good morning and you may proceed in morning your honour's may please the court the board from your order in this case should not be in force because compliance with the order to cause my client substantial economic harm my client close business because he lost his lease and because he was operating at a substantial loss he had lost two hundred and seventy thousand dollars in two thousand and seventeen he was losing some forty four thousand dollars i believe up through may of two thousand and eight my client operated a registered motor vehicle repair shop in new york what that means is he can perform repairs on rd party  vehicles for compensation the building itself is what is registered not the business so when my client lost his lease he also lost his registration he moved to a different location for a period of three months the lease specifically stated it was to finish the repairs from the old location the least terminated at the end of may two thousand according to work case law even if the closing is found to be discriminatory the restoration where she not being forced because as written it requires my client to violate new york law also my company under darley does what any did you put in any decent evidence before the board on the your client's economic situation can you say ok on the you can hear me ok yes your honor ok we did we filed a we just put in a tax return belatedly there was and we've put an unsigned tax return that we that we submitted to trial was not signed right that that tax return was filed in september electronically that is why it was not signed the judge asked for a signed copy my client signed it we submitted it five months before he issued his decision but it was filed in september did you did you try this before the board i did your honor when you reflect back on it if you're trying to prove economic incapacity is that really the way you'd make your case i'm not getting it i mean is no brain surgery required here if you're trying to show i lost a lease and here are my financials you stick in a tax return and that's it that's that you're some people don't i mean i would be a i'm sorry if it sounds a little bit callous but i don't get it i understand you're saying i presented the evidence of what evidence is given to me oh ok that evidence tell you why diet so wait so i need to understand this because i'm being totally honest with you worlds more people sitting on the screen that isn't the way you'd prove economic  capacity it's really not a hard thing to do to show that i have a client our claim is that in this business that we're fighting over there were continuous losses and there's no prospect of  getting better and we've lost the lease accept or accept or see an easy way to prove those things now are you telling us now that you simply because of the situation you were in you couldn't get more than you put in because what you return and the return doesn't tell you anything other that it's a it's a snapshot but it doesn't tell you what's going on with the business and that's all you put in was an economic return i mean i tax return that sho my client lost two hundred and seventy two thousand dollars yes but that doesn't tell you about ongoing capacity all right i mean you're answering my question that's all you put in i thought you were indicating to us that that's all you were given and so that's why that that's all you put in correct correction on that gives that gives me some explanation because i still want you to know as a lawyer like you do if that's the best you can do both places are and he lost his lease so therefore he lost his his operation of being a quote unquote registered repair shop right he simply least six hundred square feet in another location that operation he cannot there's three options on the table for him under this under the board's order right now he can violate new york law and be fined one thousand dollars he signed he gets caught it's all in the record that's in the record he can find a new location to either least or by and have it retrofit become a registered motor vehicle repair shop always requires automatic sprinklers fire alarms standpipe spoiling water separation mechanical ventilation or he can try to find a new lease of a building that's already re was the case that you just cited charlatan cherry maureen yes you know and that's where the companies control testified to the company's monthly financials right i believe so you know is that what happened here it is not your honor or right that's what i'm asking and that's my concern you're making it so much harder for us than it otherwise needs to be how long did they continue finishing up as you put it  evidence indicating that he no longer does repair work what's the other business doing that's the truck is he it's a concrete it's a concrete business so cement trucks they mix onsite they deliver concrete right and that's still mechanic and the owner and what do i do as a judge with the undisputed evidence that in this case everyone agrees that this is one operation greg just like it was brew fabricators cherry fabricators has some evidence of that but in any event i'm still what does that mean it's one operation if he's if he's one operation one operation was a motor vehicle repair shop they operated they week on the trucks the other cities spent two to three hours a day on the saw the record indicates that it's one operation undisputed and there's crossover work don't miss this one crossover work but the the other case there is that there is another case out there and the judge did find that concrete express does have a mechanic that that performs work only on the concrete express trucks which means what if this it wait a minute i'm trying to get you to understand what i'm understanding about the record the record is it's only one operation well no one not that's conceded it's one operation correct juicer and it is one operation and well there are lots of business and businesses that do more than one thing so that's not really interesting there are lots of businesses that exist that way and you've kind of constructed a picture here a little picture of one operation a does a couple of things and apparently those cross will work if i'm working in one side i can also work in the other side yes no that is not that is not what happens never happens no there i don't you just tell you is oh it's happening i thought you told me i don't know i understand you're saying there are two separate locations right i understand it concrete express and they have their own mechanic you know there was rob truck a trailer repair that had their own mechanics that worked on rd party trucks that was their business model that rob ever worked on the cement side they worked on some of the cement trucks yeah right so that in this record in a single operation the record indicates that it not only was possible it had been done that's people in rod could work on the cement side that was nothing unusual about that the frequency is not the question i'm raising it was done you're correct yes so and i'm trying to give this some context because you're fighting about the restoration order and i understand that but you see when you think about it and it's one employer and one operation for this legal record a remedy could be constructed where to the extent that there was work available the employees and rov who allegedly have no more work to do in the rov operation could do it in the cement operation that would remain to be seen in compliance they can work yes there are two trucks  not raising the economic inability is one issue i'm respectful of that i'm not fighting that that remains to be seeing in part because you didn't prove it very well the question i'm raising is the possibility of ra of people who mostly worked in raw of being able to work in cement in what is a single operation and you're conceding yes that possibility exists you're saying but there may be a problem because it may not make it in money if they do it that way the problem is there is little to no work to do you're asked i want to you next to you are trying to say the argument about economic incapacity ok leave it aside i'm not doubting the importance of that i want to make sure i have the structure straight in my head you're not doubting there's a single operation in which employees on either side can work on the other side stay with my question yes trying to understand this case they have more than they know what to do with in the structure that you have i thought conceded exists as i'm describing it as one operation and so if the work goes down  in this one operation people in iraq can go over to the center cement side and do the work there and that would not be a surprise if the work was there right yes or no no because concrete express has its own mechanic work than concrete express knows what to do with and the rod people are now out of work would it be a surprise to anyone that this owner would say well i want some of the rock people to go over the cement and work there more work than they know what to do with it have said that twelve times now your honor  hard i'm trying to figure out what the the corporate structure is here there is an operation on one side and one operation on the other side you're telling me they're connected you agree with that quibbling over whether or not they could afford to move people over i'm giving you a hypothetical and i'm entitled to do that as a judge i'm giving you a hypothetical that the cement side now has tons of work would it be a surprise to you or would i be wrong in saying would not be a surprise at all that the right people would be moved over to the cement site and do that work if there was work available they could go over and do that work thank you it's taken us twelve minutes to get there that's unchallenged since his testimony is discredited when i've looked at your briefs and i read them carefully i couldn't find i found almost nothing they could be used to counter the board evidence in support of all can i speak your honor yes now you can add to my question my right about that what evidence is there record could that you would point to other than there would sustain your burden on any of these issues the fact that the mechanics own testimony says that they spend limited amounts of time working my write about that yes you are you can i can i tell you why i skipped serving credibility the last time i was before this court i had three pages of a brief were where i witnessed live it  sorry i'm sorry yes i know we have on lots of cases we have lots of lawyers for companies who who who not watch but we do have warriors who stand up here and actually make an effective argu lost it was that i was told you're barking up the wrong tree we don't overturn credit or there's a lot of trees in the forest and they're starting yeah i understand that but i have anything more to say but can you do anything in threatened to fire three separate employees at concord express and close that business altogether if they voted for the union significantly when those when the those events went to a back let's assume that the record is as judge tagle and in your opposing counsel seem to be suggesting there in a lot here to support the company's challenges to the un the findings of the underlyin by lation let's assume that's all correct ok the difficulty on your side and the thing that's why i was trying to get answers from the other side so we could sort this case out difficulty for your side is you have a g d bargain in order you know and take giving you the benefit of the doubt suit seems like it's a plausible response to what the board was facing that is you not have a duty to bargain with the unit given these circumstances and you have a restoration and you has some underlying questions about economic whether or not the employer has a feasible operation  i honestly can't square the guess will bargaining order with the restoration order in my mind i don't get what the board is trying to do the again in your mind do you think the board is suggesting that there is a duty to bargain with respect to the effects of the closing of the operation the board's not doubting at the operation was closed right now ok and the board's not doubting it there is case law that says employers can close operations as they see fit right course ok so then am i right in assuming that the most the board ought to be able to compel here is bargaining over the effects of the closing i respectfully disagree on or in this case the board found that the the closing of our aviate was a violation under  darlington intended it was an act intended to chill the union activities that were ongoing and concrete expressed and in those partial closing cases the board standard remedy is to it is restoration so that is well the burdens on them and they didn't make the showing that's that's absolutely and not only is that your honor those the records show that the lease and run out no your honor as we've shown in our brief the this was a month to month lease and under new law a landlord tenant cancel a month to month lease without at least a thirty day notice and there's no evidence of any thirty day notice in this case in fact i would point out your honor that as as as of the but i i have reasons to doubt that this was ever an issue but certainly there was never any there's no proof that notice was ever given whereas when they lost their lease at edison  testified that he had been given oral notice that the landlord was terminating that lease and so let me let me ask you this let's assume i'm trying to figure out what is this a restoration or to me let's assume that in the cases you pointing to i think pose different factual scenarios let's assume there's a restoration of order and it's viable and the employer is told you have to open up again and you have to bargain the employer's obligations i understand that in the law is to say can say under the law to the union i have to bargain with you on board and i want to let you know that i'm closing my business i'm closing part of the business and i'm happy to bargain over the effects is not is a perfectly lawful let's assume all of what the borders can i don't know what the restoration mean if they are in fact really closing down you say the record doesn't really show it there's certainly enough to suggest there's not much there there wasn't much that to begin with in terms of employees let's and that and that means that i'm sorry go ahead and that means that there isn't much to rebuild either your own or this is not a business where they have to you want to know about the law but the law doesn't law doesn't work that way employers are aren't met at least i don't think it is employers are now an obligation to stay in business than want to stay in just because it would be easy to stay in the know but the law you know that's not the law but they also chance close of business out of share and so you know all right well i gave you my hypothetical so you should have had enough time by now to think about what your answer to it the question i'm raising is let's assume this restoration thing means something along with us all and the employer says ok come on let's bargain let me tell you something i'm closing the operation now why because i have any money not making any money here and i don't want to do it anymore and i will i will my lawyer told me i have to bargain over the effects of this i'm happy to bargain over the effects and say the union says we want to put him in cement you see if there's any work there i'm happy to consider them i can tell you right now there's not much anything else you want to know in effect some done is not lawful i don't think so your honor because one more the employer has to do well if i'm assuming that under your hypothetical this court has enforced the board's order and in that case the court order requires the employer to reopen concrete expressed before it can decide to close it down  he's well advised counsel says reopen it it's not worth you know want to spend more lawyers fees with this just tell me it's it's real because the board told you to tell a union to come in let's bargain they come in and say we're reopen now we're to close we have a right to close we're going to close however my lawyer told me i have to bargain over the effects of the closing i'm happy to bargain with you over it what questions you have we're closing this place down and i'm not saying it  by virtue of having previously announced that we're closing it down beginning tomorrow because i don't want to be in the business anymore and i'm not making any money and so they have what questions you have and the question is what about cement will look and see if there's any work there i'll certainly consider your people but we're closed anything you want to know on affects that's all the employer has to do right if your employer you're your honor may well be right i don't know  respectful you have to say i have a duty to bargain and i'm here to bargain but you know what that duty only involves a fax of closing because i am closing i think i think in that case you're on your own your honor is correct they don't have to do anything more than that i would point out your honor if they say that they were losing money but we as you as you've mentioned there's no there's no that's actually not substantiated by the record i don't know what's the point oh you're going  track wait no no i want to make sure i want to get you on this track to make sure you're not disagreeing with what i'm seeing in this case is so weird situation it doesn't matter losing money or not in my apply i think in any restoration case of the board may and so but that doesn't make your why i'm not sure why does when trying to understand what is this restoration thing mean the the employer is forced to come back into business in this situation now make it the way for your purposes the worse situation is now i'm not losing any money i could make a ton of money but you know what i don't want to share i want to be in cement and i'm happy to bargain with you over the effects and then i'm done and i'm going to do it honestly i'm going to bargain any effects you raise with me i'm going to discuss with you when i'm going out of business i understand your honor and i think  finish it i'm sorry easier case right if the employer really is strapped economic right it sure is it's an even easier case right except that we don't have not only did they not show good evidence regarding r e v d we have absolutely zero evidence regarding the company's overall finances concrete express it's possible compute express making money hand over fist and they could easily reopen our if we don't know we have zero information about come in and you say easily the you're talking about a different employer that i'm really trying to pin you down do you right really mean to say that an employer can be told even though you don't want to do it you have to  or is the restoration order nothing more than no you can't close it the way you did it the way you did it was unseemly so you have to open it again and maybe we'll be lucky and maybe you'll change your mind so you have to go through the pretense of opening it again but the employer can still say but i'm closing and i'm going to bargain honestly with you over effect but i'm done perhaps i missed the point of your question earlier but there is no question that the board can cement is making money hand over foot in my scenario in your in your scenario of if they just want to get out yeah it makes it makes no difference right exactly can they can still do that but i would suggest your honor th with the board's restoration order with that with the idea of the restoration remedy and this court and others have held that that's a perfectly legitimate remedy i think i think you're going to probably fine and i'd i wouldn't swear to it but i suspect you'll find in those cases there probably was a business that was maintainable and someone willing to maintain it that just begs the question i'm trying to raise in this situation where the employer is saying probably was some force i'm not making anything it's small it's insignificant and i'm done whereas in some of these other cases that was not really what was going on but it any event it doesn't matter even in the cases you're pointing me to they didn't address the question i'm raising and i want to make sure i understand what's here because those cases could end the same way those employees could also say ok let's bargain effects and we're done short yes absolutely but i would i would also add you on and this is that's the reason we have a compliance proceeding at that compliance proceeding the employer can show really it has basically gets a nd bite at the outhaul to show that financially it's an undue burden to an r u v yeah but there's an easier way to do it don't go to compliance it's more lawyers fees just say come on my lawyer told me come on let's bargain incidentally here's our proposal we're going out of business why because we don't want to be in business anymore we don't need to go to compliance we're not even going to argue about economics we're done if the company wants to go through the hoops of reese resetting up our easy and then saying well no no no no no no only resetting up labor practice me for that that includes i've got to go now least some spaces that i'm about to tell you i'm not going to use because i don't want to be in business anymore that's when not understanding the good salon restoration that can't be what the  even though as a matter of law i can tell you one day after i don't want to be in business and that's lawful what i have to go lease base your honor that's that is what the restoration order that this court has enforced in i don't know you'd have to send me if you want to do after argument submission to show me that that's what was happening in a situation where the employer did not want to remain in business  know your honor about not wanting to remain in business well that's what i'm talking about we don't know if that's the case here and i that's i don't know that in other cases the board and the board considers as a factor the employer interest in remaining in business what the board looks at is whether they close the business with anti union animists in order to chill the other employees at another entity from  aging in section seven protected conduct if after the if after the board's ruling as enforced by this court the employer decides that it doesn't want to keep to stay in business that would be part of the record within you know as decided by the by the board that can happen after the fact so i don't know that i can find you a case in which the employer says but i don't want to start over don't make me start over i really don't want to do it what i can find you is a case that says you have to reopen the your business as it existed at the time in fact that's what the what the what the order in this case says ok i have my answers from you i have answers from judge edwards that the company violated the act by closing r e v d with the intent of chilling union activity in concrete express that's one find the board also made a finding  unlawfully discharged and what the board said is that there are two ways to find that gonzales was unlawfully discharged one is because we found that are  on lawfully closed it follows that gonzales is discharge as a result of the unlawful closure is unlawful itself alternatively we can find say the court of appeals finds that our e was not unlawfully closed we can still find under the right line that gonzales was unlawfully fired for anti you for gauging it in human activity does not make sense get where you're saying that i'm just something in the breeze that injuries perhaps perhaps the briefs were were ill were not written as artfully as they should have been the place in the decision where i would that where i would direct you is on page eleven the it says are you the closure and discharge of victor gonzales and that is that's where the judge said on one hand i can find i found already that i know he's going to find later on but on the on one hand i can find that gonzales was fired strictly for suppose the record shows as as we proceed forward it now shows i don't care what it did show in the hearing before the board that this operation by the state to do whatever it is they used to do are you saying today or at a compliance hearing today meaning post a board hearing you know now in compliance i mean it can get to a compliance but let's assume the situation they don't have a license to do this work and what they don't have a lease space anymore they have a guest will bargaining order that's understandable and you can bargain over effects that would make sense to me you can the effects of the closing but in terms of restoration what are you talking about they say we don't have a license you mean we license the license is is is building specific it's not it doesn't go with the business a that seems really strange to me that you can be in a business to do something merely because you have a building and claim to be doing something but you don't otherwise have a license to do what it is you want to do that makes no sense that was my understanding from reading i have a license if it's required and maybe it's not required they don't have a license they don't have a lease and forget what they prefer to do but that's the way they stand and now what they've got to give a bargaining order so yeah maybe they have to bargain about something but now with your argument with respect to restoration i want to make sure i understand this now i understand my argument your honor is that unless it poses an undue burden meaning that they check not afford to do it or if it would injure ensure the health of the remaining business they must find they must be nice and new building with proper registration and they must rehire the two employees that they go get they most must go get the necessary license exactly they've got to recreate themselves not themselves just be just one part of the business that not to recreate a business entity right right and now is there some case law and i'm happy to look at it that says you have to recreate a business entity that does not really exist on the day when you'll now be required to do it i'm not talking about can you find cases where the come with the board said to the company you have to get this operation up to speed again i'm talking about a situation where not only the buildings gone the lease is gone the license is gone and the board is said notwithstanding all of that you have to recreate it go find a lease go find a license and make yourself a real operation again and then all when suddenly as you and i have just spent a half an hour talking about incidentally then you have the right to bargain and say we're not going to stay like this so you'll cancel all of what you just did in one day which show me the case ok i will i will i will feel something with the court i hope by the end of today if not tomorrow don't give me the ones you've been given me i understand i want one that they're not used to me i want to tell them where that where it's not there anymore and the board says no no go as a repair shops a registered my understanding is registered would be quote unquote license but in order to be dragged to stir in order to participate in that business the building that you  in has to have certain requirements under new york law as to what is required in order to perform repairs on on trucks cars and again  some automatic sprinklers some fire alarm some stand pipes oil and water separator so that when you know things going to drain you're not getting oil in groups that are going in and this city sewer system right so that is my understanding of the motor vehicle repair shop so when i'm registered yes that is my license but you also have to have an actual building that means all the specifications ok and it's one point i want to bring up it's not enough under darlington to show that closing rob would have the foreseeable consequence of possible union chilling at the other location they the quote unquote unfair labor practices that he mentioned had already happened at concrete express if he wanted to shill unionism at concrete express he had closed down rough road before the election and he did not know that argument is not a winning argument because as so many cases that will show you that you can have the chilling effect of those a matter when you're saying to these related employees if you push us in collective bargaining or anything else will close you down to that's what the board takes and say it will take will take you out that's oh i threat so and you will do it at any time was so angry about this and if you keep pushing us and collect a bargain and you keep pushing us with the union will closure that's all they need i'm more i'm more troubled to try and understand what this restoration means but ok i don't have anything more judge henderson thank you for the time all right know i understand i'm giving you a precise kind of scenario of a reconstruction where it doesn't exist and when and everyone understands what the guests will bargaining order in hand that p that employers still can be made to bargain about effects and a huge you're telling me i want to see a case where the board is not withstanding i got to guess a bargaining order they still can be forced to bargain about a fax but we're going to make them recreate themselves get the license go get a lease get a building even though the next day we all agree they can walk out