related business excavating company also located in dubuque and the point has to be made for excavating companies had a fifty plus successful year relationship with over four trade unions your honor no  no past unfair labor practices no fair no past squabbles with the unions really they've got a clean clean record and the proud of it they work with the teamsters laborers operators and the carpenters union now this case that's often april two thousand and fifteen when teamsters local one twenty files an election petition with the n l r b and the company check for problems gets the notice and although darrell golly the complainant in this case was an election observer during that election in may of two thousand and fifteen there was no company opposition the company didn't hire any persuaders they didn't mount an aggressive management campaign like in in right line management did they fought tooth and nail the union in this case opposite vanessa but the union coordinator called her sent a notice to the company it was wrong and the wrong information on it the general manager of chick bright properties called miss bucky and told her hey you've got the wrong employer and you got the wrong name on this notice and she said oh we're sorry would you like us to reschedule the may two thousand and fifteen election which in this world is manna from heaven it from an employer standpoint because they want the additional time to regroup to apply their arguments to their staff and their employees the general manager  need we don't it doesn't bother us let's have the election when you schedule it and so they did not oppose the teamsters local one twenty coming in in this particular instance soon after the uncontested election  the general manager started receiving complaints that mr ghali was harassing this employees over and over again and repeated it to discipline mr ghali when he received those complaints what they did is of this court says and maybe the carlton college two thousand year two thousand and seven also says when you're reviewing a record for substantial evidence to see if substantial evidence supports the board's decision we have to take a close look at the strengths and weaknesses of the inferences but the board made that there was an anti union animists supporting an adverse employment decision so look at the august august seventeenth two thousand and fifteen letter which plays and figures prominently in the govern the board's case before any inference is an anti union union and miss can be drawn from that in artfully broad broadly worded letter we need to understand its context the record is respond the stuff you talk about they didn't counsel dolly didn't you know paper the record the standard stuff what they tried to do your honor is they tried to work through the union to counsel him and the salient point there is even dennis saylor after receiving the aug seventeenth letter although he didn't necessarily agree with all the underlying conduct that was complained about he did not regard anything actionable about the letter or the complaints about harassment right standard so our nichols case sort of talks about this but they should but then seems to backtrack a little bit on that requirement in a subsequent opinion sort of saying well that can't quite be it what it occurred where the board failed to find a logical nexus between the protected alleged protected union activity and the advert on the one hand and  adverse employment action on the other there were no findings associated with that we argued in front of the board you never should have shifted the right line burden like the burden of persuasion never the burden of production never should have shifted to  check for properties and where we think that the board erred in a word about nichols nichols did not introduce but for causation right line itself a careful reading of right line specifically says the ultimate question of a determining causal link between bad motive and the discharge is a burden of persuasion that remains always with the general counsel and then so there needs to be a front so if logically there needs to be factual findings by the board applying a right line analysis that there are some facts that support the general counsel's prima facie case and what motivating factor yes ye yes so you're not saying that there had to be a but for that initial privation correct that if we use that right that's at the end of the analysis the burden persuasion never changes but at that point there's there needs to be some evidence can we look at the record and say well maybe i think we have a i think at least one case where we've sort of said well it looks like the standard wasn't precisely applied as a legal matter but it's there in the record and therefore weekend from the petition is what's your view on that is there enough here or is that even a procedure we look i think the two i think the l g in the board got it wrong when they just relied on a protected conduct we got and some evidence manama's were done this camera says well no they got burton wrong they should have found that they eat protected union activity was the motivating cause of the adverse employment action so to get to your question he could have resolved it at that point by making additional findings of fact and this is how i think remain and would look like this it remained back to the board for a specific finding on a causal connection between the protected alleged protected union activity in the in the terminations in this case grants protection manager would you believe the standard is whether it's in the general counsel's bird a substantial or a motivating factor do you believe that's the test you use that term with judge kelly i mean that's overall the general it needs to be a motivating factor but in  motivating or substantial factor there still needs some logical causation and we're not saying you know that in the prima facie case there needs to be but for the cases over no no no no but there needs to be some findings there needs to be some evidence and we're saying on this record the standard was misapplied and the factual record falls fall short of substantial evidence to support it about their sentence responded takes exception there was sufficient evidence of anti union animus to justify shifting the burden under right law i'm right don't you think that's enough now it may just be barely enough don't think it's enough no i don't respectfully i don't your honor that exception is about the sufficiency of the evidence and with the families that i'm shifting to justify the shifting but there's nothing in that exception about the the elements of the right line burden which is really with the companies attempting to take issue with is under the right line bright line framework right but it doesn't it doesn't take any issue with what the elements of the right line burn are ok then they say next and they all  finding that the written warning for discussing union matters was evidence of animists don't think that's close enough the board's position is that it's not at all and there's various burden and a judge understood it the court was part of the board is promoted well now your honor the under section twenty of the party has to earn the objection before the board tenney no objection that was not urged before the board level in terms of the the substance of the case on this discharge issue the board's position is that the the evidence is is very clear it speaks of animist towards the specific employees union general showings of anti union animus by the employer and no explanation as to why the employer would have targeted the specific employee that it did and then dr sensual were not connected in this case you have really the opposite situation statement the general counsel does not have to prove a connection can't think of a broader word does not have to prove any connection between the anti union animals and the specific adverse employment action you're not defending that are you  well you're owner of the board the board majority did find that there's no nexus specific nexus element in in right line and so that is the board did adopt the view that there's no ific showing of a nexus and i would just remind the court if i can step back a little that under transportation management and bright line the issue is whether there was sufficient evidence to support an inference of  l motivation and the board goes through the right line analysis to determine where there whether there is enough evidence to support an inference and in this case the board believes there certainly is enough evidence to support an inference you have an employee who was essentially the instigator of union activity at this facility she was the originator of the union campaign he got the union and you have the him for your repeatedly targeting and talking about that activity and i understand that my colleague has characterized his activity as harassment and bothering and those words are certainly in the record unfortunately for the company though the warning that was issued to him did not talk about harassment did not talk about bothering people didn't talk about taking time away from from work that working time is for work all of those points are well taken but the warning itself said one thing and it's that he was born for discussing union organizational viewpoints so i would submit to the court th even if judgment and even if there were a causal next element and i think that's also speaks to judge kelly's concern about looking at the whole record in this case there is an access to transportation management because it's the supreme court and they're quoting and talking about right why so i think it's the main one and don't doesn't the supreme court say the general counsel has the burden of showing that the employees conduct was a substantial or motivating factor in th forward with evidence of protected activity knowledge by the employer and animists how is that i'm struggling to figure out how that isn't a connection which is the word that's used in the footnote the opinion in other words i'm not sure what the difference between a substantial motivating factor is and one that has a connection two or nexus i mean the connection the idea of connection can be it doesn't have to be established by a direct piece of evidence in the record it can be an inference that is based on protected activity knowledge an animist i think i think where the board departs from the board majority for example departed from the concurring board member is that there is an extra overlay on top of right line to show and nexus the nex is not really examining the minutiae of what the general council showed and then when the burden shifted and so on the question before the court is just is there substantial evidence to support the eighty three finding and the eighty three extent he leaves out that in addition to the warning that expressly targeted this person's union activity you also have a very suspiciously impulsive decision to discharge mr ghali so you have an employer who has no rules prohibiting employees from surfing the internet in a sort of a to minutes way at work who suddenly discharges an employee for supposedly violating some sort zero tolerance policy for that behavior the problem is not only is there no rule prohibiting what he did other employees testified in this hearing that they can and they do have non work websites open they stream radio from the internet for example you have an employer who in the face of the employee's denial that he was doing what they said he was doing the employer did not conduct an investigation  not examine his denial on the spot instead precipitously discharged him and then conducted an investigation after the fact the company also attempted to new justification for the discharge after the fact and so all of those all of those things that i just mentioned are well recognized indeed so you not only have the evidence that the general counsel put on as an initial matter you have evidence circumstantial evidence of animus that came in when the employer attempted to defend its action so before this call court all of that is relevant to the as a support for the board it before your time's up do you have the board do approved and applied in other circuits i think the rationale for them is is important for the court to keep in mind in when you have an employer who sets out to question employees about union activity in advance of litigation that's about that union activity you have a special situation in the board and its expertise has determined that this is a situation where there's an inherent danger of coercion within the meaning of the statute and again it is the bedrock again did your time and i think i are you you know your own or the this court does apply a multi factor test for interrogations in general again this court the the board use the specific situation is different and it warrants special treatment you have an inherent danger of coercion that employers face in this pre lit occasion context they may be they may feel fear and they may want to abandon their union activity curtail that exceed the law about that activity they may be deterred from participating in the board's process and and any kind of investigation so there are a litany of special consideration those are good hypotheticals but boy the facts in this case are about the best imaginable for employer well came came forward though there is an inherent danger of coercion and the board doesn't understand that employers have to prepare their defense to on for labor practices allegations so the board has created this limited privilege for employers to ask questions about union limited privilege and it understands employers have to ask questions but it just that these employers give employees three assurances they're very simple and easy to give and that is the condition on which under the board's law and employment go circumstances so the employer didn't affirmatively tell him the second interview was voluntary the employer also didn't tell him that there would be no negative consequence or reprisal based on his participation or nonparticipation in either one of the kurdish just a few brief points in rebuttal as far as the johnny johnny poultry issue goes this would be one of the worst cases for the circuit court of appeal its circuit to adopt a per se rule admitted he knew it was voluntary admitted that he didn't have to answer the questions and in the johnnie poultry assurances and they're going to sure they're good public policy reasons to support it so that employer doesn't engage in course tactics but the record doesn't bear that out here at all as your honor reminded that the room bill kane was the guy who came to the employer to begin with the complain about the harassment on the shop floor bill again was was but the record as far as the record goes the general counsel bears the burden of proof to prove that he wasn't in on the record your honor and i think you point this out you read that process he was brought on cross examination if there was any coercive testimony by mr kane it was under the coercive rigorous cross examination of general culture through finding of cross exam was just go ahead and that's why the a l j judge locky seen the demeanor of the witness on direct and cross decided yeah there's no court there was you go through the cross examination it's at best ambiguous to support the general counsel's position that there was even a per se violation he said yeah nothing was brought up to know that he wouldn't be disciplined or no action be taken the equal inference could be brought that mr cain said no one was telling me i'd be disciplinary action i mean i was going to be disciplined yet no one was threatening me both times that there's a fair to middling chance  defense of an unfair labor practice charge and a few of them to establish the legitimate nondiscriminatory reasons which were being complained about by these particular witnesses and nothing more as far as one i know were not they say in certain cases the perjury of a claimant that affects the integrity of the process can be in the big can be denied outright that remedy reinstatement and back pay now judge  you know that's come an agency thing we'd really like it if the agency would enforce the integrity fields process by finding when someone commits perjury they don't get these get these remedies in this case the issue of whether the agency abused its discretion in not finding perjury and denying outright those remedies in this case is right for this court leaving aside for a later day of the compliance issues of the appropriateness of those remedies you can still bring it up in compliance right i can we can yes yes we we do we can and we intend to and the other question is the panel ok saying the case number seventeen actually cases number seventeen dash fourteen fifteen and seventeen twenty one ninety eight are submitted for decision and the court will be in recess for ten minutes