matter request to reserve two minutes three minutes i'm sorry for rebuttal this is now you know our practice is you'll need to pay attention to your clock and make make sure you can save yourself sufficient time i will do my best ok this is an appeal from a decision by the national labor relations board finding a violation of eighty one of the national labor relations act arising from the ten day suspension of the individual charging party  in november of two thousand and sixteen taken together the questions and issues presented posed the following inquiries for the cork for decision first does the national labor relations act properly construed and applied insulate an employee from the disciplinary consequences of a failure to engage in discussions with the supervisor and other serious policy violations because he had engaged in arguably protected behavior five and a half hours earlier and from our position the answer is no no such cloak of protection exists and applies to employees once they have expressed concerns they still have to behave themselves in the workplace or face the consequences of their decisions phrased converse lee the question is does the national labor relations act prevent an employer from disciplining an employee when it reasonably believe behavior in clear violations of company policy after an appropriate investigation simply because the employee claims to have raised safety issues hours earlier and again we say the answer is no and you can look and see that no other employee involved in the earlier safety issues was disciplined and the timing of the imposition of the discipline correlates to the insubordinate and policy violet's of behavior no involved in the in the earlier safety reporting were disciplined in the morning of november fourth two thousand and sixteen two bargaining unit employees rick top or and mike renner expressed concerns about performing a task i was go effort to engage in sleight of hand from our perspective the the board in making that request cites to judge administrative law judge buells order as as referring to and an objected to portion it is very much objected to the underlying complaint makes no reference to any alleged violations of the act involving anything other than mr took part in his activity so it's within that context that that provision needs to be looked at and what we have present position is the provision in the order to which the board refers is actually a remedial provision based on a claim that a supervisor had earlier talked to mr ren about bargaining issues and the judge me all said that's and the board then adopted judge mills findings that well that's a violation of the act well that's not part of the complaint if you look at the complaint there's no allegation that that was violation of the act so that provision of the order can only be viewed as a remedial provision tied to mr top or screens and we have objected vociferous lee and at great length as the court is undoubtedly read to the finding of a violation so because the underlying violation is not sustained from our perspective then that remedial provision also falls down and there is no on objected to portion of the order i would also note that exception twenty seven submitted to the board specifically objects to that factual findings and as a matter of just further reference and without giving it more attention than it is is this due within the overall scheme of the issues presented that was there was a claim at the time of the trial that there was a violation of eighty three of the act in the mr top or was picked out for discipline because of his status as a union steward judge to be on found against the union and the charge and against mr copeland against the general counsel's office on that claim that in no review aside to that part of the ruling so therefore the reason that factual element was in the trial record is because it related to the eighty three claim not because it related to the eighty one claim so we think it's far from being agreed upon it's very much disputed and it's part of the claim that mr took or was treated unfairly in the complaint so if you look at where we are today the question on review is basically is there substantial evidence in the record and to the findings and rulings of the n l r b are they sensible is the way the court has phrased it and our position is they absolutely are not the facts themselves are straightforward there was there was a day at the refinery where there was a task to be done in the morning mr top or mr rennert said that we don't feel that task is safe this is a refinery that encourages safety has many policies encouraging safety and part of those policies requires that employees raising safety concerns bring them to the attention of management and engage with management to find ways to mitigate the safety risk it's not enough just to say safety and sit down you have to engage in the contract article twenty two point  makes clear that once a safety concern is raised it's the company's responsibility to review the safety factors and to determine whether to proceed with the work it's the company's responsibility and decision under the contract so the employee raises that participates in a mitigation discussion and then it's up to the company to decide whether it proceeds all of that and all those policies are in writing in the morning of november fourth at nine thirty mr renner to mr t questions the company spent the next five hours stopping the job working with the engineering team that is in charge of providing the safe process for carrying out this responsibility and they and they made the adjustments need jaimie very detailed and specific findings with respect to all of these matters you know the l j made findings we don't believe they're tied to the record and i think that's one of the underlying problems and that's why for example at one point we literally took his findings and cited by pages of transcript as to money to show just how far afield from the actual testimony the a l j wandered but on this part of the other ruling the l j said in the morning these issues were addressed there's no real dispute and  l j also said in the afternoon those concerns raised by mr top or starting at about three or three thirty in the afternoon after a five hour interlude were in fact individual concerns raised by him individually that's not protected concerted activity in the afternoon once the step change had been drafted by the engineers and brought out to the field mr top floor was slow to respond when asked and called on the radio he came out and was unwilling to engage in a discussion about ways to mitigate the safety concern he he claimed to have to have identified and in fact what happened was his supervisors then went out looked at the process looked at the equipment said rick come on out here let's look at this let's let's talk about it he refused to engage at that point they said but it's time for you to go home you're not doing your job you don't have this cloak of protection as referred to in the n r b case that we cited in our reply brief  and he went home but before he did he refused to turn over the written step change that had been prepared by the engineering team he took it with him now he says i didn't hear a request to hand it to me the supervisors are very clear that he did hear it it was clearly communicated but regardless there's a workplace policy that says you cannot remove property from the from the plant in the facility and that includes process change documents and plant documents that are proprietary in nature the plant manager the number two plant manager michael wadley and they described the event with mr top or raising his voice pointing his finger doing and behaving insubordinate lee and in fact after that mr topper was sent home investigation took place as seven six or seven people were interviewed six or seven people provided statements as a result of that investigation the company reasonably believed and reasonably determined that mr top one had violated  regulations they determined that it was appropriate to suspend and in fact that's what they did well question sure why was it necessary to for him to be sent home that day because of the way he was behaving interact in his interactions with the supervisors according to the supervisors as i mean is that not something there's no he's not he's no longer at performing d this be a situation where he would be put on it put to work in another in another position and some sort of investigation would be conducted internally it would seem that might be a way of avoiding avoiding some of this instead of some merrily sending him home and i think i recall that that's one of the things that was cited here was the abruptness of the decision the with the respect to the record what it shows is that during the interaction with the supervisors he refused to engage in discussion that's a refusal to carry out his work assignment and people who refused to carry out their work assignments are sent home at the refinery because you need to have people who are following the work rules and not behaving insubordinate lee and then before you impose discipline so the way it is your center i'm on administrative leave not on a suspension and then the investigation determines whether that's a paid administrative leave or a suspension but in essence you have to remove the employee from the workplace not that at this time of day mr top or is not engaged in protected concerted the the union grievance went to arbitration and again one of the claims here is that was not properly considered by the board but that arbitration found the company had just cause for the suspension under the contract so those arguments are more contract based here the issue is whether in protected concerted activity and we say clearly not in the afternoon second did the company have an abyss toward what was going on and the quote that the board argued you can tell it had enemas because it sent him home well that's circular because the alleged adverse employment action is he was sent home and how can that how can the evidence that that's motivated by enemas be he was sent out it was more they rather than the fact that he was sent saying how am i have in my correct i believe the record shows it's because he was sent home not because of the abruptness acting alone or for the run out of time i'm sorry i one asked you about a possible application or borrow there's the contract requires the employee to report and then it permitted and required the company to decide whether to proceed with the action so by refusing to engage there is no inner barrel right at issue here  lauro you may proceed when you're ready thank you your honor is may please the court i am greg lauro for the national labor relations board asking the court to enforce the board's order because it's findings of protected activity and the unlawful suspension are supported by substantial evidence and reasonable credibility determinations i think it's helpful to go back to the facts underlying the discussion the court had with my opponent this morning about what happened on the afternoon of november the fourth when the board found mr top or continued to engage in protected activity and as the record shows in the board found mr toper was reassigned to this task that he and his coworker had raised safety concerns about that morning it was assigned to him and he pointed out well the problem is the step change form you gave me says in step two you have to remove these other so and so mr torpor reasonably believe that was a problem the company wasn't following its own policies and that there was a risk of explosion or other danger and as the record shows one supervisor's response was well can you mitigate that by keeping all of the cylinders in place and putting heat insulation blanket there and mr toper responded and again the board found this is a continuation of the protected activity i believe that still poses a risk of explosion and it's still contrary to company policy and i point out that was part of mr copas concern the company was not following its own written document which says remove other cylinders  area of the one being heated and that was the consistently communicated message by mr torpor throughout the afternoon it was not as my opponent said that there was this big break that suddenly the protected conduct ended midstream and my opponent says you can't state your protected message and just sit down or as they say in their brief just completely refused to discuss but the record shows it's not quite what happened mr torpor kept explaining his safety concerns when he when he felt pressured to do this mitigation perceived and this task he felt was unsafe and he also consistently pointed out the problem here is what you're asking me to do is contrary to the company's written policy and if you want this different procedure to use insulation blanket you would have to rewrite the policy that's the company's rules when you have a new procedure you have to write it out so there isn't the break between the protected activity in the morning and some allegedly unprotected activity in the afternoon that my opponent hangs their argument on and they raise a few raise a few other things that there was a five hour delay here but i would point out some of that delay it was for the company could follow its own policies in the morning the two employees were not sure this is safe but we seem to need a procedure for because the company had changed its procedure without following its own rules to write that change out it took them time to do that and then when it was reassigned to mr thorpe or he said again as we've discussed you're still not following your own policy it says remove the cylinders and so it took time to discuss that situation so again there was no break in the protected activity it was a continuation of protected activity and as to motive the board relied not just on the employer statements at the time it decided to send him home which included saying we're troubled by the fact you wouldn't do the work we told proves what oh when the employer sent mr took her home according to the supervisor's documentation they said it had to do with issues of mr torpor not doing the work they directed him to do but that's the protected conduct of saying i'm calling a safety stop and refusing to do work i reasonably believe is dangerous here we have documentation that this is a dangerous chemical that steam heating it causes a risk of explosion and so at that time in addition to that statement which is link to protected activity and i think the board reasonably found that even this idea of refusing to discuss mitigation is also inextricably linked to protected safety protest we have other evidence of motive of the kind this court has said the board can permissibly rely on what the board found was an adequate investigation shifting in protection prete explanations changing stories and really although my opponent opposes this finding that some of the conduct they relied on didn't occur the finger pointing the shouting that comes down to my opponent having to show that the underlying credibility determination shocks the conscience it's a very heavy standard to meet i submit they don't need it at best they offer an alternative view that this evidence could support of you or perhaps this witness could have been credited but they don't come close to showing  think one reason for that is the judge is there to observe the witnesses and their demeanor and have that firsthand knowledge and a lot of the credibility findings we have here are demeanor based as well as based on the fact that the company's witnesses shifted stor whether this court crude rely on something the agency said it wasn't relying on well that's my question yes i think it would definitely undermine that possibility what about your door stood before we could affirm on alternate ground if we wanted i'm saying that be up to the court if they feel an alternate ground is supported by the law on the record i'm just acknowledging there is some caution and play when the board said they're not relying on it but that otherwise homes are there some caution and play sorry are all trying to be all right at the honor but if i'm in i'm happy to answer any questions the court has about protected activity or animists in motive but i did want to respond to something your honor raised this morning as well which is the other violation that we say is unchallenged with respect to mr reiner and one reason we say it's an challenge and i think this is quite clear is that the violation is not mentioned by my opponent in their opening brief to this court this court has said that issues that are not meaningfully argued in the opening brief are waived and i'd be hard pressed to understand how something that's not even referred to in the brief is meaningfully argued and although they also point out they believe they raised it to the board the board rightly found that this was just a conclusion exception it just said we think this finding of this other violation is wrong it didn't say why and that kind of bear exception is insufficient to preserve it for judicial review but also this was a separate violation if you look at pa thing of the judge's decision it finds this is a separate violation of a threat against mr runner they also looked into whether that separate violation could be evidence of it of an additional violation against mr top or that there's no merging of this and to mr topers violation so that my opponent can say they preserved it and i'm not trying to make it more complicated than it is but i would also point out the amended complaint this isn't page j a three zero two of the record lays out violation so there's no due process issue of my opponent wasn't told about it but i just wanted to be clear this is an issue they didn't raise in their brief that they didn't properly raise to the board so they can't raise it now summary enforcement is warranted in but in some your honor i know i still have a few minutes for any questions the court has i think that substantial evidence which is the standard supports the board's finding that mr toper continued to engage in protected activities throughout the afternoon of november fourth he continuously communicated is concerned that this was a dangerous task a risk of explosion and that it was contrary to company's own policy which said remove the other cylinders and that there is substantial evidence for the finding that this protective conduct was a motivating factor in the decision to discipline him and we have ticked through it it's the reasons the company stated it's the inadequate investigation it's the reliance on shifting and pretext to all investigations all things this court has said including enrol may permissibly support a finding of unlawful motive yet we all were if you were going to just lay out to us the shifting the alleged shifting explanations what would you  would be the clearest examples of those in the record of course a few examples are when you look at page six zero one three six zero six of the joint appendix in particular actually both of those that's mr right inside  young's to supervisor statements they lay out this direction she starts by saying the problem here is you didn't do what i directed you to do and this young also notes you didn't discuss mitigation the way we wanted you t three days later they add additional allegations that mr toper pointed his finger in a supervisor's face raised his voice and it was interesting she left this out in this is one reason the judge found that was a suspicious shift and she testified that was such a striking event to her that she couldn't forget it but she left it out of her initial statement and so the judge reasonably found based on the shifting explanations that he believed one credible that that misconduct didn't occur it was a pretextual allegation and there you know and there's also and there's also the issue of his not refusing his not returning the form and the claim was you that you heard us ask this and you willfully returned and i think mr reagan side says you were right there and i tried to take it and you pulled away from me but they credited testimony shows that didn't happen the judge chose to believe the one neutral employee witness mr runner who said mr toper was farther away it was allowed he wouldn't hurt it you know could there be evidence either way could one debate that finding perhaps but it doesn't shock the conscience or it's not  to credit that testimony so that's a couple examples your honor i believe there may be others in our brief and in the record but under this court's law it's sufficient to sustain a finding that the protective conduct was a motivating factor for this discipline and that's enough for a violation right line and therefore enough for this court to enforce the board's decision so with that said unless the court has additional questions i thank it for its time again there is substantial evidence of a finding of continued protected activity and that activity was a substantial motivating factor for the adverse action given the statements of why the discipline was issued the shifting in protection explanation explanations and the inadequate investigation and if i may make one point in closing the board was not saying the investigation had to be perfect or that there's a certain number of witnesses you have to interview the board specifically said that wasn't what it was doing and as you can see from the decision in our brief the problem was how one the investigation was that you had a list of other witnesses who might provide different testimony but you decided not to interview any of them even though you had these conflicting accounts you have two supervisor saying finger pointing shouting you have an employee tobar who denies it you have a neutral employee all thin who says i didn't see any finger pointing and the investigator hastily and abruptly credits the supervisors and flip conflicting account the contradicted account without asking all these other witnesses and if i may say your honor the problem for the credibility got worse when that gentleman mr cripps took the stand because the board found his explanation for not looking and that any of these other witnesses defied logic he said well i just assumed they had the relevant information well that's willful ignorance he said well i didn't know they were in the area well miss young's witness statement said he they were in the area and he didn't ask and said well i didn't think they were involved one doesn't have to be involved in conduct or conversation to bear witness to it and on and on i would just submit it came down to credibility and the judge recently found that mr kurtz a story about why he left out all of these other witnesses didn't hold water so thank you very much  company reasonably believed the administrative law judge said what are the facts that was the improper inquiry he applied the wrong legal standard in this case the company reasonably believed that mr top or having gauged in subordinate activity there were no shifting explanations on the very day of the event on friday afternoon ms young reported to mr whitely and to mr kurtz that the finger wagging had taken place it was not in her original written document she amended the written document on the next shift that she she began so that when they say three days later this is the kind of misleading testimony that often happens it was three days later because she had two days off in between the end of the shift where she sent him home and had to get the job done and second when she returned to work it was done immediately the question is not what would the board have done as an investigation it's whether the company acted reasonably and it did not interview it interviewed one bargaining unit member but others because this event happened partially within a satellite unit partially without no bargaining unit member had visibility to the entire event no bargaining unit member participated so they can't prove a negative they can't prove and nothing they could say would save mr top or did not in a credible way waive his finger that was a determination that could only be made by mr top or and the two supervisors who were present for the entire event that the bargaining unit employees all testified that they were not there for the entire event and they could not have observed the entire event the board substituted its judgment for the reasonable belief of the employer and finally your honor mr top or did not engage in protected concerted activity in the afternoon he refused to engage in discussion and he was never ordered to do the work to which he objected all he was ordered to do the work he wouldn't do was discuss with the supervisors and because he wouldn't he was sent home and that failure is something he cannot base on a claim of a safety report earlier in the day for that reason we request that the court reverse and vacate the rbs order thank you all right thank you counsel cases submitted appreciate your arguments this morning and you may stand aside