these people were disciplined for what was construed to be a failure with respect to union hiring their discipline for what mr adams considered to point on the perfectly clear successor issue you marc it's important the board did you know the board's order with respect perfectly clear successor doesn't apply you know a new standard different standard for what the ale jay said rather what the board did is it reinterpreted or re construed the meaning of what mr gavin said when it came to the reduction in employees and whether that was a significantly material change in perspective the employee said they were on notice there would be changes to their terms and conditions of employment they all jase to the l j found that that alone was sufficient to not make the employer perfectly clear successor the board decided that it was sufficient so i just want to bring up that point of clarification