he's number case number one five dash one four three three and one five one six one one caterpillar six incorporated the national labor relations board or arguments have to see fifteen minutes morning judges may please the court my name is joseph present caterpillar i'd like to reserve four minutes for rebuttal this morning thank you may please the court this case arises principally out of a union election that was held at caterpillar s clayton ohio facility at the end of september two thousand and thirteen in that election a majority of employees voted against representation by the united auto workers and the governing principles that we're here to talk about look at both the balance to be struck between employees rights to engage in section seven activity and the rights to refrain from that in equal weight this accorded by the act to both of those rights as a result of that balance or that right to equal its terms in the boards through its case law have recognized that an employer such as caterpiller has historically had the right to voice its opposition to an organizing campaign to continue preexisting operations following the filing of an election petition and to engage in non coercive conversations with its employees regarding matters that clearly are very mutual interest and concern to both employees and managers at this facility despite these principals the board findings that caterpillar in this case are entitled to no deference because they ignore substantial evidence and they improperly tilt the axe balance for competing interests against the company's ability to do the things that i just outlined to proceed with the implementations of actions that originate in the pre election time period to voice its lawful opposition to union organizing efforts and to have its supervisors engaging on course of conversations with employees regarding employees union concerns or views concerning the union activity which obviously are people concerned about caterpillar its managers and employees in the board's errors are particularly acute in this case because the evidence showed an open and robust organizing campaign on both sides of the proposition for and against the union that occurred after the election petition was filed and the evidence is undisputed that that activity under continuous to increase up until the time the election was held and then employees at the end of that process decisively voted against union and who all of the employees are who are for the union correct there anything in the record that would indicate how far into what sir what was meant by that and how the management knew who all the employees were who or what educating for you yes your honor so that the issue you're relating to was a conversation that took place after the petition was filed when the organizing activity was ongoing and the evidence in the record is from numerous employees called by the general council who admitted only agreed that they engaged in open activity the facility encouraging others he said all of the employees and those that want that information that have been jane i think that record evidence and i think remember johnson noted this in his dissent your honor was that this was open and notorious union activity at the time the conversation took place at the facility and as a and there's there's numerous employees who testified to the effect that they were engaged in open union activity at the facility and many of those if not all of those employees agreed with us at trial that the the level of activity at the facility after the petition was filed in leading up to the actual election  increased so it wasn't a situation where me were the union organizing effort to get the record as it was all subterfuge employees were trying to at the time this conversation took place to hide their activity from the company there was are were for union and working for the union that's that's my question and i think that's the statement in the record that i assume the statement is accurate and all i want to know is what do you understand to be the method by which caterpillar knew this information yes your honor that i believe that the observation of the activity at the facility was the basis for the statement that management knew the employees who were gauged in this union activity and i don't remember if mr geary specifically said all but i mean certainly from he was he said if he if his understanding was that the people who were involved or the people who were openly engages in this activity then that's the source of the information that mr yury would have been referring to because you know but realistically i mean workers about four hundred thirty five employees at the facility correct so i guess you know just merits question is one that i have as well  would management know that x number support the union and x number did not we're not talking ten or twelve people we're talking a very sizable workforce i understand your honor and again i believe from the perspective of mr yuri and his understanding of what the atmosphere was whether he could state with mathematical precision the number of individuals who were involved i grant maybe what was not permissible what about mr sponsor and mr apple and they made their own generally or to their supervisors that they supported the union or did not support so mr sponsor testified that before his conversation with mr year he in fact had disclosed his support of the union to another member of management at the facility he also testified that he was encouraging other employees at the facility to vote for the union he was encouraging employees to solicit him to sign authorization cards all of that he admitted took place after his conversation with mr yury and so again it would not be an unreasonable conclusion that someone who admittedly was engaged in that activity was someone who was not hiding his union sympathies but he was question indicate that's correct your honor but the question to mr apjohn was what did you think about the meeting you just attend he did not that's what the the board found it was a specific question post and mr applin testify that he was asked how are you going to vote in the election but what the board found he was asked was what did you think of the meet a meeting that mr butcher did not attend and so there was nothing about the question asked of mr applin who you're right your honor said he was not an open union supporter that necessarily inquiries concerning union sympathies does not violate section eighty one and so asking a known or even unknown union supporter what do you think about the union or what are your views on the union or asking another employee what do you think of the meeting in an open area i don't want to one brief conversation that from from their testimony incur included maybe two or three exchanges there's nothing about the context of that if either of those exchanges that would reasonably suggest asked these questions because they were being asked to explain to management how they thought employees were thinking about this organizing campaign but again you're there's nothing in the law that prohibits an employer from trying to determine what its employees views ar visa b the union and so asking non coercive questions in that regard does not place some some unlawful gloss on a non coercive question you make a difference of but you are an apple and transpired the fact that the supervisor in his mind was thinking i'm going to ask this question and i'm going to use it to think about to report back my views on how ploys are thinking does not turn the conversation into an unlawful exchange on less honor there's two two errors here let me start with the legal errors which is the board's conclusion here is that this bonus was unlawful because there was no different firm decision made regarding this bonus prior to the filing of the petition and that aspects of the program does not make it unlawful to announce it when the evidence shows that the decision to actually pursue the line of of activity that results in the payment of the bonus predates the petition  here the condition that the board relies upon which is the submission of the chairman's award was actually made in late two thousand and twelve the board has an acknowledged it in their findings and they also specifically budgeted the money to be paid in there correct and the problem i have here is discharged by the general manager personnel and he obviously craft was my bad when he found out about this little incident and use of bad language saying the gloves are coming off now and i'm sick of it and he was mad because he thought it was treating him like folks by putting up a guard so on but it seemed pretty clear that he was having actually going to go shoot or hurt personal he was just my head and he to actually the board did find that he issued a threat they they they they they they they try to downplay the threat by saying that he juxtapose it with some reference to the union so i would respect your honor i believe the finding is that he actually threatened percent  well again i we believe that first off that what mr purcell was reacting to he had had everything to do with his perceived humiliation to mr purcel and nothing to do with any other issue of mutual concern to employees and that when he was making the reference to doubt without using the colorful language that he employed the board found that he made a threat and the only question is whether in invoking in the abstract the union at the same time somehow allows you to threaten what the board found was a threat to  purcel and the mere fact that you in the course of doing so make some generalized reference to the union somehow allows you to engage in what the board found to be a threat in and few look at it outside the context of the n r a it that the that the treatment of mr purcel whether we all in our own perspectives would perhaps have dealt with the situation differently the evidence shows he was treated that inconsistently without caterpillar an employer employee did zero tolerance policy at the facility and again we all might make different decisions about that but we think the good morning may it please the court my name is valerie collins and i represent the national labor relations board with the court's permission on the board would like to split our time ten minutes and then five minutes for the intervenor union ok  substantial evidence supports all of the board's findings here that the company violated the act on numerous occasions first by interrogating two employees in two separate instances by yes yeah bother me about this business the management one this or your fifty vote so you was not a close election particularly quite a few people voting and it was not overwhelming but it was substantial victory for management and i don't see how asking these questions to the employees for example by the two supervisors how they could have affected sufficiently the number the number employees to make this guy have a vote and i think one of the bit there are two things going on in this case there are unfair labor practices and then there are also election objections and those are two different like objections and there are two different types of violations found before the court today is are only the unfair labor practices because it's well settled in as a company and missis as it must in its reply brief it's well settled that a board order for a new election is not subject to direct review and so before the court we're not even talking about these election objections i mean only before the court as an unfair labor practice because that's a separate wholly apart violation again consider the fact what the vote was and what effect it would have had we can't consider that's correct it's not before the court the court has jurisdiction only over the unfair labor practice and i think that the company's reply br adequately their labor practices based on the effect of the conduct of the supervisors i mean how do you go our separate out what the effect of it was from the statements that were made i don't understand how you can abstract away the question that i'm talking about well there are two there are two different legal standard mean there are two different types of violations of the act or two different legal standards the court of appeals views them differently it's not the same substantial evidence standard you could have independent unfair labor practices in here and they're in the union wins in the second election the company would could refuse to bargain with the union and the union would file a charge an unfair labor charge that says of the company fields fails to bargain with the union and at that point it's an unfair labor practice that would be before the court so it's not like there's not the court is never going to be able to review the company's objections to the board's finding concerning the election it's just put in your  concerned about would you have a case or i mean you're saying that we simply have got to abstract that albemarle flanking and they cannot make any difference as to the effect of this interrogation and that does not seem reasonable to me while i only watch well cause the supreme court said so i mean i don't have a kind of slam dunk insert but it is very well established that it's just simply not before the court there's binding six circuit  cases he says before it is it is but only the unfair labor practice and the sixth circuit has has evaluated this in on us electrical motors and said you know what it's pretty clear there are arguments to the contr i mean for example in their reply brief they talk about in the four circuit judge wilkinson has said hey in this situation this doesn't make a lot of sense because we're talking about the same thing but even in that in that opinion i mean it's a dissent and he acknowledges the fact that the binding circuit as well is from the supreme court says that before the court are the unfair labor practices at this point in the proceedings and not the election objections and so you can have an unfair labor practice with just one person impacted you don't have to have a huge consequence of you know hundreds of people were interrogated in two in a room you can have an unfair labor practice where it is one on one and often they three fifteen and at that point i mean i guess i may only answer is if it is it is clear it is clear but i also want to assure the court that while that is not before this court right now it's not as if the company never gets to raise those issues so it's not as if the board is saying you never get to evaluate whether we messed up or not on the election objection issues it's just the policy that you may not need to order to speed things along it's just the you will appear before the court and i know that my time is running out and i wanted to discuss just briefly the impression of surveillance violations now the law is clear that employer creates an impression of surveillance by telling employees that it's aware of their union activity without disclosing anything more so here when the supervisor was talking and asking mr sponsor about his union sympathies he actually he was in fact nervous and he said to his supervisor you know i do support the union but honestly i'm i'm scared that caterpillar is going to retaliate against me in response that supervisor said oh no don't worry we already know everyone who's involved in the union organizing campaign he said everyone and nothing more in the law is clear that when an employer says a statement like that in an employee is kind of left to their own devices thinking oh no you know how did he know how did he know that how do they know of this that by its very nature is giving the employees the impression that their union activities are under surveillance and it's the objective impression that is important here it doesn't it doesn't work you're saying but obviously in human terms of human nature the employer is going to be interested in finding out who is educating for the union they're going to go about investigating that and they are enti yes so they're even title i mean you take a step further there even though i mean there's no per se violation or anything wrong with even asking questions but the board addresses all situations and looks at all of those circumstances what exactly is wrong with saying we know everybody who is or everyone who is for the union after the response is we're all afraid you're going to and i mean if you take a step back practically just a sample if someone told me miss collins i really liked what you were wearing on saturday and nothing more and i think it  kind of obvious that that would be a little that would be a little creepy i'd be wondering how do they know that i mean without more the employees are left to thinking how do they know that especially because the language that the supervisor used here was so all inclusive he said everyone he didn't say people who wear buttons or people i've spoken to before he said everyone and i think the board there's more than substantial evidence to support the conclusion that that was a violation just i know i have here that the board should have viewed this safety bonus as a preexisting benefit and because of preexisting benefit i mean you're not announcing anything new chairman that we're going to go through that process and all that had been previously discussed yes and they could discuss it as much as they want to but what we're looking at with the board looks at here is what they told employees i mean the  don't yeah so just to kind of give a little bit of context here so there's there's actually they have may have discussed in closed doors so according to the company they made this decision in november two thousand and twelve to change the way they do their bonus system so in years past it had been this kind of quarterly system called dean's hearing where there were a lot of factors involved including safety attendance and other factors and then actually in that in november tw decided that they wanted to do something different for the evidence to the contrary that they know there's no evidence that they decided to do something different but the key point is what they told the employees and what the company is arguing is that in march in july they told employees you're getting this new safety bonus it's a done deal and so substories subsequent announcement in september a week before the undisputed testimony is the decision was made prior you have no evidence to the contrary the fact that it was pre determined i mean i don't i don't know how you make well there is that there's two different violations i mean the announcement is its own separate violation from the grant because the way the board views these is as an objective employee so if the company decided what was wrong with the announcement of serving the company's decision was made prior to this critical time that the decisions already made now what makes the announcement a violation because it could have a reasonable tendency to impact employees free will they mean it the week before the links improve to working conditions with the defeat of the union in the same way that if the company took away benefits a week before the election it would link inferior working conditions i mean that under your  benefits had already been provided to be given they cannot be announced during this critical period they must be put on hold and therefore the union actually the union members suffer because you're going through an election process since all these things have to be hold because they could be interpreted as influence the election even though the only evidence is no they were all decided to head it makes no sense  think it irks the very people that the board is trying to protect if the company had made the announcement after the union election it would be no different i mean i think the crucial factor is why did you decide to announce this the week before the election they were kidding out checks the week before the election they just made the announcement so i mean all the timing is everything ok not the announcement self but the time t timing is everything here a week before the election they said that they have this new bonus in that is what the board found in the time mean it hadn't been pre decided before i mean exactly they say the decision had been made but when they were going to announce it hadn't been made until after the election process exactly after the union was on the scene the week before the election as the first time they told employees you are absolutely getting this benefit in the company's argument is that i see that my time is expired we've finished ok the company's argument is that because they announced that it was a possibility before the union came on the scene the board erred by distinguishing those facts to a promise a conditional promise and a promise and there's ample evidence to support the board's findings that those are in fact two different things and i get my time's expired for the foregoing reasons we would ask  i remember i may be wrong one of the members of the board was concerned about the fact that this interrogation process could not have affected the outcome of the vote said something about that and member dissented i can't remember whether that was a basis or one of the bases of the dissent but didn't one of the members of the dissenting member did not say that it should not be an unfair labor practice violation simply that it should not be a grounds for over an independent grounds for overturning the election that dissenting member did not descend as to turning over the election with regard to the benefit issues that have been more recently discussed but we're not reviewing that you're not reviewing the decision to set aside the election our time of that comes right it is very challenging but you know and i'll talk about the interrogation in a moment for a while i do believe that i'm very labor practices occurred and also the u a w did provide that evidence of dissemination of those two conversations to at least twelve roughly twelve thirteen employees so at least twelve thirteen employees we have evidence knew about that at the time they voted of those two occurrences but i wanted to clarify a very important point about the safety bonus the decision to give the bonus was not made before the union came on the scene in november two thousand and twelve caterpillar decided to set up a program they set aside they had to submit it to the chairman of the it was a chairman's bonus criminal they had to go through a process the last average was to submit it to the chairman of caterpillar i guess correct and only caterpillars chairman could say yes or no about that's not correct and that's what distinguishes this case from the cases caterpillar relies upon the bonus was triggered not by winning the award but by submitting for the award and in march and in july this of stansell evidence indicate caterpillar logistics in clayton ohio had not yet decided to submit its submitted in september before the deadline the election was september twenty seventh the deadline for submitting with a temper thirtieth they decided to submit early and announced ten days before the election hey we submit it we're giving you this money it caterpillar in its briefing set this up as a simple if that in november two thousand and twelve if they submit for an award then you get the bonus and that's true except it's in if we feel like it that because it was totally in caterpillar logistics and clinton's hands whether to grant that bonus there was no criteria no minimum threshold required for making the submission they simply decided during the critical period to make the submission and then manipulated the timing of the announcement to occur within ten days of the election as a process that could be  union situation that is what i'm saying your honor there was no purpose to announcing the bonus at the september meeting the bonus again this ship born in favor of doing a why would the head discussions about it before union situation room well if they're with that with the employees right what they told the employees is this is possible if we can submit and it is incorrect that they have employees were told the time frame it at the march meeting at the march meeting there's testimony that the plant manager at the time read the slides verbatim and the slide said payout date to be determined and that the period of examination would continue until year end yet the submission was made in mid september and told to the employees on september within ten days of the representation election had the union not come on this is anything in the missional announcement to the employees that was any union or that they were anticipating problems beforehand or anything like that not in the initial announcement to employees but there is testimony that even in november two thousand and twelve suggest that you cannot consider the direction of election we would suggest judge wilkinson in his concurrence not his dissent and entertain it got it right the case is that the circuit courts that the supreme court cases that say that you can't review a direction of election have to do with whether an election should be held in the first instance the courts have taken that ruling and and it and extended it to apply to situations where there's already been an election and now there's a direction of a second election you're th is there is not a six circuit case was on the only six circuit case applies the rule is counsel suggested judge will consider in the fourth circuit in his concurrence and there is a fifth circuit case having to do with the disorder fake certification election that both reached the conclusion that it makes no theory that is something improper what is the reason by its principle that there is something improper in taking into account the effect of the unfair labor practice as you are considering whether there was an unfair labor practice your honor i believe that the premise of the supreme court's cases the cases that counsel cited is that they should that the court should not get in the way of letting an election go forward that that's not a final order and as a matter of these reports say that there is no relationship that a court may consider even though there is clearly in fact the relationship between the unfair labor for practice and the effect of it that is to say some unfair labor practices depend on what the effect of that is going to be on the election itself yes your honor and we can't consider or that effect is again i think in the instance of a direction the first election the supreme court said that that was the case we don't think that that's properly extended to the situation where you have parallel objections and you will p s and we're talking about the direction of a second election just the timing issue because yes so it seems clear that this benefits program was being discussed by the company to at the end of timing of the announcement that it was announced one week before the election and that timing and context of them unfair labor practices that could have been announced later weeks later or whatever just just right on the eve the election yes your honor so two things first mr slocum while his presentation did say day to be determined there are about a testimony in the end the record is that a manager policy was at that meeting said that mr slocum said that the submission would come in the fall and that the payment would be made in the october timeframe that was in march of two thousand and thirteen the board doesn't acknowledge that evidence but there's nothing to rebut it so the timing had already been announced to employees whether they choose to recall that or didn't recall it the rivera testified that the timing of the submission was dictated by the corporate offices it was september thirtieth is the date that the submission was to be made this was the last employee meeting before the submission was going to be made and i'd only they did just say hey here's four hundred dollars you're going to get spanked the manager of your got up and did it extensive presentation showing the substantive safety improvements that caterpillar had realized that justified the submission of the war there was one condition in this program and it was said in tw if we submitted chairman's award submission then this payment will be made and the criteria for that submission is safety manager rivera testified was stopped by the corporate offices this was a sort of caterpillar at the facility subjectively deciding whether or not it felt like giving employees money so there's evidence that the timing was set in announced before the critical period and the law is in fact at the torpid case by the way and stan and i and both of those cases there was no announcement to employees before the critical period and nonetheless this court and the board found that those payments in actions there were perfectly lawful because the employer was able to demonstrate a substantial business justification for the timing and we would suggest that the continuum activity from late two thousand and twelve all the way through september demonstrates that there was evidence of the timing as to when it should be submitted as well as when the payment could be expected and for those reasons we would ask at the ports or not you can fucking you with that thank you all counsel for your presentation today we very much