minutes rebuttal if i may case involves several issues obviously only answer any questions that you have on any of the issues but we'd like to focus our horrible argument on whether the test point for which mr reed was terminated was protected under the national protected to the analysis of militias we untrue supreme court this court in the board of all consistently held better lawyer communication to a third party only maintained section seven section eight protection if it indicates that it is related to an so do a comparison i came out i became a representative for a local union he signed in as representing myself and the local i b e w local sixty nine so why isn't that why isn't it good enough just on the first prime is experience as a union member yes i'm accountant i'm just trying to understand what your legal rule is for why this is not in your view collective action just that first probably the test yes i don't think it's  concerted because he testified again just to his own beliefs his own testimony and didn't bring up any employee concern but i'd also like to have your honor if you find it concerted i think this court has said that even if to focus on today with the two prong of the jefferson standard because he did not indicate that it related to a labor dispute in any way and i think this court has held the supreme court got to he had to make a parent on his communication to the third party was going on but to communication didn't make it apparent that that it involved a labor dispute so i think people reading the testimony people hearing the testimony being you're putting on the testimony they don't know that it's a labor dispute and i think this court has isn't the senate committee i think the main attendance yes that's the main hardiness but it's also public and it's also recorded and there's also media people there and you and then the senate governor's notice to the two committee hearing was that this public health issue for texans in that's what the for him health issues relating to smart ok and then on the public health issue  and in firing for cause wouldn't it be the burden of on court to establish that notwithstanding the right to engage in concerted action on the part of a union leader that hold that he had to adequately indicated the relationship to either an ongoing labor dispute or mutual aid or protection of employees then the question is what next and who bears the of protected but better protection will go away under the labor law based upon certain shellings where those factors are taking protection away are part of the communication that is all an affirmative defense that is part of the employer's berndt of proof to bring to the board but the general counsel before the board has a support burden of proof is the first step whether it's concerted and whether relates to defense not in the sense of affirmative but in the sense of just an ordinary defense that knocks out an element of a claim and it may well be the employer's burden in all or in part but in her mel it was undisputed that mr reid was fired for his testimony before the committee that's not something there's no motivation issue we know what the motivation is so in my case with the board to answer was whether it is conduct was protected in bed whether started with a story about how he had gone to a low income customers house how he had to explain to this customer that there is damage to this customer's property which was part of this meter base and that they would have to pay for the damage that was  our complaints about management telling the employees to do to lie to customers and those sorts of things that were usually there's no evidence that there was bargaining about those specific steel but that was an employer telling an employee each to do something that employees didn't want to do and i think it's pretty self evident employers don't want to have to lie to customers or make misrepresentations what in his testimony for the jefferson bronx or not for that protection on collective activity answer directly it's fairly similar in fact he started out with this complaining about having to go to customers are known for being direct t v the employees there tailored their message to their audience he said you customers are being lying to me didn't say we were being forced to lie to you ok for employees to tailor their message to the audience here mr reed realizes that there is more customers who are covered by the senate committees jurisdiction and there are employees he makes his complaint about according to this woman's house and explain to her that this tailored to the audience because the audience was not looking into labor problems was looking into customer health and safety wasn't looking into this an employment matter at all and so he comes in and testifies about customer safety and customer satisfaction  that's how that shows that he and the union are that's why the union and oncor are in a battle about these matters that actually has nothing to do with safety of the consumer as opposed to safety of the workers when you're on the move i don't believe that the committee hearing explicitly stated that it was about sixty of consumers as opposed to workers workers or are people too and the overlapping pursuing the overlapping interests of the workers and the homeowners and here there's a long history indeed a history with this committee of testimony regarding smart opposition from the union on the part of workers and that this is this is but the latest iteration of testimony before the senate and including presided over by mr kernan side not r customers at no charge that did that they're talking about what the legislation is that leaves things up in the air and and requires this one year extension is that your understanding and can you tell us more about the connection between expected something to change or something more needed to be able to bargain again in a year after that change it taken place but it's not clear exactly what that was the testimony doesn't say wh either in determining whether it's protected in the first place the disparaging comment would be considered good in determining whether it has lost the protection of the act which is the employer's  and there's not really any and so there's a question about the link with the collective bargaining which is somewhat opaque but if it doesn't connect to the collective bargaining it would suffice if it connected for the purposes of the first part of the jefferson center test it would suffice if there were a connection to the workers interests in safety and not being yelled at by customers and without for that ray yes  is part of the first initial start has to under or not it's protected the board addressed it in that context where the standard is different where the standard is not related to necessary it's not the same balancing test that happens under jefferson standard  sure your honor there are there are a few in the case law such as let's see there is one there is one case you know five star transportation where the border town which was go testify just here's my information i'm an expert i do this every day let me tell you how it works here's what's going on doesn't mean i'm going to dispute doesn't affect my relationship with my employer even if it's something of interest to a legislature that can happen all the time my  the audience has to be on notice that not that it relates to something that the employee does because as you just said that will be every case almost every case will be something about what the employer does the employee issue is not is going to be very customers an effect that has on their work environment within a year of this is the legislative context just to remind us because my understanding is that there was a clear  there you know killing our jobs and by the way trying to get allies there they're terrible for you to homeowners what is the state of play a bit on that in this context that would have been  most cases where union is lawyering or when an employee goes to testify and things like union alot of all at the time as testimony and i'll give you six months before six months focus of jefferson senator and how likely the audience is to take this with a grain of salt here again the second part of the second part of the balance in the level of disparagement he's not going out and being flyers on  this was going on  that there were some fires started by these bases and or meters yes your honor so there is some factual grounding for his testimony yes or no record yes how fragile are they because of the jefferson standard two prong test and i should use the term lost not fragile they shouldn't be fragile and i want to really focus on judge millette question and judd williams question because i i think there's an airplane between the well i'm not on your understanding of that first prong and it sounds to me like it's completely redundant of the first problem getting this stuff protected in the first place it has to be collective  referring to the various hearing that he says is related soon to i'd like to know more about does your view is that the relationship between the one year extension and whatever pending legislation  i don't entirely i mean i see there's these two lines here one if it relates to collective bargaining and two if it relates in some other way to employ the interests and protection but and i that the board has relied on those two as alternative grounds and with one of the members dissenting from the from the leverage point on the click to bargaining connection the employer says well deal done on october the eighth we win it is not realistic but he wanted to do that doesn't get dead done does go to boston and the committee to the legislature can put two and two together there they have common sense they know that the union the union i b company is about to get up and they did get up and they talk and i'm in favor of smart meters and you ask who was the audience the audience was not just the legislature it was the public and was it on car guy who was sitting out here about to speak and who went back and told on him by saying hey bobby really testified you want to listen to what he said and so when you asked whether or not his disparaging it could hardly be discouraging when when when  manager of the union to legislative staff the prior year talking about how the union is working diligently to get h b thirty two zero five two which audience i notice and i'm here testifying about a dispute with my employer as opposed to i'm here whistleblowing about a problem for consumers that i happen to be a firsthand witness to two minutes possibly he could have said i'm here for the union i want to tell you the union has historically had hazards of electrical arcs it's not disputed the safety of the new devices to workers was one of the reasons the union's attorney informed reid of the upcoming senate hearing supervisor anderson admitted that they were told my complaints and then there's another supervisor who who had knowledge that so i take it to be overlapping it is both a consumer homeowner concern and it is a worker concern whether or not directly related to the collective bargaining it is something that the union cares about on the behalf of its workers is that a different theory from the one you're proposing nor intrusion into a concern so we're concerned of there was a barbara why not i mean that as i read direct t v the the interest which is a quite understandable one is in allowing those who hear this testimony to put it in context so that they know the interest of the person giving the testimony oh well he's a labor leader we know he's against this computer cutting into his jobs or you take what he says with a grain of salt given you know this battle against smart meters period and that makes us look differently at it from for example if he is a technology expert or a doctor in the local emergency room he doesn't have that interest so we're going to say wow the local emergency room doc is down there testifying about safety issues i as a homeowner might be more concerned so i think it was my my question is a little bit more general which is should we look at the testimony in the context that would be known to a reasonable observer because the logic of  problems but i'm trying to parse out separately whether you think there is evidence of disloyalty that wouldn't depend on the degree of on truth of the statements is there some other you know he's not saying to people you know boycott this company or they're a bunch of crooks in the accounting office he's talking about a very disputed question i understand of the functionality of and the benefit to homeowners of these two leaders and that's where you find th little standard even if it's true which we clearly states not but five star transportation case from for instance it may be well intentioned but that doesn't make it protected but it was a disparaging  all of which are present in this case and analysis of whether it's true or not wasn't one of those fact i think it becomes even more serious and more aggravating as in this case where there is no underlying tru