my name is douglas if you please the court and i'm counsel for the petitioner slash cross responding you would have west this case in its core really concerns of finding by administrative law judge that three violations of section eighty one of the national labor relations act occurred a one was an alleged threat made during a uni information meeting the other two were alleged unlawful interrogations with elements of  futility generally speaking these decisions can only be made based upon the substantial evidence on the record as a whole and what i'd like to talk about the sworn in i like our discussions focus on this morning is the concept of the record as a whole i think i you'll hear a little bit later this month and ask you first about the most significant comment at least as i read the br nice comment this doc document doesn't work here that strikes me as a fairly outrageous statement by someone who is acting on behalf of  the of the company when spoken to an employer employee yes sir let me i think we need to place that in context that really is what this case concerns is placing all of that in context if you take a look at the record first the record suggests that well first of all i mean what how could that statement be interpreted any other way than to say we don't follow the rules here you don't you know the union doesn't with respect to mr grody i mean i mean with respect to mister contrarious he said the company has its own policies all right so when you take these things in context it's really ambiguous as to what was  particularly to take a look at some of the other cases that have considered arguments like this which are you agree do you not that threats of futility are not permissible yes sir  so he says this document doesn't work here who pays your check the company or the union unite it seems to me that nothing could be more focused on as a statement of futility than than than those two things the law in the circuit instead of state in a futility must be must include a statement or implication by the company that it's going to do something to prevent collect the bargain and that's not with the state says and if you compare that statement in latest some of the other cases where an ambiguity has been found you know things such as don't do something stupid that might stop you from moving ahead the company is in family brothers is much clear yet that was presumed to be too ambiguous to be a violation of the law so here say something to the extent that that doesn't go here could mean a lot of different things if it was set at all but we also have to remember the context in which it was said your honor and this is the problem with this case the problem of these cases remember contrary as was a witness who testified in previous proceedings and the l j never recognized that contrary was a witness who when he testified about what happened at the may sixteenth statement all right said that he didn't remember what language the meeting was in he didn't remember what language the slides were in he claimed the slide said something specifically that was never said and he also said it won't point he wasn't even paying attention so when you consider the witnesses testimony as a whole as is required by universal camera in the case this circuit controllers is not the most reliable witness and when you consider that in light of what he said and you consider that in light of what mr groan he said and you consider that in light of what the cases require for both utility and specificity they have a violation of  the record as a whole the record as a whole establishes that these comments if they even occurred in the first instance do not rise to the level of violation of section eighty one and i think i can make a couple more points a bit more clear that the hope of course that when you take a look at the record as a whole there are a lot of things the l j did not consider let's remember this is a case where the board simply rubber clear that it was the union who was raising the whole issue of whether somebody could lose something in collective bargaining there was a presentation and it was designed specifically to address a union piece of literature wherein the union raise this issue and it was also demonstrated as undisputed in the record that this union piece of literature had been used in previous campaigns and that mr ickes one of the consultants knew that this was the organizers end up in trying to create these issues and then attribute them to either the company or one of its spokespeople and neither the l j nor the board address that issue and that's a key fact because what we have here is a  a lot of facts that test the credibility of of mr contrary and be established the whole background in which all of these other allegations occurred and again is the record as a whole that we need to consider when we're taking a look at whether any of these statements are made our job to determine credibility it's your honest it's not your job to determine credibility it is the role of this court to determine whether the credibility of the terminations are based on the record as a whole and that's what we're asking the court to do today so to say as as a general counsel going to make up obviously that this case is about credibility really puts the cart before the horse because what the a l j has done is exactly what the course says you can't do without chemicals you can't pick little pieces of the record and pick and choose and put together a piece of a mosaic you've got to use all the tiles and see what the picture presents and that's the distinction between this case and some of the other cases and i think it's important for the court to send a message to the board that you have to consider all the evidence and when he or ok i understand you're out of but but let me rephrase a different way that there's an opportunity here to to apply the law in a way that encourages the board to consider the evidence as a whole because it didn't do that in this case nor did the jay and that's the difference between this case and a lot of  you have to pick a look at the record as a whole you have to take a look at things like this all these complaints come in the context of the unions and though in five in manufacturing these kinds of issues the organizer was sitting in the courtroom when this testimony was presented ordinarily that would lead to an end to an inference that the farrier called the organizer would establish the fact the l g a didn't even draw an inference to even discuss this ok with respect to some of the other things the l j for example with with specter piece of literature at issue here they all j concluded that it was prominently posted throughout the plant based upon the testimony of the other third consultant but the third insult never testified to that the best the burton son said was conclusion that again is not based on substantial evidence on the record as a whole that is another problem we can move along we can see that  huge supporter and again the judge said that there was no evidence of that in the record however the record shows that within minutes before mr cd's was allegedly questioned by mr grown e mr c these had got up in the information meeting and spoken out favor the union against the company and he had a teamsters license plate on his car and it's a reasonable to assume that people who do those kinds of things will not demonstrate that they were for the union so you've got that factor how high up in the hierarchy is another factor that was not comments made by mr gurney either to mr c d s or mr contrary us third the atmosphere in which the conversations took place was against something that was not weighed by the l j or the board the cases take a look at whether or not for example of the course of atmosphere one on one of the boss's office where threats were made of those kinds of things here of course there was no such i'm steer here in this case the comments are made out in the open warehouse floor where everybody can see the comments relatively brief and again the comments are made to no union supporters and there's no doubt about that so to the extent that those factors w considered again what the judge did not do was consider the evidence as a whole so those are some of the problems that we have with those things with respect to futility again i would like to stress that the cases in this circuit require threat or implication that the employer will take action to render union support futile i mean even if you take a look  no threat that they would take any specific action to render the exercises section seven rights futile in fact if you take a look at what what about the follow up statement who pays your check the company or the union why can't that be read as as a threat because we're not in the there's no allegation that the statement is a coercive threat the allegation is a that it's an illegal interrogation and that b it has an element of futility to it and again there's nothing in mission  statement that says we won't bargain with you in fact in the presentation in the record it says we will bark so to that extent you know while while it may on its face suggest a couple of things is certainly doesn't suggest utility and it's it doesn't assume for example that mr groaning knew that mr a c v s and mr contrarians were both union supporters and that he knew that it was the m o of the union to try to set them up and that he knew that for example mr contrary  testified in a proceeding against the company and for the union before this so if you take those factors a loving take a look at it is simply a reasonable to assume that an experienced consultant like mission a groan he would pick the only two people who he knew would testify fact that mr c v s wasn't moving supporting the judge said he wasn't and that mr contrary this was confused about what happened in a regular basis and the judge never considered those things the other side of the complete testimony i think what we have here is we have a case notice reading of the board wants to lower the standard as to what is required by a notice reading that it should have articulated that it did not do so we also asked for certain testimony to be admitted by certain  ploys and again this would go to considering the record as a whole the judge concluded that these isolated statements had a chilling effect on the voting in however there were people in the voting unit who wanted to testify to the fact that one hundred eighty of two hundred thirty people in the unit had signed a petition and sent it to the union avenue nationally relations board as a union stop this nonsense and leave them alone so it's hard for the judge to come to a conclusion that this conduct somehow had a chilling effect on the unit as a whole and not allow the unions a whole to present the other side so we think that was first of all there is well thank you for your  company to violate the op not a for the client to buy those allegations it would have to overturn the judge's well supported credibility findings the judge found that the employer witnesses testified truthfully based on their demeanor consistency as in their testimony and the specificity of their testimony they testified that these particular statements did take place likewise the judge discredited the company witnesses based on some other reasons so findings opposing counsel has pointed to a number of things that he claims the a o jury did not consider or at least there's no indication in the decision that they were to consider those things how do we evaluate employee rights document was posted prominently the judge that is well supported by the record i believe the record site is page one seventy seven and she testifies that the document look familiar is something that was addressed by the yale jury my question referred to those things the opposing counsel said the made no mention of and therefore presumably or may not have act when he threatened that it would be futile for the seventies and contrarious to exercise their rights under the act when each of the employees showed and this employee rights document which clearly suppose i oughtn't to play rights under the  it either this document doesn't work in my brother or that this is useless the company has it's own policies of the opposing counsel claims that these statements are ambiguous our position is that they are quite clear and he also found that they were quite clear clear in this circuit with knowledge under brown and root that a threat of futility i'll also require is a threat that the employer will take some rep action to render union support  reminding the employee that the company pays his salary until it's his employment with contreras prior to the threat of futility negroni also threatened the employee that he hopes the company wouldn't hear him moving to that may sixteenth captive audience meaning consultant parties violated the opt in his extemporaneous statements before meeting where he said that the company could reduce its employees wages if they voted for the under section eight c of the act and employer can state its opinion as to unionization as long as it doesn't have a threat of reprisal or a promise of benefit the supreme court in the case looking is talked about the contours of section eight and an employer can make these types of comments as long as they refer to collective bargaining or to economic circumstances beyond their control the consultant here  remarks he doubled down when challenged and basically said the company controls the employment relationship so it can you know utterly reduce your wages in response to your union organizing drive for you  there for the company has the right to reduce your salary the employers council makes a big deal about how subsequent slide presentation reference has collective bargaining our position here is that l j examines that fact and rightfully so under the totality of the circumstances but nevertheless found that the earlier extent brainiest remarks violated the act and that the a similar company slideshow in a captive audience meaning this life so i mentioned collective bargaining but during the meeting employer made similar remarks similar threats of futility threats of reduced wages and threats of closing the plant down the board in that case noted that it was reasonable to assume that an employee might be more influenced by a course of statement than by a later non coercive statement in an effort turning to the notice reading company of the company claims that we are not in accordance with past precedent in ordering this notice reading first of all the board has broad discussion in ordering its remedial measures and in this case it did not abuse that discretion the board's concern here is not necessarily the severity of the violations but the fact that the recidivist during a twenty twelve organizing campaign the company committed very similar violations of the act and interrogated employees threatened them with loss of benefits it threatened them with futility and it threatened them time union organizer that it would look for a way to fire the l j and not case issued a notice traditional remedies notice posting nevertheless the company has continued to violate the act it flaunted the board's traditional remedy and continued to violate the act in a similar way as this court has no to read a requirement as is in effect a but moderate way to inform employees and more importantly reassure them that the company will respect their rights under the act this is necessary here this is the ongoing organizing jive the notice reading is necessary to return the boy to lab conditions so that they can exercise their right in a free and fair election so that the company or the board tonight is discretion in order in this remedy court has no further questions ask of the court and force the board's order slide show but they did not mention the slide show in the context of the organizer putting together a program of inserting issues and then trying to blame the company the only mention in this of the slide what makes this comment potentially illegal is only if it's made outside the context of collective bargaining and since the presentation subject was collective bargaining it's hard to argue that to say you could lose benefits in bargaining is a violation of the act because it's not and no one ever said that mr t said you would lose that you would lose benefits and that's the difference between this case  federally just it's because in federal logistics various managements said that that they would lose benefits that they would strike not that they could and that the comments were made outside the context of collective bargaining here it's crucial that these statements were made during a presentation about collective bargaining so there's no violation there us when i point out that this court mentioned the physique zero case that an analysis once again there was a reference to the fact that the presentation was a canned presentation it was not it was preparing school lucidly to address the tactic of the organizer luna in this case the company took the letter that luna presented to employees that mention the completely different employer put it up on the slide show and say we never said these things and in fact what we have is that all honest bargaining does not start from scratch you can get more the same or less as a result of collective bargaining so again these comments were made in the context of collect the barn and a board along a lot of this circuit comments and say you could lose wages and benefits things be going up down stay the same a member what happened i don't remember what the slides said i don't remember what language the meeting was in but i can tell you that they said that you could lose benefits if the union gets in what what do you do with ms johnston's comment at the end of her argument that but they are not as as egregious as described either in the briefs who are in oral argument and more to the point in the case cited by the board there was a host of a grievous unfair labor practices including terminations threats of plain clothes or strikes those are the kinds of things that warrant no history not a couple of eighty ones here in there are statements by individuals that don't impede in their case by me and i did your honor and i could go into great detail