this case is postured as the national labor relations board matter involving a duty to bargain and under construction industry rules section eight f relationship arguably transforming into a min many times the national labor relations board cases the employer has couched as some sort of you know large energy trying to violate the rights of employees this is a small business this is a small business which is being union since its inception before it even started to hire employees because construction industry rules allow that we're dealing with what is called a local union it's actually a national labor and labor energy based here in east coast and we're dealing of course with the national federal the national labor relations board so in terms of scale my client color of fire sprinkler is the small player in this in this chemistry the the question at issue  practice proceedings is whether there exists a bargaining relationship with between my client and the union after march thirty one twenty thirteen now my clients some rain collective bargaining agreement basically one forms that were provided by the union every single time an agreement was signed there was no negotiation and i think it's really important to point out then there came a point in time where negotiation what was needed at least discussion and this court has acknowledge the importance of section eight i in the construction industry the unique exception it provides and in the no overwhelming case really provided a a distinction between section eight f and section are in a relationship which is where n l r b and the union contend we have gone and i think what tends to be overlooked if you look at the national labor relations words ruling and the arguments that have been made by the l r b and the union thus far we have a complete failure to work at the rights of employees agreement forms that were presented by the union and there was no discussion of them my client understood that in order to operate as a unionized contractor that this form needed to be sorry right there was different case is just like  present if there's no evidence and oh you're left with just what we have here's the contractual vision that you know the case that it was incumbent upon the board and the union of course general council and the union to present evidence of majorities and that was not done in the states the burden was on the border under nova or the union present that evidence but that's exactly right so if that is a correct reading have happened in this case this case should have been dismissed in the investigation phase so the union would have no opportunity the union would have had every opportunity to go to the employees and say sorry cards during the terms of the agreement what i'm trying to get at in king's board said very clearly that it understood the burden was on the union but that the testimony before was insufficient to overcome the showing by the general so the question on like you know where to go all this evidence that the union  understand that right there is in this case we attempted to present evidence or in the interaction between the union and the employees and recognition demands and so forth your households and or counsel for your client was discussion on the record that we wanted to go into the majority support issue and counsel clarified that you only wanted to get the answer to this question and the  record it's not there because as you know from the briefing in this court when one employee tried to make some representation the union came back and offered all this data an opportunity to put forth its position there to present evidence but the position it was never joined what i'm getting at i'm sorry the issues never joined in other words in all these cases supreme court decision evidence that section seven right are in jeopardy and indeed the amicus brief here cites a whole case where there was some evidence put the onus on the union the board to provide proof of majority support there so what the board has said and what this court has said is there are several ways to do this and here we have started out by saying this is a very small company it's been union from it's exception u statement by order given the record here given the contract language given what the employer had represented repeatedly in these contracts that there was no basis to overcome the general counsel showing the position we're being put in is really to why have some sort of burden of proof on this issue the burden of proof is entirely with the union and the board but what about what the board said in the fire it said it's not putting the burden on the employer not at all the burden is on the general counsel to make its case and then the recognition you lawyer and he said we're working in the very specific a narrow context of section eight out of the national labor relations where this industry and the united states supreme court in ways government workers this you to ask the question and your client go on page twenty eight twenty seven when i asked a question about representation then on page twenty eight judge moore so the argument in terms of the relationship is based on the contract language and here is your response on page twenty eight yes it doesn't sound like you want to put in evidence you tell me ok quote i would like to just have this question answered and move on and  blackwell we tried to go into the issue of union support and what had been done on that front and direct examination from forty five you said it employs talked about the union very little objection and then you say i'll rephrase  well i guess i might take your position that the contract language alone is not enough although don't we have more than that here you have a contract language and then you have a fit with his fifteen or twenty years employees right of choice there's been no yes no no holder so if i'm a union person any time i enter into an agreement in the construction industry i have to force upon the employer even though the employer says i independently verified this and the union has proffered evidence of the majority supports them what most unions are doing is incorporating language like that  basis for twenty three not to my knowledge not not to my knowledge and i know that's correct so unions are frequently inserting clauses like this hoping that these cases resolved through settlement rent didn't say he was acting involuntarily when he signed all my client side of the paperwork that was presented by the union and it was when my client had advised the union well in advance that which meets the requirements of the board's test installed in fuel it states that the company they were if i had the union status as the majority representative of the employees and critically of the union i offered to show voluntary recognition by contract and one might argue that even more given the presumption in favor of continued eight f status so how can the board offer a test here that it seems to be softer than what is required for voluntary recognition by contract or not and i'm sorry  the employer is never required to authorize or to recognize the union absent an election heard or even they may do so and so here it is even a stricter standard than good faith i think good faith isn't enough right so the cases say in fact the employer recognition house and take reasonable measures to verify status for precisely the same reasons that have been talked about in government workers and things like that so in here the employer has sounds like just same contract language twenty continued until i believe two thousand and three i'm not mistaken and then the two thousand and five agreement which is critically different because it was only in a two thousand and five agreement that the union that includes language stating if you need an offer to show proof for confirmation from students that it pads the majority support of employees that language was absent prior to that so although you are correct that in one thousand nine hundred one there were no employees and yet there was this assertion that explicit assertion th actively turned its back in two thousand and five on the union's offer proof to later utilize that as a defense once at once and once it desires to essentially get out of the obligation set it entered into in the agreement so the offer of proof is sufficient i think the court the record contains strong indications that the parties had only a section eight f relationship so the i understand the breadth of the rationale of what i offer however the holding you know finding itself appears to be limited to just the scituate the specific situation where there is result instructed or that it must consider that evidence even where there is a contract language so i think we would you agree that the only evidence we have in this case of unit georgie's we're using is the contractual is other indications there's an indication that these union members as well as mr stringer i believe himself there are established as attained health insurance through the unions on's that the employees continue to receive benefits in health insurance and pension and other wealth in funds for disaffection or strong indications of a lack of majority support as was present in nova now i would also say that there are the courts concern obviously or one of the persons or honestly you know plumbing is the opportunity for collusion between unions and employers where if i  they're sitting on a conference to one table and decide the fate of their own lawyers however we think that that's not it that's adequately addressed in the overall structure of the national labor relations act if we remember that the garment workers case was not it was not a case along these lines and eight after ninety  termination it was a case of what was going on between the lawyer and the employees here have the opportunity to file both if they felt that the employer improperly recognized the union and that the union improperly accepted population and so the notion that any particular group of employees is going to have the time and resources to file one of these challenges is again within the structure of the statute not really i think a fair frame you know what's going on in this context so given that we start with actual hand in hand showing you know join in no harms why the union and employer are forcing it on employees and don't doesn't the need for some of the countervailing evidence how that must be weighed and that this court has certainly instructed that the board may not ignore evidence of you noticed significant or substantial showing or indication of a lack of support whoever is ultimately for the board to make these factual determinations and when what they are confronted with after a hearing there an opportunity to present evidence is an agreement in which the company could not be more clear and these are in the room and some are signed about what the company was being offered they were being offered in two thousand and five in two thousand and seven in two board is willing to take the employers word it these values that it has independently determine this in the board says it's fire d there are various ways the employer could have done this and there's no evidence that it wasn't done so it's sort of inverted the burden as it were and i think that's in the cases we've had to date and as you point out the supreme court case there wasn't a close issue all right there was a lot of evidence makes a prime aphasia case and while the union has the burden the employer has to show that there's something wrong with this picture it's  not it's not a good situation for the employee so in this case we have a new lawyer who testified but he doesn't raise this point so here and while it may be in a number of situation i was i was just returning to your last point i was nervous and sure if you were gone but you asked me for my degree i agree with that in principle i mean that you just take the general counsel and the board has taken the position that this contract agreement standing alone with absent other evidence properly representing his rights then what do you see would have happened the union would have had an opportunity to present evidence from what well yes the in regard the opportunity present raised and the union had either responded or the mind to respond what period of time is relevant is it union support as of the date to what you know authorization cards it had for example well that's an interesting question that is in debate i believe between the between i believe between the board and this court about what ten requires and that there is not in the case of the challenge by the congress right there's a solid case that's discussed at the first page of the board's slip opinion and here are the board found that it didn't need to determine whether or not the evidence dating back to two thousand and five could be considered under ten b somewhere between nine hundred ninety one and when i say i have employees from that her shop completely false well i mean it's it's unclear i think that i don't think i would be going on a limb to acknowledge that the first one does seem to be addictively false given that they were afterwards i had say i don't know if it was and then it wasn't more of it but after well is it going to set into into that that may be the case however there was a significant change in that language in two thousand and five for the first time i believe it was the last sentence of the opening paragraph of the agreement states that the union offer to show majority i'm trying to understand i get why that was in may or because of i think this time if you will test from trying to get why that should matter for purposes of transitioning from  after nine a from when we have to have a we know it's not enough for a union just to say that you get nine a anywhere that they're at a minimum has to be recognition for reasonable measures by the be in a complete becoming would not be able to verify the majority status the union was not able to actually deliver on its promise to offer those showing of majority support and you know if that were the case then they could negotiate this the company where the board articulated what i had said or much earlier on in response to a girl or questions where there is a there is a suggestion in the court's holding that that setting aside for a moment the rationale of the court that the holding is at least where here there is this type of little bit closer than it actually was unfortunately however peerless is consistent with other decisions of the board in fact the ninth circuit two years later in american history beating reached the same holding in which they said that it's not the date of an announcement or the intention to engage in some action that would later turn into an unfair labor practice it's actually the engaging in the action itself in taking that on for a legal practice which here arose at the earliest on may fifteenth when arguably well in misstated the facts in here less as to whether or not there with notice because it went further to say this is a well established principles e g lege its own case in a slightly the morning of the employees of the court i'm here to represent the you might have bill osborne we're here to support the board's position that the decision should be enforced and we believe that the evidence of the facts is even stronger specific statutory basis for recognition the language was a big it was where that language is ambiguous two things happen first there's a presumption that it's in a different room it's a matter of law and second doesn't have one agreement it has fourteen agree those agreements extend over twenty three years each and every one of those agreements specifically identifies the basis for the parties recognition is section ninety of the national labor relations act had the record as the record doesn't say one way or the other whether this was offered i had no idea how the contract sat near them is out of hand i just don't know what in fact whether that was done or not done the record the evidence of the record simon so we can't we don't even know whether in fact actually happened no but we do know that the law in this circuit in the supreme court in that the n l r b is an offer to show in the employer's agreement that you did show is sufficient to much support not a recognition not by i live mechanical for example applies to this in the construction industry for the same extent as is it does outside the construction industry nine a applies everywhere the same these are nine agreements there are cases there are plenty of cases going back decades of the different kinds of showing or offers to show inside and outside the construction industry which are found this supporting ninety agreement to get to a point the judge randolph made hottest ladies garment workers working for this let's suppose in two thousand time or nine hundred ninety one a union went to an employer and said i want you to sign this explicit ninety degree no way of me doing about we represent blah blah blah within six months ladies government workers lease that agreement vulnerable to challenge it's an unfair labor practice and it invalidates the contract if there's no sufficient majority support for that the language first of all when the construction in point one point two where the language is unclear as it was there the burden is on the union in the employer to establish that it's not any different that is more clear first of all where the contract and to go with the moving party has to show that the parties intended a ninety degree and you can do that from language or experience external  argument that say that once or so i'm clear you're saying that if there is if the employer and the union sign an agreement that says they have a nine  you know unions are in the world the business of protecting the poit rights i would never come here and nasty and ask the court the to disregard ladies garment workers that's critical but the employees never complained about it and i guess i guess that i'm running out of points i want to make but i really want to answer your questions if you have any other ways i can i think i have a reply here so in response to so i'm clear in response to the line of questions judge millette was pursuing earlier your point is that in that six month period this nine day agreement is subject to being attacked point is that if the parties sign an agreement that says their relationship is and nine remain and there is no challenge to that assertion that from the beginning on its face is a false claim of nine a status as a matter of law and fact that still we hear someone to challenge you in six months when there's no point in time i think not disagreeing with the board i'm supporting the board the board found a nine to an entirely different argument well it's just i'm heading to the board's argument the board said it was a night a relationship is of two thousand and five we completely agree there's no argument about i heard that argument made i'm not positive but i don't believe that i did i don't know her how your argument from you just use i hope now let's let's let's backtrack maybe i could have misunderstood your question we argued to the board and to this court that this is a nine day relationship and has been for twenty some years ok and that it cannot be in a relationship because and we cited the cases in there the brief someplace we cannot be in a different nation ship because even if it was an unlawfully assisted ninety eight relationship it would revert to an eighty two violation and that is precluded by a deaf so it can never be in a deprivation ship whatever else it might be and whatever support may or may not have been there or wherever and by the way this business about bargaining you know that at the expiration of the most recent contract the employer didn't set up for a higher agreement i'm going home they bargained it bar even bargain everybody understood this was a bargain ninety relationship until it got to the end for labor practices and that's where we are but no ambiguity fourteen agreements every want to wish or explicit you know i just can't imagine that the gaga with regard to with regard to the rights of employees to challenge an improperly granted recognition under ninety eight section eighty two charges were section eight b one a charges against the union those are complicated things in the convenience of anita for ration ship is that an employer in a construction union can sign up on any given week and begin a working relationship and in terminating the agreement and advising them with role of building i think while i do represent the employer i think suggesting that the onus is now or in the employees to understand and file section eighty two charges is  power in the hands of the union and the employer to make a choice for employees was that part of the general counsel's presentation of the union's presentation before the board that were  on the creation of an unlawful ninety relationship because it again or assumes that employees are going to know to challenge word assumes that an employer is going to blow the whistle on itself and that's very unlikely to happen so  thank you very much thank you