morning may please the court my name is brian gershon going on appearing on behalf of the petitioners help bridge management l c and the six sub contracting set centers petitioners appeal boils down to one main point the board decision was outcome determinative and required the board to squeeze the facts of this case into a number of ill fitting legal theories and ignored any facts that didn't support their desired outcome first the board chose to ignore its own and second circuit precedent in regards to the joint enclosure issue without on analyzing the traditional factors of a joint employer status for example who hired fired disciplined provide exercised immediate control and supervision over the employees and instead the board found dispositive and determinative one fact that the sub contracting centers entered into a collective bargaining agreement with the union second the board incorrectly determined that the sub contracting centers never terminated their employment relationship with their employees and simply ignored what the sub contracting centers did to inform the union of their sub contracting arrangement mr mehra in his concurrence which by the way knowledged that the majority reached the wrong conclusion on both the join employer and the terminating employment relationship issue  employer argument would be quote unquote dead on arrival at the second circuit because it didn't follow second circuit precedent under eighteen nineteen coins that only one theory is necessary that's correct your honor on a number of cases which we maintain are distinguishable they are cases that deal with repudiating the collective bargaining agreement or refusing to bargain with the union here what the sub contracting centers did was rehired these employees who were h s c employees at the time and simply took them back as new hires there was nothing in the parties collectively bargain agreement that precluded the subcontracting centers from rehiring these employees as new hires go back to the joint employer issue though your second in that is there seems to be some disagreement on the board of the processing of grievances during his one year period  majority pointed to processing three grievances in the ordinary course as if health bridge maintenance employer status and then there were two employees i think that transferred to different positions within the three homes how does  contract still govern the rest of these three employees those types of employees well the first employee put on he filed his grievance before the subcontract an arrangement even occurred and so just like it still process after it did laundry employee during the sub contracting period that is correct your honor there was a time clock that was installed by a says she for the sub contracting agreement but the to go back to to y to your question your honor nothing perk ludes this center from processing grievances under the contract much like if an employee was no longer there even though  zakat left over grievance it would have been yes your honor but not none of that addresses the over transfers to the other jobs though that those two employer employee use that occurred right they want from h s g employees back to being health bridge employees during the period right into they keep their seniority for example they don't your honor not once we did it once the centers rehired the centers even sent to the union saying h s she was going to honor the seniority subject to the c v a we didn't not repudiate or fail to address the new hires under the c p a they were being hired back in his housekeeper and laundry positions which were covered by the parties collective bargaining agreement  addressed why this had occurred it was ruled by the a l j to be in fact temporary misc amera acknowledges that in his concurrence but there's nothing in the party's collective bargaining agreement that precluded the sub contracting centers from ending the sub contracting relationship and then taking the employees back as new hires in fact the seniority provision specifically speaks to this article nine a says that seniority is the length of time that employee has been continuously employed in any bargaining unit by the center in article nine b as a follow up to that says that employer you seniority  retroactive to the date of the employee's most recent hire date the record contains no counter explanation by your client for the to ordinary circumstance of allowing all all of its housekeeping and wondering employees to be hired by somebody else for fifteen months and then bringing them back again but there's one obvious reason for it and that's to shed their seniority and to be able to pay them thirty percent less per hour that's that that is certainly one reason and ploy i would do that if the if the employer could get away with it and since there's no other explanation offered isn't it clear that that is the reason well i would say no to that your honor i do it i understand you have to say no but i don't understand what your next sentence would be the only other thing i would add to that your honor is that within the parties collect and i see my time's up if you don't mind i'd finish means if the parties collective bargaining agreement the sub contract and provision itself does not preclude the sub contracting centers from rehiring the employees as new hires if the union had wanted to address how these employees would be treated if and when a sub contract in arrangement ended and they were brought back to this to the centers that could have been bargained for there's no wall that the board points to besides hiring everybody without seniority and me without the union and having this arrangement in which you basically transfer them to somebody else and then transfer them back again if it isn't a laundering employee i understand what the court is saying i would go back to the same answer which is the contract didn't precluded and this is not along the line of cases of a repudiation of the collective bargaining agreement the employees were still taken back and subject to the terms of the club to your client didn't negotiate with the union about whether their wages would be reduced to stymie wages without any seniority bumps there was nothing that's correct but there was nothing in the in the union would be interesting but there was nothing in the sub contracting provision of the collective bargaining agreement that precluded the sub contracting senator from taking them back as new hires and our position is that if the union wanted that they couldn't bargain for that the kind of did in the section nine f's no bargaining unit work shall be some contracted unless the sub contractor agrees in advance to retain basically seniority and then ninety three lists specific ways in which seniority can be lost in which does not include a addresses that issue where it says that this in your should be defined as the length of time an employee has been continuously employed by the center and in this instance the dissenter was no longer employing them but if you recall if the sub contractor is required by the collective bargaining agreement to maintain their seniority and it's not rehiring that is not a basis for losing seniority what you want is the argument that the  maintained but the contract doesn't speak to is when the employees in this instance were hired back in the sub contracting arrangement had ended the contract to simply silent on the router and that's why we took them back is as new arguably that that would be true as well your honor it's the same thing under the contract it's not i mean this was a fifteen month arrangement but yes be pretty tempting when that for an employer to basically reduce the seniority of laundry employees some of whom had twenty years or more of seniority accrued over night as probationary new hires and in doing so cutting some of their wages by more than thirty percent by throwing them off their health insurance by throwing some of their families off health insurance because probationary employees were not entitled to that and other benefits under collective bargaining agreement and and all along the end employer health project provided no legitimate explanation for why it did so and the question on those facts by the court in reviewing the board's decision is whether the board reasonably found that that was a violation of health purchased statutory duty to bargain in good faith with the union over changes to its employees terms of employment including modifying these contractual benefits and although the case involves three separate independent independently sufficient bases for the board's decision and as a result of the board's decision and the briefing is somewhat complex at heart the issue before the court is is fairly straightforward as the board notes first under what we can refer to as as acting chairman mr mary's reasoning which the board adopted and which as we point out in the brief is it is largely conceded by the employer that under established law an employer cannot utilize these kind of short term operational changes to opportunistically circumvent its bargaining obligations for your honor to go to one of your previous questions the board did not specifically rely on an alter ego finding but it analogized to alter ego cases because this case is actually easier than an alter ego case because easy well your honor in an alter ego context there is a requirement that the board needs to find it bad intent essentially because you have a separate corporate entity and you're finding that it was a stablished as a sham and as a result it's bound by the collective bargaining agreement this is even easier because it's the exact same employer simply resume to being the employer after a short period of time so the board does not even need to find bad intent to find a violation here and those are all the cases that are cited and forces in the brief for example involving relocations of an employer's operations or a relatively short term shutdown which again is more difficult because when you have a shutdown the work actually ceases for a period of time whereas here the employees experience no interruption of their same day to day work we also contrary to the employer's arguments as brief cite cases that specifically involved temporary sub contracts for example the effen a food sales case which was a board decision enforced by the tenth circuit and which involved a fifteen month sub contract and when the sub contract ended and the original employer resumed operations the board in the tenth circuit held that the employer was still bound by the existing contract and as a result it cannot ignore the employee's contractual seniority recall rights in addition as has been discussed somewhat in questioning the board made a finding of fact here that the employer had no purpose for doing any of this other than to get out from these contractual obligations and the employer has still not offered any explanation the board through an uncontested adverse inference from health bridges refusal to call any health bri witnesses the board also relied on the fact that there is an rebutted testimony from ploy who said that essentially from the start of this temporary sub contract employees were told that the payroll would eventually be going back to health bridge and so again this is not an alter ego case where the board needed to find bad intent but the board found and it's essentially undisputed that the employer was acting with bad intent because its only purpose was to cut second in the order that we briefed it is the board's finding that the employment relationship and temporarily going back to the first one the first one is distinct because the the court is now need to find that there was an employment relationship during the temporary sub contract so under the first theory even if it's assumed that health bridge temporarily ceased being an employer it would still be a violation under that precedent and now turning to the second theory the board found that the employment relationship for purposes of the act  never actually terminated by analogy to common law principles in consideration of common law principles in the common law of agency because as the board explained the employees continued to perform the exact same work as they always did the only thing that occurred from their point of view was at one point they were informed that there had been i want a real question about that second category would key just tell me would the third theory is yes i apologize your honor the third theory is the joint employer fine is that it was  second one the second one is finding it separate from join employer that the board found even setting aside h s t status health bridge never ceased being the employer during this temporary subcontract and the third is that there was also out the health bridge during the one here period had no effect on the hiring firing discipline supervision or direction of those two types of employees and in fact had to fill out all the new forms that you'd find  but all throughout the duration of the temporary sub contract health bridge mandated the parameters of all of the terms that you just listed so for example health bridge required h s t adopt to the entire workforce health  she too to adopt the contractual employment protections so although h s t was responsible first day to day supervision of for example disciplining of employees or  required to do so within the parameters of the collective bargaining agreement between the union and health bridge and those terms were dictated to h s g by health bridge so for example when health bridge argues in its brief that the borders relying on a single factor that's not the case under this course precedent and one factor that's considered enjoin employer analysis is whether the punitive joint employer participated in collective bargaining between a union and a subcontractor but that's not at issue here what's at issue here is because of a collective bargaining relationship with the union health bridge mandated virtually all of the employees terms and conditions of employment in the parameters of what that's when you have a series calling the the do that you had joint employer to your first the first part of your question your honor i would disagree that a single factor because it's a single note of a motivation for the employer but the effect is that health bridges but it's just you your honor was not party to the collective bargaining agreement the reason that h s g had to comply with all these different terms of employment is because health health bridge was mandating it for the duration of the sub contract and to the bridge was required to do that under the terms of the job that's correct your honor and to go to the second part of your previous question the board went out of its way to clarify that it was not finding or holding that anytime you have this type of contractual arrangement that there is a joint employer relationship the is very careful to say that i was relying on a specific facts here including the fact which is somewhat unusual that here you had a temporary sub contracting period which is intended to be temporary from the start and at the end of which the original employer simply resumed its role so if you had a situation a normal sub contract or an employee was saying we want we don't want to be in the housekeeping laundry business anymore and we want to sub contract this these services out going forward permanently which is usual contracting situation that might be a very different factual picture that the board would be confronted with i think what is unique here is that this was a relatively brief temporary window at inter it occurred entirely within the it's to be governed by the c b d and that's what the c b s says a lot of collective bargaining agreements saying that so that in effect any time you sub contract you could end up still on the hook as the employer because you are through the c b i requiring dozens of compliance and terms of employment by the by the year of the the company that takes some contract yeah and i fully understand your honour's concern but again i just reiterate that the board was very careful to say that's not what i was finding and it rather relied on the unique facts here including the temporary status and including the fact that health bridge essentially continued to act as an employer during this relatively brief temporary sub contracting period for example and processing all of these grievances which i've seen them over time but if your auditors are interested in the three grievances that the board involved one of them arguably did your honor franz pecci on applied to transfer to the maintenance department several several days before the sub contract but he did not file a grievance until he was allegedly an h s t employee and that grievance was entirely processed with no involvement by h s t after the temporary subcontract the second employee caught at parks hill was a per diem employee on both payroll so she was in fact receiving paychecks from both health bridge and h s t but what's significant is the reason she had a grievance during the temporary subcontractors because her guaranteed part time hours with h s t were eliminated and under the contract section ar ticle nine of a contract when there is what's essentially termed a layoff of guaranteed hours an employee then has a contractual right to bump another employee in another department so as a result of a what it was essentially a layoff by h s gee ms parks hill filed a grievance directly also involved departments health bridge other than the housekeeping laundry absolutely and she was granted determinative but i think as the board found this is evidence that health care is continue to treat these employees as part of an integrated unit and continue to act as a essentially unified employer of all the departments and i would add that health bridge argue that when these employees were transferring they were only being you know quote unquote rehired into health bridge and that they had remaining contractual rights of use of the health bridge even though they were h s t employees but if that were the case they would only tend to support the boar ultimate finding which is that when the sub contract ended and these employees were again quote unquote rehired by health bridge they should have retained their records and you already as is required under article nineteen of the contract which lists five determined that simply being party to a sub contracted arrangement does not make the sub contractor in the putative employer join employers more specifically yes the h s she needed to abide by the c b i that's exactly what the sub sub contract in provision stated but just because the sub contractor needed to abide by a that's not a kin to the same as hiring and firing just because there's a just cause standard in the contract that's not the same as administering discipline and and those criteria are or the exact criteria that the circuit is full service sub contracts had the deliberate purpose of circumventing the c b s only that they considered these to be temporary in nature and nowhere do they state that the full service of contracts were sam terms were