morning everyone this morning we are all part of the something that has not been done before so you're here on a historic occasion we're doing a video transmission and i'm just hoping that it doesn't make things any harder for the lawyers you pretend that i am there because i really am before we begin i would very much appreciate if we all took a moment of silence to remember judge richard codey he whom we lost this week he was a man who as chief judge diane wood noted we will never see the likes of again a remarkable brilliant kind and honorable jurist so if we might just take one moment i would very much appreciate that i want to thank judges mannion and hamilton for being there i want to also explain that there will be a second or two delay so i'm very hopeful that i won't be stepping over the lawyers comments and my two brothers comments and you will let me know if i am so going to call the very first case today and it is numbers fourteen three seven two three and number fifteen eleven eighty seven contemporary believe that these you mr bernstein is it not come on good morning mr bernstein good morning ron you look great well i guess the camera must be a little blurry on your end them not at all it please the court my name is steven bernstein i represent the petitioners cross respondents in this case this petition seeks to overturn several findings in judge carson's two thousand and eleven decision as affirmed by the judge carson actually found in favor of the employer in the majority of complaint allegations brought by the n l r b but of those that went against the dealership my plan here is to concentrate on two in particular as it's our contention that they are not based on substantial supporting evidence and because the resulting legal conclusions have no reasonable basis in the law those two issues in particular are the finding of discrimination in connection with the layoff of an employee name anthony roberts in the fall of two thousand and eight and the finding of the refusal to bargain with the resulting back pay and reinstatement remedy with respect to layoffs that were implemented in the spring of two thousand and nine our primary bone of contention lies with judge carson's decision to impose a retro active barg obligation along with reinstatement back pay in connection with a laugh at those four technicians which is our contention were caused by an economic downturn the likes of which the retail automotive industry had never seen judge carson acknowledge that the economic circumstances confronting this business were dire and real which suggests that no amount of dialogue with the union would have changed the fact that for service technicians needed to go on layoff if the remaining twenty nine were to have enough work to survive mr bernstein if there had been bargaining on that layoff in april of two thousand and nine would the subject have been limited to simply whether they were kept or not and if so which folks would be laid off or would you have expected as an experienced labor lawyer also that there might be you are getting on such things as recall rights protecting seniority and other sorts of provisions that could help police folks who are laid off in tough economic times it's an interesting question your honor because if we were to transport ourselves back in time to that period between the date of the election and the date on which the l r b conferred initial certification my understanding is that the obligation of the employer would be limited to a duty to argue over the effects of the decision at that time rather than the decision itself and that derives from the seven circuits decision and sun strand which  focused on the effects based bargaining obligations of the parties so my understanding is had the union requested arc in response to notice that the parties would have been focused upon the impact that i was last would have on the four involved so what's the answer to my question and the answer there would be effects only not a decision all the effects being things severance pay for exact exactly severance pay we call rights seniority continuing benefits and that sort of thing right yes or so even if the economic circumstances would have required the company to lay these folks off at least you know if that the technicians who were paid only for work completed as opposed to our early were how could there be such an economic that witnesses who testified described as an entire collapse of that service department certainly my ponies pointed out that collapse had its genesis in circumstances that occurred months before but the fact show that my client over that period of time was making its best good faith efforts to avoid the possibility of a layoff and upon the turn of the new year in two thousand and nine received financial evidence indicating the performance of the service department showed no signs of improving which actually required to implement layoffs across all departments not just service department is our contention that by april of two thousand  essentially had little choice but to move forward and i think it's fair to point out that at that particular point in time the dealership was already in the very early stages of contesting the certification that was initially imposed essentially possibly years why why should that be a basis for avoiding mandatory bargaining well i guess i would answer that in two ways your honor circumstances  contention that operating without authority the n l r b essentially committed an alter a very exact in the form of dictating that the ballots in this case be opened counted and but for that action we submit that my client would never have been operating with constructive notice as to the authorized representative status of the union at the time this happened however you had ballots opened counted the union had one you wanted to contest that and so peril right your decision to contest that into refused to bargain on such matters until the controversy was a result of the controversy took a little extra time because of the issues over the composition of the board in the new process steelcase and so on but it's not that i don't see anything that's all that different from an ordinary election contest or your honor we would suggest that there were circumstances here that were extremely unique two in critical or the compelling economic circumstances that have been described he didn't do so what i was trying to focus on is that your new process steal argument which seems to be an effort to basically create a new exception to the at your peril doctoring yes these were fairly unprecedented it's our contention that this was not a situation where an employer was simply trying to you know avoid arguing during the pendency of a certification in this particular case you had circumstances in which the n f l rb itself was deemed to results the duty to pardon is triggered by the election results assuming that the results were were properly conducted and that the tell the ballots properly opened by an authorized board it's our view that word is where does all that come impounded and it seems clear to us that those ballots should remain impounded until such time e to the three separate units that they're each going to have to consider laying off two people in each one this was preliminary to all of this my question related to that is they only i think there were three three units or three i don't know whatever you called them that but there would have been a total of six there were only four that were laid off were they those names the ones that emerged from that  requirement to come up with names yes your honor i think your friend of the teams is they were describing a service department and you're correct that initially the directive was for each of the three teams to select two individuals from each team for layout i believe the record will show that at some point that directive changed and changed in part because one of the witnesses testified that his view it would be arbitrary and unfair to to approach this from  standpoint of teams and instead they were directed at point simply to pick the bottom six now the record is a little unclear as i understand as to how the dealership went from the number six to the number four we can make presumptions but i don't in also from the standpoint of other workers because you operate on a book time they were in the downturn there were a lot of people who would be sitting idle in the objective as i understand it was to funnel the working into those remaining and others would be out of that and possibly losing those people who were higher that's correct your honor one unique aspect of this case is the for compensation under which these technicians were operating which is are typically deemed flat rate pay through which they're only paid for the average they actually turn so to speak when they repair vehicles and in this particular case and i hope you can help me with it is that many of the arguments appeared to see a review of the evidence or reconsideration of credibility determination but under our standard of review those arguments are somewhat misplaced at least where the record provide some support as here is supported by substantial evidence and whether the legal conclusions have a reasonable basis in law and of course i know that you fully comprehend that the court will concede that with regard to one of the layoffs at issue that of mr roberts in october i'm sure the fall of two thousand and eight credibility is an issue and we're well aware of the difficult standard we're up against in overturning credibility of terminations before i dressed that i would say however that with regard to the four individuals who were laid off in the spring of two thousand and nine it's not necessarily credibility that we're attacking in fact it's it's our argument that there really is no disputing the notion that had the parties and gauged in parting and bargaining as judge carson has directed it's wholly improbable that any other outcome aside from this one would have emerge honour's point perhaps effects in the form of severance could have been negotiated but the judge himself made abundantly clear that to lay off selection process was free of any discriminatory motive or intent so it's our position under the the guides that sun strand has given us in the circuit that the remedy piece of this which again goes to reinstatement but also back pay stretching back seven years would be wholly inappropriate and th in reaching that termination seems to be making two terminations first the equitable one that it simply would be an equitable to impose what comes across almost as a double penalty from the standpoint that you're forcing an employer to go back and pay for it all knowing that looking back in time for others would have been laid off regardless and that the process itself is not a question now to be fair with regard to mr bobber it's true that we take a she would judge carson's credibility terminations but there i would simply point out that a close reading of that decision through the judges own it acknowledges that the witness on which he and almost all of his findings one just your wife's rating that which was higher than nine other employees including employees with the ratings who were not chosen to be laid off his documented productivity was higher than nineteen of the technicians and he had seniority over fourteen employees i mean i understand  all of this it looks like he was not laid off based on his inferior skills but rather that another motive may have played a role that you are on ice tonight my response to that would be that our client proffered a legitimate nondiscriminatory reason for the selection in the form of mr roberts computer skills as opposed to the skill reviews  which there was evidence of were not a primary motivating factor in the terminations along with his productivity it was his skill set my client focused upon and there is case law suggesting that it is not proper for the agency to substitute its own business judgment for that of the employer where such a reason is proffered now certainly my poet has argued that those proffered reasons were pretextual but i would submit that evidence in the record south suggests that mr roberts by his own admission went out of his way to conceal his union sentiments that in fact two other individuals were selected from my office precisely the same time also technicians neither of which is the basis of an unfair labor practice complain t and that in fact evidence that was a do suggested that at that particular time the service department was operating in a state of utter collapse with regard to mr roberts the distant when you shoe about that he was ill equipped to make that determine a nation on his own and for that reason relied upon the judgment of certain team leaders one he referred to as bruce macon another mr of us who actually testified at the hearing  union activity at that point in time in which barry hill had denied right he did and he denied knowing about that having learned about that in the presence of mr roberts was that right but carefully worded barry hill was asked a carefully worded question not about whether he had any knowledge of robert's union sympathies at the time but whether he had seen them exhibit it in his presence know that question was always proposed by me under rect exam and i do recall that that is how it was characterized and the oh it what we're arguing the the the the facts about the roberts decision we've also got all of the other eighty one violations leading up to the election we've got the timing eight days before the election as well as as well as why system only right and point you have used your rebuttal to but everyone has to keep an eye on that yellow light but i will give you a minute per rebuttal yeah thank you so much mr bernstein national labor relations board seeking full enforcement of the board's order because of as you were discussing this morning the challenges to the order fall into two categories one is the view that the board's fact based findings point supported by substantial evidence whereas as we explained in our brief the board's view of the evidence and its factual findings are permissable and the other categories that you were discussing this morning is this claim that the company had no duty to bargain at the time of the unilateral layoffs and other changes when actually the company's duty to bargain is triggered by the election in late two thousand and eight and the company's claim otherwise the company's claim for an exception to that well settled at pe underlying election to whatever claims they preserved urgent preserve for judicial review were resolved by the eleventh circuit and that's something i don't know if we mentioned very much this morning that that eleventh circuit decision was meant to resolve all potential challenges and any irregularities in the underlying representation proceeding and then third and perhaps most importantly under the peril doctrine it just doesn't matter had votes been impounded until how how would you determine how significant an economic crisis must be in order for an employer to act without first resorting  bargaining well your honor the the board would look at facts and including the ones mentioned in the case law as to whether this is an unforseen circumstance or one that requires immediate action i believe as this court described case that we cite we're looking at immediate action to stave off disaster and i think the board also properly looked at how the company behaved did their behavior match their claim yes they should be applauded for being indication in the record how long of a delay it would have caused the employee to engage in bargaining prior to making the decision to lay off the four technicians well because they elected not to bargain at all i can only guess how long bargaining would take will never know because they didn't try your honor but the record shows as you discuss this morning that there was a period of months where the company realized times are bad we might have to make cuts and very deliberately announced to the team leaders you might want to start thinking of whom you might cut and then came back a month later there's still a possibility of cuts and then to their credit they wanted to be deliberate they created a new way of evaluating the tax the technicians a new form and then decided who should be cut but all of this belies the idea that however bad the economic circumstances were that they had to act immediately and could not bargain and i would respectfully because generally you know you've got people on each side and right there's in there's no sort of occasion of the union this point well under the at peril doctrine that we've been discussing they act at their peril in refusing to were and you know in the policy for that role as well settled is that if you allow the company to assume they're going to open their election challenge and not bargain you're boxing the union in you're undermining the union by faking changes and then policies fairly and frankly the talking itself is not challenged here my opponent claims there are an exceptional circumstances justifying a departure from that doctrine but as we explained in our brief they talk stipulated on the record that the overbroad policy in question and it's no serious dispute that it was overly broad was posted or maintained at auto nation locations nationally and therefore proportionate at yes as we explain in our brief the record describes mr roberts union activities in terms of attending meetings and other things like that as well as the evidence showing or at least supporting the reasonable inference that the company and mr barry hill were aware of those activities as we explained as a couple piece factors there one is that when mr berry hill learned of the election as directed by senior management systematically called every technician into his office to interrogate them about the union which the board found was unlawful and he chose to start with mr robert which really supports the reasonable inference that he had a reason for starting with mr roberts which was that he knew mr roberts was a union advocate which as was discussed this morning is also supported by mr weiss is testimony which was credited in that relevant part and i understand my opponent attacks that credibility decision an acknowledges he has a very heavy burden the media has to show that it was inherently incredible had the unreasonable whatever standard you choose it's a very high one but here the a hole j credited the portion of mr weiss is testimony that was corroborated in part by mr barrett who acknowledged yes mr weiss was in my office frequently talking about the union campaign offering his help discussing which individual supported the union or perhaps didn't and in this particular circumstances it was not in a piece of discretion or inherently incredible or illogical as my opponent says to credit mr weiss on that one point which further supports the finding of an unlawful discharge of knowledge of his activities historically we take you back to the april two thousand and nine layoffs of the four technicians the administrative law judge so that these folks would have been laid off anyway given the economic circumstances and that the decision was not based on the unionise what would have been the point in light of those findings in bargaining well your honor the ale jay you are correct did say that the decision to lay off four employees at that time was not based on a discriminatory or anti union motive i don't know than specifically said these particular four employees would have been laid off anyway some for yes some for the point of park and again we'll never know how successful that would have been we can only speculate because the company chose to cut off the process before it started is that these kind of concerns whether it's operating cost labor wages hours they are  relevant concern here it can be and i want to be clear i think my opponent may have suggested by i apologize if i misheard that this was really only about effect bargaining but the board is very clear what's all hypothetical anyway yes but i'm i'm i'm trying to understand right appreciate your point about alternatives to alternative cost cutting measures that would save the jobs but even if the jobs were not to be saved there might also be ways to mitigate their effects on those individuals that's right you mentioned it could be laying off employees to save money per se because because of the flat rate way they were paid they were only paid for the work they did they were not costing money just by sitting there doing nothing and my opponent explained well we had too many worried about their best people finding work elsewhere and that's and that's understandable you're either but the standard is was it a compelling need to take action was immediate action required and and as the judge reasonably found there was no evidence that these purported losses of personnel were imminent it's a noble idea to preserve people but there's no record evidence showing if we didn't act and now we would have lost to these people or more to the point if we waited a little bit to bargain with the union we would have lost these people there's no record evidence showing that which means the company did not meet its burden of proving compelling economic circumstances or economic busy somebody could plan to work toward the best people they want to keep while the others remain idle in the mean that's not even brought up but if we're talking about layoffs for that purpose the alternative would be to have people stay there and not enough work comes in for them to do anything i don't know that i know that's not really argues but it does seem to be at least logical  the people who are the amount of work based on the amount of work in would keep the best people there who might otherwise wind were else will swear although in these times because it does seem to me it was a pretty challenging time for the auto industry  to find another job somewhere else so it was a challenging time but the issue here is the company failed to prove it had to act immediately and could not possibly honor its duties partner will argue they waited findings and if it took a year and it was a deliberate process why is it you couldn't bargain at any point during that process when you were aware of the ongoing months of potential need to make labor cuts why couldn't you speak with the lake represent and although perhaps the evidence could be viewed to play it the way the board viewed it is at least permissible and therefore should be accepted by the court rest he was concerned about people not washing their hands if using the bathroom and she comes in and talks about something else and then he said sort of innocuous comments about criticizing her and then he got  action coaching him in that way and a written coaching at that taken against because of his protect concerted activities which as you noted went towards furthering his coworkers and his concerns over workplace  i think we have to look at the facts over whether it was a disciplinary action that depends on how the employer does things sometimes being sat down in the supervisor's office and be given a stern warning not to do this again and that doing it again will have more serious consequences generous hauled in a disciplinary action i think we can see it what was the timing of the incident can you remind me the timing of mr cattle on his incident i believe was a little later i think in september of two thousand and nine so it's after we do believe that the deliberate nature in which the company acted in selecting employees from house while admirable in its own right also applies the idea that they have to act be healy without even discussing it with the union and against we've discussed the duty to park these two that i'm familiar with are the only ones that you're familiar with i guess you would be dealing with all of them if they were more of the well off the top of my head i'm only aware of the two cases you mention and to be fact as appellate attorney for the board i tend to be focused on the cases that make it to you and i presented to him that any others are this far yet again it's not that i'm aware of and it's likely i don't i just don't want to mislead you i can't be sure about the possible ron a couple quick points that came up just now i wanted to address specifically it's a subtle point but an important one my pony it starts out by referring to the first see ability standard as if that standard  economic necessity and there i would submit that if the facts before the court and in the record don't establish a compelling set of circumstances were hard pressed to understand what would it would further assert that the circumstances in this case would appear to be in many cases more compelling than those that were before this court in some strand where the employer was certainly confronted with a series of that but one which if you look at the lower record was confined to a different result and and that's really at the heart of one of our chief arguments because i just want to remind the court that we're up against an act pay remedy going back seven years and in our view that remedy could be doing nothing other than punitive which is not necessarily a proper remedy be imposed by this agency for what amounts to a refusal to bargain as opposed to a discriminatory act would you think the board should be required or that th of bargaining would have been i would suggest there should be if how on earth if you violated the law by refusing to bargain how on earth is the injured party supposed to prove what the final result of that would have been well i suppose one example would be to pro evidence as to what the union would have pursued had they requested bargaining through the representatives who in this case they say were not contacted the record shows however that in this case the union even requests are going until after the layoffs or were