workers and the she he in this we are agreed to split their time on mr rayney you decided to begin with twelve and reserve three to mr rayney i'm sorry this is judge news and can i ask you to get a little bit closer to your phone yes you are on this case arises from richwoods takeover of operations of a nursing home from a company called preferred  had a partially unionized workforce the board found unfair labor practices despite the respect the court gives to the board's decisions which it declined to enforce this one it declined to impose a bargaining obligation on a small business that h operated without a union for nearly seven years now because successorship is really the central issue here i'd like to begin with how to count majority status for purposes of successorship and then move on to discuss  employees and then employing this one in one out analysis as far as how to deal with the employees that it concluded were discriminatorily excluded from the employment there's no per se rule that you use one hundred and one dollars just because that's the number on the take over date there are cases talking about the sort of factual analysis and the facts don't back up capping the substantial representative compliment in a one hundred and one ms brown who is the majority owner of both the ridgewood company and the ridgeview company disputed that one hundred and one dollars was adequate to provide the care that she wanted to give to the residents she repeatedly testified that she wanted more people had no particular number in mind the company made one hundred and seven offers i think we actually say one of five in the briefs but one of seven is what's in the testimony and there's there's no evidence that  ridgewood was looking to rescind any of those offers they had at least one hundred and three dollars acceptances two former preferred employees were hired but did not show up to work it made twenty two dollars additional hires in the following six weeks matthew nursing and the pacific custom case none of them do this one in one out analysis that the board relies on so if if what you do is add in davis needs and sickles the three employees that were qualified and then disqualified by the no rehire rule you get a fifty to fifty two count and that's not a majority at that point majority status would really depend on what to do with the spigots wilson who the board also concluded was discriminatorily excluded but who had failed the physical and therefore was not eligible to report to work on october st the board expressly reserved that question in its   employees accepted four offered and were not accepted did not accept two declined expressly to just did not show up to work so they said there are one hundred and three accepted has had four preferred employees accepted and the other two showed up to work you would have ended up with one hundred and five in the pool then which would have been a preferred majority so rich would made enough offers to preferred employees for them to have constituted a majority of the substantial representative count even even not adding in the three the three employees who were excluded by the  and all of those offers d were made at the same time and they were all outstanding in the same time is that right my recollection of the record is that most of the preferred offers were made by mid september and then the non preferred  because the preferred africans were all interviewed and applied earlier the preferred applicants sort of came in st but there was some overlap where you have preferred and preferred coming in at the same time but again all of the testimony is that ridgewood was hiring more people more people more people there was no particular cap number in mind it just needed it needed to get the numbers up above the eighty or so that preferred was carrying because the employees were working a substantial amount of overtime and also you had mrs brown specimen me that she didn't feel like that one hundred and one where they started list of fish and to provide the level of care that she wanted to provide to the residents of the facility or to interfere with section seven rights and the board never denied the board or the l j ever made a finding that the questions that were asked to the applicants had that reasonable tendency to course interfere it's not a per se rule that such a question would coerce or interfere in fact there's an eight factor non exclusive analysis that this court t r w and the predecessor to the issue of course of interrogation and looking at the age factor in some of the interviews the employee or the when the interviews were going on some were question about whether they were a member of the union isn't that correct that's correct and so looking at the a factor what does the employer have a valid obtaining the information well to answer your question here are my understanding when i think there was a dispute as we disputed that the questions were ever asked but employer might ask a question for that purpose simply to try to find out what the contours of the bargaining unit are it's not always perfectly clear from a bargaining unit definition which jobs fall in that bucket what i would say also about the multi factor test is it's really not this court job to do that analysis in the st instance that's rewriting the board's opinion for it and affirming its opinion based on alternative reasoning which this court does not do beyond that the outcome of this multi factor test isn't obvious because there are factor other seems to be this sort of a three legged stool the way the board laid out and a messenger seems to be least consensus with the board's brief that if you chop any of those legs out at minimum this court's going to remand the case back to the board because it's not perfectly clear they would reach the same of when you count today but after the hiring process decision to take over the case is discussed using contemporaneous unfair labor practices for analysts that's not contemporaneous and it's sort of a good analogy maybe the way the court analyzes  from the ship for case there's just no nexus between cooper statements and hiring she wasn't a decision maker she wasn't even a ridgewood or rich view employee at the time so no evidence of any of any let me ask you just a quick question that this may be just clearing away underbrush that with respect to cooper's statement i think i understand the risk that you don't you don't deny that the threat was improper and i know you said at the very outset of your argument that we should decline to enforce this order is there some we we would we did not include in our request for review that it reviewed the court's finding of an unfair labor practice but cooper statement would constitute a u l p of course we dispute that the statement ever happened but the board found that it did there is testimony to that effect so it is not part of our petition for review and i would have to concede that on that issue that it is in fact unfair labor practice the board would be entitled to s start and fact where counsel for ridgewood started because i think it's a good place to talk about the number and i think that i'd like to clear up some things are a lot of references to things in the transcripts of things that people testified to and what's in the record but i  think the starting point has to be the findings of the board irrespective of who said what at the hearing there are specific findings of the board as to the number of applicants the dates that they submitted applications and the number of offers so i want to start there and my focus is go by august th sixty five percent for good applicants so these are the predecessor employees sixty five preferred applicants expressed an interest and you having a job with the with after the take over again is august thirty was the date imposed by the employer of those sixty five they were all interviewed and by september th the employer had decided to offer all at the same time as far as my understanding is all letters went out  starting the application starting with september th so all of the offers i just want to make clear vary from the timing all of the offers to preferred employees had gone out by the time application are dated and submitted to the employer from non preferred employees the record does not indicate exactly how many offers went out but what we know non preferred employees are that their decision doesn't identify the number but what we know is on october st one hundred and one employees showed up for work forty nine dollars of which were preferred predecessor employees so that he can ask you a quick question so too i think i'm just having a hard time figuring out sort of the internal consistency of your position because your position is that sort of october one is the magic state that you know  offered and i'll take that it's in the record from opposing counsel that there were one hundred and seven dollars offers total that means then that there would not have been a majority so at the end of the day certainly the numbers shook out that there was not a majority of the number of people didn't show up at forty nine to fifty two dollars but on top of that even if things had played out and everybody showed up for work and everybody accepted employment you still would only have fifty one dollars preferred there in that question is apples to oranges it's a one hundred and one because that's the number of people that came in and two that's the number of people that were on a roll but then you have to keep the same comparison which is that date of the one hundred and  how many were predecessor in fact employees and i don't really think how many how many offers i mean we're looking at an image right you say how many offers were made to preferred employees and that number is either fifty one of fifty three i'm not sure which but if it's the numerator is number offered one it was i don't understand how we can infer in this from that maybe i'm just totally new or no no no it's different i think it's probably not going to good job of explaining it but i think if you look at it and let's look at it in two different buckets look let's look at it right this way let's look at it as the offer going up because all of this is complicated right because the employer is the one with all the knowledge in terms of how many it's going to stab how many letters it's going to send out and so on the pre october date to focus on those fifty one offers went out to preferred employees and then consistent with what the board viewed as a numbers game the employer extends all st to fifty six so waiting and waiting the final numbers if everybody shows up to work in favor of avoiding a bargaining obligation and that in fact what happened was you still had a number of the non preferred employees so that if you look at the actual what happened on october st the numbers game still worked in the sense that separate sort of steps at the end of the day the board viewed what happened and determined that the employers and game in this was to ensure that it avoided a bargain and obligation so we sent out fewer offers to prefer applicants and sent and then at the end of the day it ensured that the number of people that came on roll was in the majority of non predecessor employees helpful this is judge branch one question following up on judge n points because there are no shows and when you're offering the number of offers i think that's a fair assumption that they're going to be no shows when you cut it your argument is that  discrimination was in place with the offers and it worked out with who showed up but when you cut it that close when there's that close to being the majority and or minority of preferred i mean it just as easily could've worked out a different way i mean it's not like it was so heavily stacked on the offer that it guaranteed that the number of people who showed up were the preferred employees were still going to be a minority no matter what correct and i don't know that the fact that the employers gamble may not have paid off detracts from the fact that the board found that it engaged them unlawful hiring scam your honor that's a correct it's fixed at some point to determine whether there's a successor you have to be able to figure out how many employees there are to figure out is there a majority so there has to be some date where that number is now fixed and so the board lawyer is absent a showing from the employer that they are going to do sort of staggered hiring we're hiring in waves which this employer didn't do i know in hindsight they're saying they would have able to ascertain whether there was a majority on any specific day so they applied it standard rule here or date of the takeover who was on the rolls where did they come from and on the basis of those numbers and again i don't think that it's fair to say t board either had to both ways or looked at them in its favor its it applied its standard application of successorship and again i know these cases sometimes can be a little on satisfying in terms of the numbers but at the end of the day under this deferential standard of review the board's decision representative complement who in assessing the composition of the work force the board was merely applying fall river dying supreme court case where you know the supreme court decided there's a good reason to take a snapshot of a particular date in which a company is in operation and is in substantial continuity of operations in order to assess the majority status workforce or to just choose the most convenient state however you can also look at the hiring process and the company's intent during that process when it did not know the date on which  representative complement would be assessed and it didn't know the total number of employees that would end up accepting or rejecting offers for sure and look at its intent during that process and its actions during that process and that sort of course of conduct in hiring to assess whether it had a discriminatory motive in implementing this unlawful hiring scheme and i just want to bring up something else that has not yet come to the fore in this case be there are four employees here who lost their jobs you know they were caught up in this unlawful hiring scheme really with without any fault of their own they weren't terminated these employees were already working at ridgewood nursing home and the transition that took their jobs should have been a very simple one they were caring for residen this home and jasper alabama for years they had perfectly fine work histories their interviews were undefensible they were reassuring they had the all the employees had been reassured that when ms brown took over operation of the facility which you know she already own patients and their interviews were on a vengeful you know they were caught up in this late game and completely calculated decision to create a new rule for the hiring process in order to play the numbers game sure this rule w a different facility has not been a in effect at this facility and it was it was a you know an attempt to engineer the numbers and to engineer a majority the majority status of the predecessor employees  piece of evidence of discriminatory animals then we have to remain  myth out there by the employer and that it was at play during the hiring process any of those st of all any of those incidents are more than sufficient to  to establish that there was some animus but the the board also looked at the whole course of conduct and the and looked at you know its factors in plans building services that the case that sort of shows how right mind should apply in a discriminatory hiring scheme case to look at the whole hiring scheme in the hiring process to demonstrate the discriminatory motive certainly animists has to be established to establish a prima continued hiring not to dilute the labor pool but it was hiring to meet its client's needs there's no evidence i know of in the record that the number was ever again as low as one hundred in sixteen weeks later it was one hundred and twelve year or so later it was somewhere between ten thousand three hundred and five and you can use october one is a fixed date to assess majority status but the need for a fixed date does not mean that the court has to employ this one in one out idea of the board's come up with a judge make or you mention the board trying to have it both ways as far as one hundred and one and one of seven but i think that's that's not the only place the board uses  hiring scheme based on an inference of late adoption plus animists but that doesn't necessarily show manipulation of the hiring process it just doesn't get there  it's allowing the board to just find animists and then sort of assume all of the rest of it and as far as the three legged stool issues the board agrees if you look at page thirty four that ted of their of their brief the board agrees that if unless it's you can say that the board would have clearly acted the same way and at best the animists finding here is pretty close and if you chop one of these legs out the two legged stool won't always stand up it