dispute about holiday pay there are two main issues before the court the first issue is the company's decision to hire permanent replacements for the strikers here all of the record evidence shows that the company hired permanent replacements not temporary replacements the critical issue here in the context of this appeal is that there is not only no union here but there was no picket line this is critical because it is the existence of a picket line that creates ambiguity about the status of the replacement workers it raises the picket line raises the question of whose job is it at the end of the strike if there was no picket line if the replacements are unaware of the strike then the replacements have no reason to believe that they were anything other than permanent replacements the bird jay said th importance of the fact that there was no strike there but the board's analysis of that issue is is incredibly flawed first of all the board said that there were thirty or replacements who knew people who worked for the company the record shows that there were only three not four now that minutes probably isn't dispositive but it does suggest a certain amount of sloppiness and review of the record by the board itself the more important issue is the bird went on to conclude that because three or four is in its view of the replacement's knew someone who worked for the company that they therefore knew about the the strike and had reason to doubt whether or not they were permanent or temporary that logic is is incredibly flawed two of the three replacements who knew someone who worked at the company were the son of the company president and the nephew of the company president the company president was the very person that made the decision to hire permanent replacements the birds conclusion that they had reason to doubt whether they were permanent or temporary is illogical it makes no sense their relatives made the decision to hire permanent replacements they had to have known that they were permanent there's something in the documentation and the hiring that indicated that the people were permanent  w jack to the contrary the application said i understand that if i'm such hiring will not be for any definite period of time yes they were hired as at will employees and the board is held that at will employees are can be permanent replacements and they're sort of a tension there as we discussed in the brief about that but the board's decided the fact that someone hires replacements as at will employees doesn't mean that they're not replaced a l j findings of fact indicate that these people were not told that they were being hired as permanent employees nor that they would become permanent employees after an introductory period of sixty days correct there was no explicit expressed discussion about that but they were hired under the terms that they were hired they were hired just like any other employee in the previous forty four years of the company's existence the process you know i have to say this you were talking about the two relatives that were hired i mean this happened very quickly there was a walkout and would then i don't know thirty six hours or something they had people coming in to interview to replace these folks it looks like they were trying to hustle that up as quickly as they could even though some of these workers had been working there for like thirty years the if there was so rt of let's get this done overnight on a saturday so that we're you know we can terminate these people the it seems to me that who would know that would be the relatives i'm not sure how erring relatives helps your case but i think the intention was to hire a permanent replacement so they could get back into production and they wanted to do that as quickly as possible for obvious business reasons and so yes the decision was made quickly the walk out occurred on wednesday the decision to hire permanent replacements was made on friday there was a job fair on saturday and with the intention of britain bringing these people in if they had wanted to hire temporary emplacements they could have gone to a temp agency and got people in right away they didn't do that they went through this that on saturday i can't i can't imagine how you could put together a quote job fair on a saturday just sort of overnight that well and there are a couple  ways you go about doing that they had applications on file so they could contact those people and ask them to come in there are social service agencies that maintain lists of people who are looking for jobs and need jobs in they contacted those people and have this and they had fifteen thousand people come into apply for jobs so yes it was done quickly but the reason wasn't because they wanted to try and get these people out but because they wanted to try to go a lot of charming resources just to give these people pay for new years well i mean hindsight sometimes is a wonderful thing but there was a legitimate dispute the company had paid out a lot of money in bonuses and all of a sudden there was this issue over holiday pay and the employees decided to walk out that was their right to do under the labor act it was also the company's right to hire permanent replacements for them and many the replacements are still there i do not know what present did you have the replacements testifies to what their understanding was did not that seems odd i mean in that kind of irrelevant consideration well i mean that was a consideration at the time that we were going into the hearing first of all the complaint filed by the board didn't raise that as an issue so the permanence was an issue wasn't well it's it's always an but i would have just would have thought this was pretty easy testimony for you to get and help you and yet you didn't do it which makes me think well maybe it would have testified the way you want well how many how many would we have had to call to testify was one of the questions in order to demonstrate what their understanding was more than zero what we showed was the process i mean the law requires that we show that the manner in which they were hired would have le them to believe that they were permanent we showed that the process that they used interviewed by two different people specifically addressed by the company president as to how and go about getting a drug test having a background screen that that process would have led them to believe as we've said that they were just as permanent as any other employee hired by the company in the prior forty four years when there is no evidence to the contrary that evidence is sufficient to carry the burden of proof the second issue that is before the court is the board found that the after the hiring of the permanent replacements the company unlawfully terminated the striker's employment more specifically the bird found that the compan communications with the strikers would have reasonably led the strikers to conclude that they had been discharged and not just permanently replaced the company told the strikers that they had a been replaced b should not report to work  for any future shifts because their position had been filled see their employment was terminated d in the event an opening became available because a replacement left the company would determine whether or not the the  striker was old for rehire and that the employees those strikers would receive the company standard separation information and they also got a thank you for their service yes and the thing to say i don't usually say that to people you know expect them to come back well the reality here is that a permanently replaced economic striker is far more like a terminated employee than they are like a current employee a permanently replaced economic striker has no current job they have no current right to reinstatement and  most they have a contingent right to at some point in the future to get reinstatement that's far more like a terminated employee than it is like a current employee and that's why the courts of appeals frequently refer to the permanent replacement of an economics writer as the discharge of that stryker i mean the courts have done that that's what they do now the general for the town council indicates that's just loose language by the courts but it reflects the reality that that's what the permanent replacements i mean it just reflects reality of what of the similarity between a permanently replaced economic striker an terminated employee here the main issue that the board found issue with in terms of the company's communications with the strikers was that it found company did not adequately apprise the striker's of their potential right to reinstate the way the brewery analyzes it that right to reinstatement is absolute and it is by no means absolute it is undisputed in the briefs for the court that there are four reasons for contingencies that must be satisfied before strikers are entitled to reinstate first of all the striker must have made  unconditional offer to return to work that never happened here they have to indicate a willingness to abandon the strike to the strike or loses reinstatement rights if they are obtain substantially equivalent other employment so once they accept appointment somewhere else they've abandoned employment with the employer third the striker must be qualified for the position that opens up and fourth the stryker can't have engaged in egregious misconduct that would have disqualified them from further employment so the words conclusion was oh you didn't go in through all the detail of what the reinstatement rights are well the law doesn't require that what the company did was a reasonably accurate description of their rights as permanently replaced economics writers thank you good morning your honor smith please the court michael jackson on behalf of the national labor relations board substantial evidence supports the board's finding that the company violated section eight a one of the act by discharging ten of its employees for engaging in a protected economic strike the company conceded on page fourteen of its opening brief the legal standard is settled whether a discharge has occurred depends on the reasonable inferences that the affected employees could draw from the employer's words or conduct and it's the board's position that the company's analysis of the discharge question really completely and utterly loses sight of that controlling standard which this court has recognized in at least three decisions it's the controlling standard and under that standard with a proper focus on the standard doing the events through the eyes of the employees and the reasonable inferences that they could draw there can be no doubt that there is substantial evidence in the record that supports the board's finding that the company's communications effectuated their discharge the january twelfth letter which the company sent to all the strikers in which it read to most of them verbatim on january eleventh it's clearly inform the employees your position has been filled and your employment terminated and those unequivocal words alone would lead any reasonable employee to conclude they had just been fired the company did not leave anything to inference in the views of a reasonable strike or received in that letter hearing those words from the company president would make and think i just lost my job the letter then goes on to only reinforce and confirm the discharge message it tells the employees that in the event that there is an opening in the future the company will determine whether you are eligible for rehire and you may be offered that this reasonably creates the impression again given the events from the employee's eyes not how the company would view them that it's a matter for the company sole discretion to continue whether it might consider them as a potential job applicant for future openings and a letter goes on it hammers t point home it tells them you will be receiving the standard separation information thanks them for their service to the company which is then success in their future endeavors again any employee reasonably would hear those words read those words and understand that this relationship that i have had with this company is over it is done with i just looking at the letter as a whole all of those statements together they're frankly  there is substantial evidence of the different deferential standard of review substantial evidence that as this port court put it in the accurate tool and manufacturing case that reasonable employees could have understood the company's words as words of terminations indeed the company used the word terminated they could reasonable inference that they could be eligible for rehire your honor could that be a reasonable inference i think that and i don't think so i mean i think that the letter when again looking at it as a whole leading off with the very statement your employment has been terminated then followed by the company will determine whether you may be eligible for rehire again only if the replacement are gone at some point in a future yes or no isn't that part of the state and yes your honor and then furthermore following that up with the statements about standard separation information thank you for this your service with the company we wish you luck in your future endeavors i think that looking at the communication as a whole the reasonable inference again from the employee's eyes which is the controlling standard would be that they've been discharged what about this issue about whether the people that were hired were permanent issue is indeed a relevant issue in this case but it's relevant only as a remedial matter the violation that the board found is that the company violated section eighty one by discharging the employees so the permanent replacement question comes into play in determining the reinstatement and back pay rights of the unlawfully fired workers but if we thought it was temporary placements would that bear on the discharge inquiry no your honor so a discharge i discharged striker unlike a economic striker who has not been discharged a discharge economic striker once they've been discharged they are entitled to reinstatement and back pay automatically they don't need to unconditionally offer to return to work and so as soon as soon as they've been discharged they're entitled to that reinstatement back pay because that is a violation regardless of whether they've been replaced regardless of whether the replacement was permanent or temporary where permanent replacement comes in what isn't there on the inquiry i mean the question is what the company was trying to do how people would evidence that goes to determining whether the replacements were temporary or permanent those are facts that the strikers were aware of and again the discharge analysis as it's been long settled in this court has recognized the analysis is very much focused on t employees the affected employees the ones who have been allegedly discharged it's their perspective what they would reasonably understand or reasonably infer so but where the perimeter placement does come into play is by default the discharge striker is reinstatement like any other unlawfully discharged employee under the act immediately immediately at the moment of the discharge however the board has found that if the employer proves settled that the employer bears the burden to prove that the replacements are permanent the presumption is that they're temporary unless the company meets its burden of proof and the company there is substantial evidence in the record that supports the board's finding and permanent placement is is a question of fact this court has explicitly recognized that the question of permanent replacement is a question of fact of the substantial evidence standard of review again a very deferential standard applies and excuse me so the company its burden that's what the board found substantial evidence supports that it's undisputed that the company did not tell any of these replacement workers that it hired that they were permanent replacements it's undisputed that the company did not tell any of these replacements that what their job or tension or job security rates were visa v the striking workers and it's also undisputed that the company never told these replacement workers that they were permanent employees or that they would or might become permanent employees and then on top of all that as i think was noted during the prior discussion the company failed to call a single replacement worker to testify the standard is that the company has to show not only its intent to hire permanent replacements which we don't dispute here but that it prove that the replacement workers had a mutual understanding with the company that they would not be displaced to make room for returning strikers and so the company failed to do that in light of the undisputed points that i mentioned and then their failure to have one or more replacement workers come into court under oath explain what was their understanding when this all happened what about their point that the documentation is the same as it was for other people that were hired apart from this that your honor our position is that has no bearing on the analysis because it's  replacement workers understanding there there's no evidence whatsoever in the record to suggest that the put replacement workers would have any idea of whether this man or method of hiring was at all similar or not similar to the way that the company normally extends offers also the company does hire temporary workers i don't know if there's evidence in the record to show whether they had temporary employees at the time at the time this occurred at the time of the events but excuse me it has hired has hired temporary employees  and again the presumption is that that they replacements are temporary unless the company satisfies its burden of proof i think what the company is really trying to do even though it says that it recognizes its burden i think it's really not recognizing its spirit and i think what it's what it really boils down to is an attempt to reverse the presumption to say that the presumption is that the replacements are permanent unless the general counsel at trial proves that they're temporary which is exactly the opposite of the settled law of the board in the court's counsel mentioned that in the company's view the issue of the absence of a picket line is important it's it's really not important the company cites no authority whatsoever to support this proposition which as far as i can see is a very novel proposition which is never been considered are addressed in any decision of the board of the courts there is no case and the company no case that i'm aware of in the company has not identified any case any decision any authority that says that the presence or absence of a picket line is a significant factor or even a relevant factor in the permanent replacement analysis there is no authority the company  believe given that the standard is that their placement must be proven to have understood that they would not be displaced by returning striker if the replacement worker does not know that there is a strike then that would at least weigh strongly strikers that with the four three newly hired lawyers were alleged to have your honor so there were about the blood found that there were about eight or nine replacement workers hired at the time that the discharges occurred and the board found through an inference that three or four of them a few of them did know about the strike based on their relationships with people that worked at the company but but that is not at all contrary to the suggestion of the company that is not at all critical even important to the board's findings because the board down or adopted in full and agreed with the judge's conclusion determination that the company failed to satisfy its burden of proof that any of the replacement workers had been shown had been established as is their burden that they were permanent and then the board rejected outright the logic of the company's argument that a replacement worker was not aware of the strike would necessarily understand that they are permit replacement so this three or point things it's really not important your honor it's irrelevant here the board was well is there any relevance to the fact that a couple of those people were were related to the company owner and therefore few workers who did know people who were to the company knew the strike the board was really just pointing out a error in the factual premise of the company's argument but it was not at all hinge in its determination that they had satisfied their burden of proof on that inference because again the board concluded that the judge agreed fully with the judge that the company had failed to satisfy its burden as to any of the replacements and it inferred only that a few knew the strike the point the big big picture sort of point here one on the perimeter facing question is that on this record regardless of whether a given any given replacement worker did know of the strike did not know of the strike there is just no evidence to show to satisfy the company's burden of proof that they understood they would not be displaced by returning strikers that their job security their job retention interests trumped those of theirs returning strikers strike i guess that i would respond maybe to a point company counsel made that the board in its terminations analysis focused on the main issue being that the company did not adequately apprised the stripers of their reinstatement rights that simply not true and not supported by anything anything in this case as i said before the board focused its analysis on the controlling legal standard undisputed by the company conceded in its opening  page fourteen as the controlling standard and recognized by this court the standard of what the strikers the affected workers how they would reasonably perceive or view the events and the reasonable inferences that they could draw from  a couple quick points in her bottle first of all i would submit to you that the board explicitly acknowledged the importance of the applets absence of a picket line by discussing it in footnote one of their decision had it been a trivial matter of no importance to the decision of the of this case they would have not discussed they would not have discussed this issue i would also point out that in the previous eighty years of the history of the national labor relations act there are no cases that we've been able to find out there that deal with the situation of permanent replacements in a situation where there is no visible picket line and that makes this case a little bit different and that makes that fact particularly important the second point i would like to make is that counsel indicated that the company hired permanent i'm sorry temporary employees company has three categories of employees full time part time and temporary at the record shows here that at the time of this incident there were no temporary employees it's rare that it hires temporary employees and these replacements were not hired as temporary employees in that category they were hired as full time employees