wing and the producers of musicals had two different kinds of arrangements the one the wings simply provided the hall got rent and the other it also promoted the show and share the profits with the producers  the producer of the musical was always responsible for bringing to to boston a stage ready program that total control over the content the production direction of the show it always determined whether music would be why are recorded and if live how many decisions should be hired locally versus musicians that would travel with the show this case revolves around a practice that was would he would in fact determine which musicians would be retained to to work on the particular performance one would also pay roll the musicians they were less checks would come other reckon reflects absolutely no involvement with the weighing in the supervision of the employees except what i have stated erect in the direction of the producer the general manager the w paid starting in two thousand and fourteen and for over a year before the petition representation petition below was filed in practice was not used the only musical that are there that was produced petitioner early two thousand and sixteen seeking representation of musicians who had in the past been sourced by weighing and the board ordered a lect the case found its way to the court now twice nothing is changed national labor relations act requires basically three things to form a part of the relationship requires employees requires an employer that employs those employees and requires subject matter over which the employer in the union could bargain it relates to the terms or conditions of employment of those employees that's not employer controls none of those are present in this case relied on the julliard case as a language which suggest it might have provided that possibility because he refers to a number of hours that employee could work over the course of two years case the board would applied the davison paxson formula which looks to whether the employee regularly averages four or more hours of work for her week for the last quarter prior to the eligibility to the i take it it's undisputed that davison paxson formula kansas city repertoire allowed it not to follow the usual rule that there had to be some employees at the time of certification as of the last quarter you have said that neither of those cases governs this situation that in fact in both of those cases they had regular part time employees and that the board has not satisfactorily justified its ition from its own to do that do we have to reach any of the other issues that you have presented yes your lee boyd order is defective for numerous reasons in the most compelling reason not to email which is the situation has not changed in the last now almost six years whatever the i'm sorry your asking us not to remain and but simply to vacate and the case there is that your request yes it is your own so that be on the grounds that you can't reconcile the giuliani rule with the wan back we know they could look back at least one quarter if they use say in this case they're looking back more than a year to try to find employees is there something and the act that would preclude them from looking back a year is is there for example of statutory language that says something like at the time of certification because if there is any possibility of interpret the act to allow this look back period i would think the appropriate remedy would be to vacate and is not specific as to exactly the issue as your honor has phrased it the statute certainly suggest three years important because for example strikers lose their right to vote in elections after a year the implication being fairly clear that the that those folks that once were sourced by weighing are employees of the weighing past past so mean that the answer is the last time anybody was so employed was it the end of two thousand and fourteen election was held in two thousand what you it seems to me that what you're saying now that you are in a situation like where the employer goes out of business and has to go longer and you place oh or wish they have to bargain sad and therefore the board has no power to recognize under these circumstances yes correct you are on the board has not the bo case law is consistent not precisely your honor the issue arises three separate times during the course of the cratylus case one is sure there have been an election held and there there the issue is what's an employee in this context and what's the eligibility once you decide people are employees then you get to the summary judgment point where the poor refused to take further it as an affidavit record but they were were refused to hold a hearing saying nothing had changed that's obviously wrong something it changed time it transpired and and then there is today and the real me and order would say to the board now almost six years later please decide whether there's anything to bargain over any employees a bargain over i was next to suggest to you that that's a pointless exercise a list there's there's nothing remotely resembling anybody ever ordering an employer to prague in with a union  anyone see me yet oh yes yes i'll start again then may please the court judge cantor for the national labor relations board your honour's this case as company council's been arguing arises from a typical circumstances but it is still subject to a stablished bourg law in this area we have before us is a request to  and order to buy in for a violation of eighty five if i correct that's the real crux of this case correct all right tell me who who who represents the employees in this case where it comes in is at the time that all of this was originally transpiring which is going back to two thousand and sixteen in the hearing but itself play at some point after that so i think the review because i would really like like learn something perhaps new law because i left the lid off of it with the seems to me that at some point it maybe i should just switch right to the example i gave before if i know they have to buy tickets perhaps with the huge of the about their going out of business but do they have to buy get a view contract after they cease to meet me in business well no your honor presumably there would be rather extensive and vigorous litigation before the board about the decision to close b and that's a very complicated area of the law and obviously this is if i they have to continue to bargain they do contract or a contract with the union the oil well in that case your honor that would be the situation where an employer has gone out of business there is there is no employer there there are no employees and that's a permanent situation or the case of a council let may very ad let's suppose hypothetically a pandemic hits and the employer says to the employees very sorry i have to let all of you go and that situation continues over at a several year period in the last the employer hopes someday in the future that maybe it can resume operations and so it does not officially disband the business but effectively goes out of business without any formal dissolution of it all right so deal with that hypothetical well your honor there would still be all of the attendant bargaining obligations if there was an incumbent union there in that would be subject to the parties to sort of work out obviously if the employer just went ahead and did all of those things there there might be a violation of the act there no no you you keep missing the point by reverting to that at what point when there are no employees out what quite after a period of some years assuming there are no employees and further assuming there are more and ever an the board come to the courts to seek enforcement of a bargaining order well your honor i think that would be then as in the cases the company has pointed to there would have been a finding of fact by the  board that the unit is empty i mean that's the cases that he was talking about kirkpatrick and westinghouse and rice growers that you would have had separate litigation that point and that would have been contested and there would have been a finding of fact which opposed the general counsel moving for summary judgment after they the failure to bargain occurred so it was opposing summary judgment was what the theater did here and the board this hadn't changed much since the time a decade before when there was a bargaining unit and i went back and read that testimony and i think the board has mischaracterized the testimony the basic business operation model continued it had not changed but the wang was saying at that point we don't have any employees we haven't had an e a since two thousand and fourteen and even in two thousand and fourteen they weren't our employees for a variety of reasons i don't want to get into that but their warrant and people so  order to deviate from the rule that judge sarah's has articulated and the rule which i articulated the board relies on to have its precedents which are couple here well respect fully honor those are the on point cases for determining voter eligibility in the context of of the theater our decision and noted that the julliard school was unique from employers and see it or industry because as it was a theater school and because it had  n educational mission it retained on a part time basis a number of people who were determined to be employees the way is not a theater school on the boards on language juilliard does not govern as case well your honor i don't see that as being the dispositive because kansas city theater was was not a school but it is applying juilliard in a similar situation where we have the difference yes employer in kansas city have a consistent workforce with a predictable yearly fourteen so all the way up until the people who voted in this election because of white chris mists and and any in any so all of those that have been going up and then yes we have for whatever reason nobody brought any musicals to the weighing theatre in two thousand and fifteen other than elf where the producer did it itself and that's essentially then where the the record ends because interestingly at the time of the hearing which is you know that the board is stuck looking at what is the hearing the record evidence here at five minutes remaining thank you at the time of the hearing of the companies witness was talking about that there was a musical so the hearing is january and he's saying there's a musical coming in april it was going to be the wizard of oz and we don't know right now we they might ask us to hire musicians we might not and it could go either way and so looking at that question of is the consistent hiring of of these local musicians we have it consistently from two thousand and nine to fourteen and then at the time of the hearing looking forward there is a musical coming down the road where they might once again be years well you're out of there the hearing closed in january of two thousand and sixteen at which time it showed that after those november and december fourteen performances no one had been there had been no further local musicians years and if this was really and it would be appropriate to to look at the last six years it sounds as if that might be what the supreme court was referring to as an unusual circumstance it was remanded at the board's request on the joint employer situation it's been a long time lease counsel represents the no one has been up to six years well your honor i think what the the board's position how this should play out here is because obviously what we're looking at is is is time dependent the refusal to bargain is back in is in june two thousand and sixteen and so obviously there has the appellate proceedings in this case back and forth have put doesn't in a the position of having a lot of hindsight how things have played out but in this case looking respectfully now enough and certainly back then there's still the board's position is there was an unlawful refusal to bargain at that time and in this case and i would you know point the court to telemundo where the employer in that case was saying kind of a very similar argument your honour's you need to look at how things have developed the three people that the union is representing here now who went by the acronym t d s they're all supervisors or managers now so don't enforce this order against us and the court said we are looking at the record as it was developed in front of the board were you're making these extra record claims that these people are all supervisors now which would essentially go to the same point it's a null unit if they're all in fact supervisors that the units not all but what you do in that case is there there still is the unfair labor practice the order should still be enforced and then there will be subsequent proceedings counsel here or the employer here is is represented by experienced counsel in in any subsequent case and maybe it doesn't even rise to the the level of a case but there can be subsequent litigation in front of the board or are coming back to the board through various mechanisms to say ok yes the who the court enforce the order but here's where things stand now it would be very similar to a case where council was here saying the theater just burned down a couple weeks ago and so we're not going to reopen don't enforce the order and my argument presumably in that case would still be the same that they still unlawfully refused to bargain all those many months ago and then after enforcement that's where there are post and forstmann processes where they can come back and sensually on a new record or it in a non record sort of proceeding show the court or show the board the theater is burned down where we've decided not to reopen it  because interestingly here as to prior hypotheticals i don't believe the way in theater has said that it will never source these musicians again that it's gotten out of this you know if i for producer once the pandemic lifts says we'd like to bring our shows again but you know what we don't want to bring a lot of musicians because we're still in a post pandemic world could you provide all these musicians i don't think the company has ever heard the feeders ever said it will never do that again else right well your honor the board's position is always that if there's something that's concerning the court it would prefer a case to come back for further fact finding and that's  and if i may finish that point and that's essentially the point here but to the extent there needs to be further fact finding i would again point to telemundo that that needs to happen in any subsequent proceeding because that would be essentially a finding of fact there needs to be a factual finding that if there is similar to these cases that they point to the board needs to find as a matter of fact based on a record that there are no employees and it's a permanent condition and it has been for whatever period of time the board of the may i ask a question let's put aside the whether the order was enforceable in two thousand and six king because there have been no employees for at least thirteen month period put that aside are you saying that the board a lacks the authority or the power to reconsider jurisdiction what i'm saying is i thought mr talegaon had tried to bring before the board the issues that there continue to be no employees and the board refused to hear it on the basis that they were looking at was the time of the and foresman order and then the unfair labor practices order there seemed to be a suggestion that because there was a petition poor enforcement the board could not consider this you have said repeatedly and foresee order if things have changed have them come back to the board and petition the board for relief at that point i'm just trying to understand what you think your power is well your odds are if it's after enforcement in this case then then there can start a new preceeding what you're the the new proceeding it could take several different forms or honor but but because the preference would certainly be because  board's position is that there has been a violation of the act here and so that that should be and enforced and then in subsequent litigation the issue about future bargaining could i ask you to make an then asked you what purpose would be served by a rematch and if you lose on the end national issue of whether there were there were two employees well because the remained with them presumably permits the company to ask for the record to be reopened which it has it did not do when the case was back in front of the board during that period and  make the put in the evidence in a proper type of hearing of where things stand now the last time any evidence was proffered to the board was in the company's aug nd two thousand and sixteen opposition to summary judgment and that was the last time any type of evidence has been proffered since then it's the company has essentially relied on what it supplied in that august two thousand and sixteen opposition and evidence at the certification stage there must have been right there in the goings well at certainly even at the time of the hearing there were no musicians at that time at the time of the hearing at the time the petition had been filed that's correct it had been the thirteen months all right and at least as of two thousand and sixteen i think well that's always been a part of the case i that's always been part i mean we have to assume that you have it does so it's because there has been a change in that situation is that something wrong with that  well your honor i don't think i would the board would know if if for hypothetically speaking the company had in fact hired a bunch of people and twenty one thousand that that's not something that would be in the record well your honor i don't think we would have respectfully if the board litigates the case on the record from the hearing i mean this would this again would be the telemundo situation where to the extent as  an intel mundo that the three employees were now supervisors that all gets litigators essentially on a fresh record in whatever case comes next another unfair labor practice case unit clarification type proceeding but essentially once the hearing record's been closed and in this case there's never been a motion to reopen the record including after the courtroom and if the last time the case sat in front of the board while it considered  know with that you do they have to wait for the end family practice after the if they disagreed with the certification if wang disagreed with the certification from weighing have appealed at that point or just weighing have to wait for opinion never going to have employees again given all the circumstances before this hearing we requested the board agreement that we could file an affidavit to supplement the record to show that there had been no employees the board objected would allow the possibility that the musicians union which try to force the weighing to stop doing business with any producer that didn't hire local employees and didn't do as you are sick that doesn't put aside whether the demand for bargaining which not convenient if the if the union is going to start trying to create a hot car broke laws between waiting and the union there aren't any employees now i represent that to you i want to put an affidavit the port jack that so that it's been six is no prospects of future employees there's no reason to remain and the case thank you thank you that concludes our event for today the session of the honorable united states court of appeals has now recessed until the next session of the court god save the united states of america and this honorable court counsel you may disconnect from the meeting