i have not previously had an opportunity to argue that and i thank you for the privilege of doing so this morning this is a petition for review of a decision by the national labor relations board affirming  the table i know that you've looked at this but i think my few comments i want to make are better understood if we have a time table so may twenty second is when the protected activity took place edmonds at the time had been employed about two and a half years during that short pretty time he had nine previous incidents where he had been disciplined three of them told him that if you make another mistake you're going to get fired you're going to lose your job subsequent to the may twenty second meeting there were two incidents that admins was involved want to make thirty of that inviolable involved a vehicle accident one on june fourteenth that involved a complaint by a customer to the office of the president of direct both were investigated by zambrano the decision maker and neither resulted in the terminations of mr edmunds the triggering event that resulted in his terminations occurred on july twenty first two thousand and ten when mr edmunds was waiting in line to get equipment which is used to go and do installations of directv services and customers homes there was a line and he became agitated and i apologize but his comment to his supervisor mr zambrano was fucking do something about the fucking line this is bullshit that if we have to wait for ten hours or other people cut in front of us this was said in front of at least forty other employees at mr zambrano supervised the judge and the board completely concluded that mr edmunds terminations for this event was motivated by his protected activity and that we had failed to carry our burden to establish that mr edmunds would not have been terminated absent his participation and that protected i say hogwash the first issue the court is well aware of the right line analysis deals with anim and the board concluded that the general council met its initial burden to establish that that was unanimous on the part of direct t v and to do so under a right line they have to establish that the protected activity was a motivating reason for direct terminations of that it can't be done in this record it can't be done because of the two intervening events that happened from may twenty second to protect that there's a lot of confusion about when this meeting happened that admins voice the pro union sentiments and i'm confused about why there is confusion because it would seem like there be a record of this meeting that mr dymock attended its center i mean this would seem to be the kind of thing that you would be confused about and yet here we are and there's apparently still confusion and that in turn affects how we the lens with which we look at these two the accident and complaint incidents because if they happened before the pro union statements then they're really not that relevant the minister of law just didn't care what happened because he just dismissed so he never made a finding on it there was an issue in connection with this and if you read the record the record we afforded the board attorney at that time to introduce evidence to establish that our testimony was wrong that it didn't occur on may twenty second we left the record open they never produced the evidence to be able to establish some memo or some other document that they thought establish that the meeting didn't occur on the twenty second we actually introduced testimony that established it was may twenty second they said i kept to come from somewhere to attend this meeting yes mr democrat it travel records of that  no he didn't have to travel quite that far he was in charge of the southern california region which include los angeles county san bernardino county and riverside county is in charge mileage or anything that he's got a company vehicle and he didn't have to in some way be able to establish that based on the fact that the board chose not to produce whatever evidence they had regarding the memo that established that this meeting took place on the twenty second i think under the adverse  inference rule we can only conclude that they didn't have any such evidence and these two events then become critical because i agree with your honor that if the meeting took place at some other point in time then you could reach some different conclusion but they all j i didn't care because he dismissed both rid of the person then he can use those incidents as a pretext and so the your argument is kind of the contrary having not used them is pretext that means he's not trying to but i thought the m j found that's him broncho was going to just suspend think the inference that it was mr demick if mr demick was going to influence the decision to terminate mr zambrano i mean mr edmunds for the july twenty first incident he would have influenced them to terminate him for the other two incidents why wait i mean the argument th to the other two incidents go up the chain there is no evidence that this incident the july twenty first incident went up the chain none whatsoever that in one of the chain they were all handled in the same way inferences i'm not going to fire you i'm just going to suspend you and then a week later i fire you something happened to change my mind that's the reason for the inference whereas with these other two incidents there's an you know apparently this is within sopranos wheel house and he's able to just addresses and he says you didn't cost a car accident and the customer was wrong in the complaint and moves on and there's no in no reason for dimmick to get involved but that's exactly my point and i think your honor makes it well demick this is here's the argument union organizing is occurring at this facility that's a timely thing we've got to get rid of the ringleader it's important let's get rid of them at the first opportunity the first opportunity would have been two weeks later on may thirtieth when he ran into somebody in his vehicle the unrefuted evidence is that everyone who causes an accident in a company vehicle gets fired that definitely is a high risk it's situation for my client you otherwise get terminated zambrano investigated and concluded i'm not going to terminate you for this i'm going to find that you want that fault even though the insurance company according to the evidence they submitted in the adjuster submitted said they did their own investigation and they concluded that our driver mr edmunds was at fault there dirt driver was stopped in the driveway standing still and that it was mr edmunds who ran into her the judge dismissed as that and simply says there's no way on this record that mr edmunds could have been disciplined for the circumstance ignoring record evidence this subjective weighing of the evidence which in turn causes his decision to be unenforceable because it's not supported by substantial evidence because that decision that doesn't consider the entire record or that ignores record evidence can't be considered to be supported by substance eleventh's but the thing here is that there's two incidents i could understand if we had one but there's two the second one is a complaint from a customer which is a big deal you honour's might not be in the situation i have i'm waiting for someone at home for and i have noticed that cable companies care about market i'm happy to hear it's a big deal but it is a big deal that's why you need to rect no commercials but it is and there were acquired and in this case mr edmunds did call and say i'm going to be there at two o'clock at three fifty five almost two hours later the customer still sitting there pulling out with little areas left saying where are you edmunds does call and says i'll be there by four thirty and then he's not there by four thirty mr edmunds defenses hey i call the guy and told him well that's that's not good enough that doesn't solve our problem the judge dismisses it and says oh there's no way that mr edmunds could have been disciplined for that that is an irrational evaluation of this evidence there's no doubt that mr zambrano if as the board alleges was clouded by animists to want to get rid of mr  edmunds he could be used either of these two events to make that decision and to fire him the fact that he had elected not to makes it impossible to conclude that the terminations on july twenty first was somehow motivated by events that took place in may two months earlier that's your answer then to the putting him under the quality control review immediately after his comments that that's kind of whitewashed find these other two incidents of not doing anything to him yes in part and also in addition that if you look at the actual testimony it mr edmunds himself said yeah he came to me and he said sort of sarcastically hey we're going to q c all your jobs well these the evidence shows  read the entire record that these two were sort of friends and friendly and they talked to joe among each other so the comment by mr zambrano that i'm going to q c all your jobs is not a threat mr edmunds never testified that he thought it was a threat more importantly there was never any evidence that any of his jobs were ever q c none and everyone's jobs get q c that's how we did it that's how directv does such a great job with the services is that every job gets keep seed sorry i'm not putting in a p telling someone you're going to be q seed would not be unusual because everyone gets cues seat on a regular basis so telling me that i have to be to work on time tomorrow if you told me and reminded me you need to be on work a time tomorrow everyone needs to be that wouldn't be a threat so saying i'm going to q c your jobs isn't a threat this is nothing more than a tortured effort by the board to try to justify a result that can't be justified that that threat is not but i agree with your honor that i think the two intervening events involving mr edmunds over what over ways that argument that oh well he made this threat so therefore it was known that leaves this notion that he said as the evidence that he that typically that's the part that's the operative term there typically but not in all cases and in a case where the judge is unable to justify why he had a particular credibility finding this court is not bound to it and this dancers and if i was asking leading questions they had competent counsel who could have objected to them that as a basis is a conclusion it's not a reason to the basis not to believe mr zambrano particularly when you look at the fact that mr edmunds is a certified liar edmunds has a strong statement that he said when he went to the board and first files a complaint he said when i got fired by misters and broncho they didn't tell me the reason why i got fired his testimony at the hearing changed oh yeah they told me i was fired for insubordination that's a big difference i didn't they didn't tell me i was fired and then i was fired for insubordination he testified that one of his coworkers mr uribe had told him that some bronco was searching around the facility asking people who was involved in you know who was involved in union organizing no i never told mr edmunds that so again he's impeached on his own testimony and then finally he's impeached because according to his own testimony he said that when he went to the board i've only been disciplined three times i'm a great employee he was disciplined nine times there's a big difference and mr edmunds himself admitted there was a big difference between those at that frankly your honor on the issue of this suspension what a suspension or not you know and then he was terminated i say so what if mr some bronco sat down and said you know i'm going to suspend you and then reflecting on it said you know what this really undermines my ability to be able to manage this facility you using this foul language in front of all those people i've given you every benefit of the doubt you have nine warnings we have two more incidents i give you the benefit of doubt and both of them and how do you repay me you swear at me in front of all my employees i only have thirty nine seconds left so if i could just but regardless the under these facts we clearly established that mr edmunds would have been terminated regardless of this protected activity we established that there were five other people terminated for swearing at supervisors the judge ignores it he just ignores it was as well they're all different they're not different it shows that we have a consistent record of terminating people based upon this exact same conduct who can argue the guy has nine warnings he's there nine and a half years we give him the benefit of the doubt and two more circumstances there's no dispute about what he said and what occurred no person in their right mind could say that's ok even edmund said i want to apologize because i knew what i did was wrong how can you in that record not say that we didn't carry the burden to establish that he would have been terminated regardless of his protected activity good morning i'm heather beard from the national labor relations board and i'll address a few of the statements that were made by opposing counsel in his presentation first of all the two instances that took place in the date here but i'd like to overall begin by saying that the administrative law judge did not ignore anything the record in the decision by the administrative law judge thus affirmed by the judge takes into consideration all of the facts that were put before him in this record and what happened was there was a discrepancy regarding one was that meeting that took place the dimmick meeting was it may twenty second or was it later was it sometime in june as mr edmunds testified there was discrepancy between the general counsel and incidents of the couric and customer complaint if they're after they're protecting their t v when everybody's looking for a way to get rid of adman's then suddenly they're given one by this car act but they don't take is to say it didn't matter but it didn't it wasn't relevant to the judge's analysis because the judge's decision essentially assumes that if we go with the may twenty second date and we go with the dates of of the intervening incidents if you will that even though those two intervening incidents took place they don't negate or dissipate that animus that was held by mr zambrano and so the analysis the judge in a footnote does do her to me it's directly relevant if you're saying ok you did something  a mean man i'm just looking for a way to get rid of you that looks good you know cover my tracks and then i overlook i don't take too giftwrapped opportunities to get ready you then that would seem to undercut the argument that i was trying to get rid of you cause you gave me two gift wrapped opportunities to do it and i didn't take him to mean that you can i'm not saying it's dispositive of the case but to say it doesn't matter it's not really all there relevant or whatever i don't understand that the judge to be sure the judge did not determine what the date was of that meeting but where i disagree with what you just stated your honor respectfully is these were not to gift wrapped opportunities to get rid of him if you take a look at the cases that are cited by my posting coun in his brief about the proposition that you know if you don't take advantage of an a mistake one time it's certainly can be seen as a later instance of animist being somewhat negated if you take a look at those cases those are all instances where it was basically not a conflict as to whether or not there was misconduct there were instances of employees who were without argument late repeatedly in various instances where it was sort of a gift wrap opportunity had the person had enemies but here as the edmunds mr edmunds says no it wasn't me it seems like who you believe is a credibility question which is give represent bronte go i'm sorry i don't believe you i believe the insurance company or the other lady or whoever was that you hit and there's not going to be one hundred percent clarity or certainty about who caused that rocked this well i mean i presided over a lot of those trials and they were not one hundred percent beyond a reasonable doubt type of certainty but i guess the burden of proof that trying to argue there was a one hundred percent reasonable and reasonable doubt that that there he was not at fault in the current there was actually evidence of an accident report that he did fill out in detail which in the accident report it says that the woman who hit him had admitted that she was the one who had hit him and he filled out a pretty extensive which is in the record accident report that some runner was confronted with and the point that the judge was making and all that i'm making here is that given this particular record these two instances were not ones where there was nothing for mr zambrano to reckon with other than like the swearing incident his own experience of that incident where it was he was able very subjectively to make the final determination if you will as to what the discipline should be and so even though these two instances took place in between it does not negate the evidence that the board found and i think what's important not to pass by is the q c threat the q c threat that mr zambrano made a day or two following the dimmick meeting to be that he was going to be surveilling mr edmunds and he didn't there's no evidence in the record that he did do that but his statement i mean it seems to me that this i was trying to get to an outcome and and  found a way to support the opposite of what judge is supposed to be you should write your findings of fact before your conclusions of law it sounds like this was a reverse let's go try to find something and what was found seems a little thin now we have a very deferential standard view wreck we have the insurance company saying it's edmunds for we have him saying it's not and would you say well that's so obviously the same thing the customer complaint i am an irate customer and obviously was late to the customer's house whether he called or not or whatever it seems very result oriented explain to me how it's not how it really seems to be objective the first thing that i would say and in defense of the judge's decision is not being result oriented is there was a big dispute in this case over whether the activity that he engaged in the swearing in front of his supervisor and his coworkers was protected under the atlantic steel line of cases which says that you don't lose protection under the act if you're complaining about being in a line and it's working conditions and did he swear and did that lose protection of the act the judge in fact found he did lose protection of the act for that and did not go with the general counsel's case which was the initial thrust of the general counsel's case which is his very action of swearing at his supervisor about a term and condition of employment was protected so i just point that out to say this wasn't a judge finding every single thing in favor of the general counsel but in terms of this particular finding here we've got the judge assessing those two instances in light of the fact that there was a statement of animists that was made by some importantly zambrano was in that meeting where demichelis the vice president those of the southern region operations that's his second level supervisor and so witnessing the statement made by dimmick in that meeting about unionization and having mr edmunds be an loud outspoken advocate in that meeting in front of his supervisor is something that the judge that the judge looked at buttressing the finding that we have this q c threat of retaliation and even though  point out judge this didn't take place the key purpose of of of that finding is that we're now in the right one unburdened where the there's been a g c has established that there has been protected activity human activity knowledge and which shows that there is a motivating factor in the discharge was union activity unless mr wolfowitz can come in show by a preponderance of the evidence that the employee would have been fired anyway and that is the import import of what mr zambrano did when he initially told mr edmunds he was being suspended in fact the credited finding is that mr zambrano told him specifically he was going to not be terminated that he was coming back to work and then when he did come back there was no explanation for why it was that he was now being discharged and so that particular piece of evidence is in the right line analysis where the burden is on the company to demonstrate it would have done this anyway and that's where i believe the company's case falls apart because of the credibility determinations which which i would like to say something about this is absolutely not a case where the credibility determinations are not justified in fact my opponent did speak to part of what the judge said as to why he was discrediting mr zambrano for his reasons for discharging mr edmunds but not the full comment the judge found i believe it's footnote nineteen of the judge's opinion he did not find mr zambrano credible he found that he gave succinct answers to leading questions in that he seemed i might be paraphrase here he seemed to be answering in a way that would benefit the company and so with that i would have a look at the motorola case from the which was cited by my opponent in his brief which basically has almost exact same kind of finding by a judge by an administrative law judge where the court describes it as brief but clear where one witness was discredited based upon statements similar to what the judge made here so i i would take strong issue with the fact that here any of the credibility determinations were either result oriented or not supported by the judge and that's why given the the facts here and that is you point out the deference given to to to the board here is based on credibility determinations and a consideration of fair consideration of all the evidence that was here in this case the one other point that i would like to make regarding the reply brief of my opponent there's a suggestion in the reply brief for the first time that there was no union activity specifically engaged in by mr edmunds and i would like to say that the is our statement of fact demonstrates in all the transcript sites their show mr edmunds did speak about the union in fact in the company's opening brief they admit on page six that even dimmick himself says that and another employee actually did testify did did speak in the meeting about union representation and that they thought union representation was a positive things so so in this case under the right line standard i would urge this court to take a look at what pieces of evidence we have what inferences the judge made from the evidence and the credibility determinations and in force the board's order regarding mr edmunds if there's no other question i will sit down thank you renee stay with my five minutes also even though we don't have much time does seem to me this is basically the case it comes down to weighing the evidence deciding the credibility of witnesses we certainly have much in your favor and you made an able argument but how can we really deal with this on our standard review where is the legal problem or just overwhelming factual problem that we would have to  overturn on i believe the answer to your question your honor is that in order for the decision of the board has to be supported by substantial evidence we cited lauren vs an alarm b for the proposition that where the board the judge in this case ignores substantial evidence you don't meet that substantial evidence standard so here this administrative law judge ignored substantial portions of the record to judge haines point that i think we completely lose the fact that the judge says oh yeah there's no way that you could have terminated mr some brown a for this he ignored the relevance of the evidence there were acquired a waiting here you had a look at all the facts for goodness sake it's a car accident every car accident the world almost is disputed he said she said the fact that some bronco who is supposed to be clouded by this idea that i hate unions and i have to get rid of mr edmunds said no i'm not going to fire you has got to overwhelmingly establish i'm not out to get you if i was this is my first shot two weeks after you made these supposed to protect comments about union organizing activity and i didn't seize it so ignoring record evidence and my brief is filled with the circumstances under which this judge ignored record evidence and by ignoring the record evidence  seized all that all i'm saying is i'm asking you to buy it as a juror or to my statement i'm just saying that the board has some latitude in figuring out what to make of this kind of it i think the board only has latitude to be rational and not to ignore evidence that terminations on july twenty first didn't go up the hierarchy mr demick never knew about it mr demick wasn't aware of it mr demick wasn't participating in it just like the event on may thirtieth just like the event and inhofe know your counsel opposite is relying on sam brown animists who are the key to q c comment as sustaining their initial burden to prove that union activity was a motivating in so then we can't ignore zambrano we could only norris and brown a few sort of pawn for some cats are whatever the right analysis is for dinner somebody else he's the main player here if he's the guy that had the animists that meets their motivating factor then he then his conduct has to be in play and then when that's back at the students exactly that's exactly where i'm at is that the judge ignores that evidence the other thing the judge ignores to your question  the judge ignores that there are five other people terminated for swearing at their supervisor three of those cases were situations where one of them was on the an answering machine and you swear your supervisor and you got fired another was just when a one on one meeting another was passing in the hallway and they got fired for those comments here you swear in this very obscene inappropriate way in front of forty or fifty other employees and to respond to the board attorney's comment that that somehow shows that the judge wasn't working toward some pre determined i would come to judge made that determination because no reasonable person could say that that language in the workplace and front of forty or fifty other employees is protected by the act there's no way that you could he didn't have any choice he couldn't have concluded that somehow that's protected because there isn't any case law or any other reason that would support such a conclusion i want to end where i started thanking you for the privilege to appear in front of you today and wish you well we both did well maybe you'll both be back but not on th