please the court i come here today from columbus ohio to argue on behalf of her student in this case and i very much appreciate the opportunity to share with you clarify for you of the reasons we submit that the should grant our petition for review and set aside the n l r b order in this case the reasons that i'll go over today can probably be captured in that we're told which was to find that first student became a perfectly clear successor of the second all michigan school district when it took over transportation in when it was negotiating the transportation services contract with the school district that it became a perfectly clear successor two months before that contract was done being negotiated with a hose let's suppose you agree with you with the effective date of the contract so let's suppose we agree with you with your first proposition what's wrong with the board finding that there was a perfectly clear successor status as of may sixteenth in the state me during the may sixteenth we thank you our position is that and when we litigated the case our position was that the statements made at the march two meeting insulated first student from being deemed to be a perfectly clear successor because it put the employees on notice that they were going to be changes obviously the statements that the company was going to only recognise a union if yourself to what was said at sixty on the sixteenth definitely so what was said on the sixteenth mirrored in almost all respects what was said at the march two meeting and there were statements there that the company would recognize a union if it took on a majority of the school districts employees and and with negotiate a new contract with them that statement was repeated again they're the only new information that came out was that the company would maintain wages otherwise the message was pretty consistent the second thing i would say about that in saying that i think it's important to bear in mind that this was a school board meeting this was not a meeting by first student with the employees what was communicated was based in response to questions asked by members of the board of education and that's that's significant because our position is that what you are asked publicly about a narrow set of circumstances uses the term all or planned or take all employees i get you to argue you didn't ever say that the government in response says you're obliged to be a perfectly clear successor if you intended to say most of the government employees but i don't think that's what and you certainly didn't commit to the same employment you indicated that in the past eighty to ninety percent of people would be taking on but in this case you took on forty one of fifty five barely a majority finally that with respect to the march second i find that particularly troublesome if the board has squarely held that you had a bargain obligation as of march second which means you had a bargaining obligation when you didn't have an employer and you didn't have employees a bargaining obligation of the year if you had reached an agreement with the union on watch second you would have violated it a two on because you wouldn't have would be the crucial date do the situation that it met with the employees it articulated what is the legal standard for successorship we got again not one hundred percent right but if we hire fifty one percent of the employees we will recognize you and we will go see  supreme court though didn't adopt justice rehnquist position all right and in burns the only question was whether or not the employer was obligated to the collective turns of the collective bargaining agreement that had been existing and the court held no on the court there was dealing with a situation where not all of the oh boy were hired by the new and it seems to me a reasonable interpretation of the pinion given the following comments is that the all has to be understood in the context in which the court was addressing the issue but what i'm going to be clear about your position here in response to judge wilkens question about the board told him it is reasoning about what was said on not so much what was that what your clients said to the employees was a not to indicate that there was no reasonable grounds to believe that they would be hired by me that the terms would be the same and is that because the employees represented and said they didn't know that what would be the you know the hour but that's certainly part of a necklace back to the your client said at the march second meeting was the fish and put everyone on notice absolutely that wasn't clear what was going to happen here and i think if you run through the litany of things that in the past have sufficed and that the board moved the goalpost in this case and remember that we litigated this before next you know was issued when they said no you need a clear statement that you were going to  still not going to reach some kind of agreement you think it's enough just to say well we don't know exactly what the roots will be i think at the look at it all collectively well tell me but i  market and the and the ridgewell test of do you provide information that portends employment under new terms in other words gives a sign as opposed to do you clearly inform the employees that you're going to  condition employment and you conditions i would say that absolutely does suffice no dispute that if you if you do that you is that yourself and perfectly clear successor steps what i would quibble with the board over and say its decisions and support you something i'm probably going to be different it's a private employer just out of the box you know that and then you hear that we're we're going to require you to all submit applications and meek says and you under the statute here  on the employee to figure out what's going to happen message that there is no guarantee it depends on how we hire it to your point about this school district and for students hiring criteria being similar would be said that a lot i'd like it too if you have a different teacher grading different papers you have a different coach coaching different people they come up with different responses so who's to say that first students can apply those criteria in the same fashion foundation had we need bus drivers school district of this concept that has to be clear is a morphing of the spruce up test from when the stress supports it clear it was in reference to in connection with being invited to accept employment now we jump back and say you make any statement a which your brain said we don't want to you know stifle employers from responding favorably to prospects for employment but now if you make any statement with the words as in you're not clear you're going to introduce new terms you said if we recognize a union if if if you complete an application if you pass a hiring criteria and if we hire fifty one percent of the employees we will recognize your union but we will not take their contract etc so that we have this now and i want to understand the new employer can come in and say we're private employer we're going to do things differently we'll let you know after the reach final agreement on the contract or now you're not suggesting your client said that i'm trying to understand here we're talking about hiring some bus driver yes so the question is you know are we going to go one route or another but there's no signal that the bus driver week is going to change th never said you never did it you ended up with but you said often we got there and up with we can eighty and ninety percent that isn't all now maybe dropping one off maybe dropping two would be virtually how you can how the board can conclude you are a perfectly clear successor based as they are all i as their argument in a brief puts it when you hire most of the employees that is just contrary to the united states supreme court isn't seems to be thinking but but we can quibble about whether it's contrary  is evidence whether or not it was perfectly clear to begin with this is kind of fundamental that if you don't think was it ever perfectly clear do you make the argument in your brief that by requiring are protected from being or only a majority are protected from being a purpose for success we don't we don't argue that you don't argue that if you plan to take less than  of all of the employees you are not a perfectly clear he does i think if it's not perfectly clear based upon the evidence that we're going to take all of them and and really i that you know i don't understand what was  your answer to judge wilkinson just acknowledging that there is a board president and that we're not arguing that only hiring a majority protects you from being a perfect their success if we did we didn't advance that argument but that's indeed with  is your answer i don't understand your answer to judge welcome i read your brief as saying look this is inconsistent with spruce up and spruce up specifically states burns requires a plan  argue that we you could find on this record that we planned to hire on for you no council you misunderstood the question the question there were you asked did you not did you not argue that a failure to plan to hire all employees took takes you out of a perfectly clear successor not that way no we didn't you didn't know that way so you  guy well i would say that our argument is that you could not find on the record that we planned to hire all of the employees because we put the employees on notice that they were going to be changes for i understand states that the exception perfectly clear exception requires an employer planning to hire all employees under the same conditions we did not make raised was that in his view on march second we could not find success perfectly clear successorship status because there were no employees yet there was no contract and i want to leave no employer no employer no employees  perfectly clear successor to the board is found to be a perfectly clear successor negotiates with the union before actually hiring any employees so that is an exception eighty two there's no employees of firms to i mean your honor was the answer council the answer under a strict reading of road rail would be that's not a violation are you familiar with altman the supreme court case yes your honor isn't it perfectly clear that would be a violation of any too well your honor the other part of that is perfectly clear that would be a violation of any till i mean what aides here means yes is that if you negotiate with a minority unionized majority representative but to be clear when they meet the negotiation at that point it was in the minority union they don't know because they're not young lawyer half of the employees could say no i don't want to work for a private company on a stick with the government and in that case if that has ever happened which it hasn't under the road real doctrine that has never happened but if it did then the board could perhaps look at it and say ok actually that's a void collective bargaining agreement it was only valid until you made your own relation of a day if the employer had made statements along the lines of burns statements prior to consummating a contract if he if the employer had said we're going to hire perfectly clear of successor but i don't think you do can do it at that week early you can use the terms from a week earlier to interpret what happens week later but you can't take those terms a week earlier before there did not say that they were they were leader bar they were the board was worried about this march second position so they came up with march sixteenth i mean may sixteenth no your honor of that's not what i'm referring to right now i mean that is true that the board also came up with m sixteenth but the board found here that the bargaining obligation that attached on march second is soviet tutti to refrain from changing the terms and conditions of the now they said part of an obligation well but then they are going obligation means you can sit down and bargain over there's no such thing as a bargaining obligation without the obligation of marc rich or out of the board also found that the unlawful refusal book bargain started as of august seventeenth when they're hired employees and i ended up going up with them but they stated that there is an obligation of bargain march second and that is inconceivable so your honor it's again what the bargaining obligation of the board imposed here is not a book maturity to immediately sit down and bargain negotiate a new contract obliged to join because they're good and there is as you well know there are a number of cases board cases where an employer and a union reach agreements with in the future for  private contractor know your honor they were at that point as of march second first student had been selected by the school district as the contractor but they had not worked out an agreement yet so that's what i don't understand  but yes your honor that's true but again that's similar to cases as in l fell to add a can when it where there is a non binding letter of intent the parties negotiate and during that time there are statements made that later even if the lineage in the snow and binding it is the writing and it's been signed by both parties right there's a big here that's been signed and the school district has selected that bid as the one and said we're not going to take these other bids they haven't agreed on a contract yet but you know that seems to be the closest analogue available in the cases and so it's reasonable for the board to look at the situations and say ok this is the most similar in our case law and we didn't find it to origins i think the board is concerned about as this court recognizing machinists that employees never whines interest on their future employment and they're not going to start looking for other jobs that other school districts if they think they're going to have  bright line and that's because it's a balancing of interests at that point it's true that the employee reliance interest will go will be a little bit less strong if the time is less but the employers interest is also in and our s f san francisco feature that in order to be a perfectly clear successor as opposed to a successor you have to plan to take all all of the employees that are those are the words in bronze and those in the no thirty five is watching robinson's opinion is not a view of him or the court it's just a reference to the board indicating an approval that that is not a footnote approving it just of spots was very careful to point out everything everybody in the world said and that was one of the things he pointed out that was not a footnote indicating the cour well first off i don't i don't see how the board can change the supreme court's law this is not one where we defer to the board the briefs filed by the employer here is not the best in the whole world but he does make the argument that this is inconsistent with spruce ups interpretation of all of  line one runs your honor in my view not any reference to disagreeing with the board's application of screws up automatically means that they're raising an argument related to the specific that specific language which they did not raise in this case they do not say this was in there's never been an issue an argument here that telling employees we're going to hire ninety percent of you means that you're not a perfectly clear successor that ha that's the second part of the answer is it has enough markets the issue wasn't the number of employees who were distributed to whom were distributed employment application so in that case the employee distributed them to honor and the board is quoted burns again and usually when it quotes burns it says all and keeps that in there and that later includes that statement that was quoted in this in the footnote that this court  it would offer employment to all existing employees who completed applications and that hiring criteria which the record down wishes are hired eighty to ninety percent of the existing work respondent also stated here is where i was wrong that it planned to recognize the employee's existing union represented so long as fifty one percent of the existing workforce was hired by yes or no that is my understanding of what or things birds require that the new employer comes it means and we're going to offer everybody a job the conditions are the same qualifications are the same and our history is you know we have hired eighty to ninety percent and furthermore we've also said that if we hire more than fifty one the union comes with it yes your honor so i'm trying to only thing i'm trying to understand here is all of this happens march second and the closest cases are the two that you cited in your brief and judge wilkins pointed out the difference in one here it's almost as though you have two strangers other than one is a bidder and that  well your honor the focus is on employees alliance interest and at the beginning of this meeting these this was first students representative was introduced to them as the bid that it then selected to take over the school district's bussing contract over the next year to take that contract and so it's reasonable for an employee from the employees and perspective at that meeting to look at that and say ok these people are going to become our employers we should rely on the statements that they're saying here otherwise why would the why would there be such a meeting in the first place to have them meet with if it's really too early of a juncture for there to be any reliance it seems that it wouldn't be that kind of meeting at that point at least from an employee's perspective if your employer is introducing somebody and saying this person you know is who are hoping to have come take over the company soon and that that is the point that will start to engender employee relian we said in the us if if we if we find that the board here we have to remain well your honor i guess there's two issues there there is whether it can possibly dish it right and whether it can and whether it was sufficient in this case i think my reading of first students argument here is that their subsequent announcement was fine because a subsequent announcement is always fine because they didn't have a contract yet it wasn't a circumstances based argument of based on this this court's sentencing machinist's it wasn't a circumstances based argument saying well even though the normal rule is that once employees have relied on that offer of employment without expression of interest a higher there cannot be any new terms and nouns after that point it wasn't in these circumstances there should be an exception to that general rule the board wasn't really presented with that argument and so the board didn't have an opportunity to look at it so i don't think this is the right answer would be a remained there immediately observing that that's not something that's brought up that they haven't asked for that exception here general area manager testified he made statements that the company wanted to hire as many individuals as possible that simply in a conversion they hired eighty to ninety percent of the existing workforce and that represented employees bring their representation that if the employer will unilaterally implement initial terms and conditions it indicates that the employer will bargain for those and a perfectly clear successor for goes the unilateral right to set the initial terms and conditions is simply the obligation simply to bargain over those initial terms and conditions and that's what the employer expressed at this case also expressed an intent to care to course may well be in ministry more more strictly than the government does as well the mother is a reason why the government is switching to a private company it's true your honor but there's terminations they intended to take all its and i would submit that what was expressed to the employees at least as far as employees are from their perspective would be told that they intended to take all those mean that everyone would accept that employment but they certainly intended to impression only in a sense perhaps a timeline as as far as their length of time potentially but i do believe the board has found cases in which expressions have been made prior to there being discussion majority status in the sense that they may not accept employment if unilateral terms are announced initially when they are when only a expression is need to retain the majority of employees and being made before there was a contract we've taken the position the board actually relied upon with her happened after the contract and executed that was used as evidence to support the finding and in none of those cases is there any  barring of a geisha attached it's just not there so that i would say that i wanted to comment on the may sixteenth meeting and the notion that with only five employees there that that was sufficient in of itself to trigger a perfectly clear successor status which has ignition created visions in creative visions of what actually said the employers telling twenty of seventy employees that terms and conditions were to change wasn't enough to put the entire unit on notice so the fact that five employees heard comments that didn't reflect that things were going to change that only addressed the question about union representation and wages twelve hours before meeting ought not to be sufficient and certainly to be no reliance interest so shoot with that down the line centrist issue of march two again our position is that and certainly if you compare it with up market street that you say the cases are on all fours in terms of of the analysis but the importance in terms of reliance there this is a period of a contract is being negotiated and that's what the employers interest ought to be greatest to in terms of negotiating the best deal it's going to make this worth it not just necessarily for students but for any employer and so i think that's an important consideration in terms of whether once that agreement is finally done twelve hours later you're sharing a new terms could anybody rely on that or should the employers interest be given equal or more weight than that you know march two there is some there is some missing evidence because again this case was not tried under the current standard and the ale jay didn't necessarily be credited week's testimony but one thing we said that he didn't find necessary to say was that dr peter ross from the school board who was at  meeting told employees that only that their contract would be known void if if first student was selected but that they would work under first students work rules now is that  as you know there is discussion about being selected as of the merge to meeting look back at nick's testimony it was that if we get a contract it was all conditional on that just like if you you know i don't even know if i know what a non binding purchase agreement is them to me is not an agreement and so if you're referring to at jim i mean companies all the time i sorry i didn't understand what you said that you can't become a perfectly clear successor if you've got discussions back and forth that aren't binding you could be the same thing as really goshi asians with the school district but we don't know whether we're going to have an agreement if it's non binding who knows what the condition because it was characterized that way points but as we are human our reply brief everybody treated that and there's no evidence there was ever any other agreement that led to the consummation of the sale