the first case we'll hear today is ever warby vs eight hundred river road it's got to dock in numbers eighteen twenty three thirty six or eight hundred twenty four twenty six important it made clear that the record was not developed regarding the issues that should have been prominent were back today because the board failed to follow the course instructions and misapplied to great pains to enter and use the same record that was undeveloped to come up with the and our position we stood with the record that they said was insufficient for the case and pointed out what was in the record that showed that there was no motive or no intent to discredit you not pity why you said your brief a few times i therefore mean that if they want if they wanted to get issues that were determined to of the issue that they were trying to present which is that we had that we were in violation of the act and they would need to present more out more evidence of inten specifically and i think that goes to the instructions that the court provided when it said it is a threshold matter that the center that the court to determine with excuse me the board to determine whether the center engaged in one of two types of discriminatory conduct which could have an adverse impact on the employees or factum employees one is if it was determined if it was inherently destructive if it was inherently destructive then in that situation they would have to show motive they could simply affirmative this is not an inherently destructive case these facts don't match the same type of fact as an inherently destructive if they in turn found that it was comparatively slight affect the end and the employer failed to come forward with a legitimate substantial business reason then and at that point they basically explained there were two exceptions and this doesn't fall in any exception now what the board went on to do instead of applying the test as instructed is they simply determined that the conduct was discriminatory and had an adverse effect on the employees but there's no testimony in the record that the conduct had an adverse effect on the employees they rely solely on the foreseeability of what actually happened there's nothing in the record that says that one of the employees one of the employees that was a voter eligible says thought that we want going to get the benefits or or we were told we were going to get benefits or we were told that it was because of the union there's no testimony like that so what they were lying on is foreseeability and foreseeability is really reserved for inherently destructive conduct that's the whole point of it it's conduct it's so egregious that that you have to foresee that the employer has to foresee that it's going to be a problem it's a burden shifting i'm afraid you're what you're basically advocating is what an adverse effect that had some type of adverse i would always establish was it i thought i thought your argument was sort of this is analogous to what we see in the mcdonnell douglas i know it's great danes different but it analogous i think because you've proffered legitimate reasons for doing what you did we had and i thought your argument was they haven't come forward with any evidence of motive a pretext to undermine your to legitimately reasons that you've prof isn't that your argument is an argument that the first part of the argument is they didn't even get to the point where we had to they didn't get to the point where we had to produce a legitimate substantial business reason that's a pretty good burden but if you want yeah very light well let's assum outcry after you change the policy in january i'm sorry seizing the outcry because of the policy that change in january there was a pa was your first your first articulated reason was we change the policy in a detrimental way the employees are very unhappy so we had to switch it back and the employees were dropping out of the plan so we made a change to do it and that's a stipulation in the record that is a stipulation of the record the other thing that's in the stipulation that that's in the record is how we announced it we did not announce it to the voting employees we took very careful steps to avoid having the voting employees know about it in our affirmative defense in our answer we specifically stated that the center had an obligation to a frame from promising benefits during the critical period a legitimate business reason is we were trying to preserve the integrity of the election so we believe that we did come forward with an evidence and i think it would be and i think the board's position that we get not come forward with enough evidence is inconsistent with this cour decision where it said that the record had not been developed regarding the issues that were determinative and this court could have done exactly what the u s supreme court did in great danger if there is not been any evidence of a legitimate and stansell business to reopen the record that's what your points there what would you put in if you had the opportunity what we would put there's a couple of things first when they were actually putting testimony in that would show intent we would cross examine their witnesses and try to undermine a credibility that would be one thing the other thing though that's tantamount to saying it's not your burden right well that was the first thing i would say and i do we do have a we there it's their burden once you've articulated these  want to cross examine their witnesses when they come forward and say here's the here's the evidence of elusive that's correct in addition what we would put on the evidence is we would put additional evidence as they pointed out of the rationale for why we did it we could provide testimony from employer the employer's witnesses we would also be prepared to bring in witnesses on the insurance industry to talk about the timing issue and it's not like you can in this type of situation you can't just wave  what's really at stake at this point just the mere fact of a violation of one of the three well i think eighty three there's there's a violation of eighty three of having but then found to be discriminatory  and the actions that it took to the company did attempt to take the appropriate action in this situation and believe that the board has a burden to me i think from from another standpoint is if you what the board tries to do is even if they they say basically if you did come forward with a substantial legitimate business reason we just don't find it legitimate and what they rely on when they say don't find it with gentlemen is a go back to that foreseeability and i'm not sure your answer and i'm interested in judge your question what's the practical upshot here is it is the principle thing is there money at stake you know what are some money at stake most of us the principle of setting a precedent ye and basically what they did is they try to marry the inherently destructive conduct when it doesn't match the facts here if you look at the cases that they cite they cite cases like pacific water and gas great atlantic and pacific florida steel and in the facts as the board presents them in their opinion makes it like there was a center wide announcement where all the employees knew about it and all the employees knew they weren't getting the benefit and that's really more kin to these cases that counsel asking us to do is to take a huge leap and to find that we would have to foresee that we would take a memo that we would put in our below that somebody would find it that those people would glean from it they weren't getting something and they were  that's correct say what he made of the letter but it did not finding does buttress judge siler point that you know you might put things in sealed envelopes or whatever but when you send something like that that important to twenty five people the others are going to find out about mansur it's possible that they will find out but the record doesn't the record doesn't show that they offer and the record doesn't show that they thought there was an adverse impact then respectfully to answer your question there is money at stake there is a make whole remedy in this case the board so obviously as with any board decision the board has a vested interest to to tional interest in having it enforced but in terms of the actual employees at stake it's the make whole relief for the period of time between march twenty third of twenty twelve when they supposedly got it sometime in thirteen and then six plus years worth of compounding interest computed daily ok so so there is a very did the board follow the instruction of this court to open the record to examine what the motives of wood chris were well there ya know there's two parts to that one respect i don't read in the board to not read the decision as requiring the reopening of the record the company never made that argument to the board in its position statement that the court had told it that argument didn't appear until its opening brief but i but if it does a real open the record it's got to cite something in the prior record that it made glonass or to be a motive letter and here is they articulated a legitimate business reason and i don't see anything in the in the record that reason there's nothing it's a legitimate reason there's one thing discriminatory about it's a business trees where on a bat's the great dane test first looks apa conduct that the analysis of what their justification for is then when the burden has shifted to them which it did in this case as i'm granting you that i'm assuming that the burden shifted to them ok i guess and now they've they've proffered two reasons right in the first is we changed up the terms of the plan and not just we would chris but the entire system right changed announced the change in terms of that plan the  employees were upset about that so they were going to change it back that's a legitimate reason an i'm scouring the record i'm not finding any finding by the board or indeed any evidence to undermine have the board doesn't make a pretext finding i i believe a former member of pearson has concurrence talks about that but i just read your in your view there when they when they articulate this legitimate business reason your view is that the board can simply say no it's not and that is sufficient to undermine their reason no your honor what i'm saying and what the board said is that in this is consistent with great danger in which frick is that you need when we're fighting about motive and i believe that's how they open this is a case about motive they need to indeed articulate a substantial and legitimate justification so they they couldn't come up with a plainly illegitimate motive but then because we're talking about motive a need to prove the tax what was actually motivating them at the time that is their burden their the board has on this they have a stipulation in the record that says that this happened while you're under debt stipulation well there's two points first that goes as to why they decided to make this announcement that separate them from then why they withheld but but the evidence that they're relying on is not supporting the justification that they're now presenting bearup argument throughout their brief is that the plan is viability was at stake in so it had to make this announcement and it had to make these improvements the record stipulation simply says some employees dropped or changed their coverage let me ask you that that respectfully does not go to of support the argument that the viability was at stake in the second point being that while that was in the stipulation that what they did there still that that was motivating that that where is the relevant testimony from anyone involved that we made these decisions because the viability is at stake which is the argument that they're that's the justification they're making not that people are complaining they're brief in reply brief or very clear that it was because the viability of the plan was at stake it had to make these changes the stipulation doesn't go to that and it doesn't actually support directed the board to reopen the record doesn't appear until their opening brief and indeed going back to the colloquium before i kind of wonder if during the company the center's opening argument it finally start indicating what evidence it would actually have put on in their position statement in front of the board besides not saying that the court had directed the record to be open all it said was if we lose then you should reopen the record there's nothing in there consistent with board regulation even if no motion assuming no motions required there's nothing in there saying there's no proper this is the evidence that we would put on but it's the board regulation i'm sorry the board regulation governs reopening of the record and it's cited in our brief and the the regulation as twenty nine c f r one zero two dot forty eight c one and when a party wants to reopen the record it must state mitchell in the briefing your argument is that based on this court's remit and they could prevail on remained without reopening the record but they could lose unless the record was reopened and the reason for that was because they had already shifted the burden to the board i mean babe might be making those arguments but i respect we don't see that it all comes down to whether they shifted the burden really the the stipulations were sufficient to shift the burden then you would need for the board to prevail you would need a hearing so that the board could carry its burden but i understand your argument is that never happened because these stipulations were insufficient to shift the burden they had to proffer evidence in order to get the benefit of that burden shifting is that the essence of yury correct your hon r first that i am i would be speculating whether if the board had in fact found they had met their burden whether the board could have on this record still come back and said we find actual evidence or specific evidence essential it up to rebut they are evidence so i don't know maybe the board could have but it's also very likely that the board at that point would have reopened and i also want to be clear just for the sake of argument that although the stipulations been much talked about in their brief they do rely on this testimony of mr rhys steele so there is more than just the stipulation that they will lie and in our brief we go point through  point expanding on the board's reasoning as necessary based on their opening brief to go through how that evidence is either essentially not going to the point that they're making it doesn't support their point or really to the fundamental point again that this is a case about motivation and and where the board has met its obligation that this was discriminatory conduct to could personally affected employee rights to some extent and now it's up the burdens on the company to show that it was motivated to the employer after the board gets this inference of them off the boat and great in the supreme court and great dane says because proof of motivation is most accessible to the employer that it was in the position to put on these people from the health insurance industry and decision makers saying we have to make this decision five days before the election because of x and or emails or any type of contemporaneous documentation or testimony going to that it was actually motivated by these reasons transit lines from the score that that burden on them is to basically is to put in evidence proving that they were in fact motivated by a good motivation and then the burden of course would have shifted back to the board to show to then make the threshold determination about whether this was a terribly destructive or comparatively slight and then to say ok yes you've you've proven this but we have a trump card or game over but it isn't clear evidence of a record of out this way her testimony simply shows that these and that the memorandum announcing these improvements were included in employees with employees paychecks who were going to be getting at her testimony despite the fact that brief constantly talks about sealed envelopes her testimony says nothing about sealed envelopes her testimony simply herself testimony sheds no light on the found dacian that the weight that they're putting on it that this was some special secret as opposed to many places where i've worked if there's an announcement it's put in your paycheck envelope sometimes not necessarily even see it was just a closed envelope with your paycheck and an announcement so it's your position there's no evidence catherine hansen on behalf of the intervenor live in one thousand nine hundred morning the first point i'd like to make is that the employers burden under great dane is to establish a legitimate and substantial business justification for the discriminatory conduct that's issue here that is the benefit withholding and not the decision to improve benefits system mind in fact because the employer had a reason for improving the benefits system that is precisely why they were required to improve them for the unit employees at the very same time they did so for all their and waited with it if they had done that they would have been rightly accused of suspicious timing of trying to influence the election and they and they argued that they said we were trying to comply with the law were they were socially as i understand their argument they said we're trying to thread th got employees that are outraged or said dropping out of the plan because of the january announcement and they they do of effectuate the change at the other three locations  prior to an election does not create an inference of unlawful motive precisely because it is presumed that a decision made system wide was made absent considerations of the union activity going on at one facility the d circuit on facts exactly like this reached the same conclusion when asking the third circuit to reach here and said specifically you know there was no basis for confusion here that companies states no case to show that it should have was or should have been confused about what its obligations were under the law and this court in ri manning said if your argument is that you have difficulty in the gap navigating the law that's not going to save you here so the  question for the court under great dane is whether the employer presented a substantial and legitimate business justification for discriminating against unit employees by withholding these benefits so while i don't think the evidence supports th viability of the plan was at stake it's also not relevant to why they withheld the benefits from unit employees or any of the only the only thing that can save them on that is complying with the law and you're saying that that's a legal  fallacy because if they had studied the law they would have known that the system wide change would have insulated them from an allegation that they were trying to influence the vote absolutely and not only that this court has held consistent with foreign law with court approval for years that a difficulty navigating the law even if honestly held is not a defense to discriminatory conduct but yes i would argue here that was absolutely no basis way that would cross failed to assert any proper motive and then at the same time in its opinion criticize woodcrest by saying it's asserted moated that it's asserted motives were unsupported or illegitimate you can't do both of those chance under great dane tell us what you would say they came up with some post hoc explanations and the board said there's no evidence of that but even if there was those would not be substantial and legitimate business justifications sufficient to rebut the inference of unlawful motives the board says i'm sure in appendix thirty four the inference of wrongful motive is left intact that the employer did nothing to rebut the frames created by discriminatory conduct that could adversely impact employee's rights and so you know i don't think there is any reason and i don't think there's any fair reading of this court's decision to say that the board should have let alone was required to reopen the record when the proffered reasons were not the gentleman and substantial business justification it particularly in light of this court's footnote that says you know don't come back to us with a difficulty net navigating a law that's not going to help you here and the  board's determination about what is a legitimate and substantial business justification is entitled to extreme deference and the employers don't cite any case to the contrary so under great dane i submit very straightforward case discriminatory contact that could have adversely impacted employees rights to some extent no evidence of a legitimate and substantial business justification therefore the inference of unlawful motive stands and the conduct is a right to change the point but she points out that it has to be just you have to justify the differential treatment so in other words it might have been fine for you to change the terms of your plan but you can't change the terms of the plan for the uncovered folks and not for the covered folks well what's wrong with that that seems like a logical argument because we would have gotten a charge for for trying to interfere with the election aren't there then that's why fire a say so with that tells us i think is that you must rest on obeying the law as your justification that is our justification ok so the other ones set aside your saying we had no choice but to do it this way because we would have been hit with an unfair label label practice for trying to influence the election the reason we put forward the evidence about the dog and had really the plan is to explain why we made  decision but why we did what we did while we discriminated was because we were trying to maintain the integrity of the election which was in our form the defense and the answer we are in so the whole case comes down to whether that dovetails into their argument that you could have taken advantage of the safe or you know this court already explained it the safe harbor can't be used as a sword and and the the act does not guarantee there's a serious case made of the facilities case says that the act doesn't necessarily guarantee that the company's going to make the best business decision but that that business decision is not going to be discriminatory or anti union