attend a work meeting during work hours while being paid and subject to a promise that he would suffer no adverse action that was the terminations for cause in this case we know exactly what was said between and mr grecian because mr grecian made a sort of recording of his interactions with his managers on october eighth two thousand and thirteen that recording provides irrefutable evidence that mr superiors tried their best to convince him to attend the meeting and keep his job importantly that recording shows the following interaction between mr grecian and visit manager of employee relations mr grecian quote right ok i guess so it's terminations if i don't go to the meeting correct and it's non terminations if i do go to the meeting right mr vaughan quote yeah you're not going to get terminated upstairs mr vaughan quote but i'm telling you now and i don't want to delay it any more but if you absolutely refuse to go upstairs there's nothing here that  unsafe or discriminatory or harassment in this meeting because we're paying you because you're not going to lose you're not going to lose incentive you're going to get down time away good stuff we're not going we're not doing anything negative to you if you don't do it that's considered insubordination finally after repeated attempts to get mr grecian to attend the meeting and three refusals by mr grecian to attend the meeting he confirmed that he would not attend mr vaughan quote so what's your choice now mr grecian quote yeah my choice is not to go to the meeting that w excuse me i read him in understanding that the meeting was organized for mr christian's benefit to explain to him how the production standards were working yes the meeting why does it make sense to discharge someone for not attending a meeting that was organized for their for that person's benefit it was insubordination for him to refuse to attend the meeting the meeting was triggered by mr  accusations that morning that the company was changing its production standards on a daily basis to cheat employees out of incentive pay that was mr grecians position and he stated that he was telling everybody who would listen that that was the case it's undisputed that that is false these production standards are developed based on time studies that take months to develop and they're posted on the employee both on boards in response to mr grecian statement as to his belief that the company was a wage cheat and the company was changing the production standards on a daily basis on busy days to cheat employees the company said we're going to direct you to attend a meeting at which the industrial engineer will attend and they'll explain how it takes months to prepare these standards but if that was the help me understand the record better that's why we're here if that was the employer's interest in making sure that there were the information was mis corrected and the employees were not given false information that they were being cheated wouldn't there be some action after his discharge to make sure that that information had not disseminated  employees were had not been provided with incorrect information no your honor mr grecian had had many meetings in the past in which he had complained about production standards and he had met with zeroes and they had explained production standards to him including earlier in two thousand and thirteen and he had suffered no adverse action from attending those meetings and this was simply going to be another one of those meetings grecian who was under making these false statements it was not the rest of the workforce it did not call for bazoo those to be required to conduct a company wide training program it was mr warning why isn't there substantial evidence to support that thank you your honor there is no substantial evidence that he was terminated on october eighth because of anything that happened on october first  grecian from not november eleventh two thousand and ten to september seventeenth two thousand and thirteen all before the start of union organizing have been disciplined by visitors sixteen times he had received nine verbal warnings he had received four written warnings he had received three one day suspensions none of those disciplinary actions resulted in mr grecians terminations and neither did the verbal warning he received on october first he received a verbal warning the very lowest level of discipline you can receive if they were going to terminate him they would have suspended impending terminations he wasn't terminated on october second third fourth fifth or sixth or seventh it was over he got a verbal warning and it was done there were significant intervening events that resulted in his terminations specific first intervention and the october eighth concerned production standards i mean this is only seven days later and it's a bad interactions were about the same issue they were your honor they were respectfully about completely different issues i'm not tobar first there was a meeting held because employees were complaining about mr grecians scary and erratic behavior he was an employee who was ranting who was agitated who  prior to the meeting having gates in an altercation with a supervisor when he asked for some time off and the supervisor told him they didn't have any time off to take and told the supervisor i don't like you and i don't like the way you do business employees were complaining to me mr clark that mr grecian was becoming increasingly erratic and scary and so they called him into a meeting and they told him we have an obligation to maintain a safe workplace and you're behaving in a way it's inappropriate and he said when people tell me that i'm doing something wrong it makes me feel like i'm being forced to the ground and i want to get up and do the same thing to the person that's doing it to me they ha legitimate reason for calling him in to talk to him now during that meeting they said going forward we would like you to address issues with management and we don't want you making statements like it i'm working twenty hours a day or i need three legs to do my job that statement by management was an unfair labor practice because it had the effect of discouraging him from speaking to coworkers about union about concerted potentially concerted activities and we admit that that statement should not have been made but there was no concerted activity by mr grecian on october first and the issue was that mr grecian was spoken to on october first was complaining or griping about being too busy that is entirely distinct from what happened on october eighth when mr approached management and said you are wage cheat you are cheating employees out of money by changing the production standards on a daily basis those are night and day those are not the same  any event they didn't terminate him for accusing them of being waged cheat they could have they could have said if that upset them so much they could have said you're fired and then that would have been the reason for his terminations but they didn't they said we're going to have you go to a meeting with our industrial engineers they're going to show you that it takes months to develop these standards and that we can't possibly change them on a daily basis to cheat people out of incentive pay the posted on the bolton board we're not cheating employees so you need to attend a meeting and they tried to ask one question i know is tight your time is expired one question in your briefing use you seem to imply that  carty that he had a duty to present the photographs of this altered time records to pursue those rather than presenting that evidence to the n l r b is that your your argument that this was it was unfair process somehow for him to not show that the his time records have been altered and shut the photographs to no thank you your honor it is not our position is that in the past mr mccarty when you raise wages we had had his records corrected and in the prior year eleven employees had been terminated for the same production deficiency that he was terminated for our position is that had he come forward with the information he would not have been terminated based on the substantial evidence of record and when he did come forward it was immediately investigated and he was offered reinstatement with full back pay and without having to waive any claim to my right and still that he is terminated for being at ninety four percent for one week rather than ninety five percent of the standard and he was like a long term employee is that correct that's correct these was a long term employee who was now receiving his fourth production warning and  as percent s and other employees with with ninety four percent on a particular warning are also terminated is a consistent pattern eleven employees were terminated for the very same thing prior to the start of union organizing there are very strict about it you get four warnings and then you're terminated morning your honor david sidehill labor board at the outset the company filed no exceptions before the board that employee gretchen was unlawfully warned on october first not to discuss production standard with other employees this court has no jurisdiction to consider any challenge to that and for the company to now claim before this court that somehow gretchen had been acting inappropriately or making inappropriate comments the board soundly rejected that claim and again it's simply not before this court substantial evidence also supports the board's finding that the purported reason for the october eighth meeting to discuss production standards and mr gretchen doesn't withstand scrutiny that it was a pretext and there are two primary points for why the board made that finding first the board reason we found at this meeting was simply not structured in a way that a typical meeting would be designed to discuss production standards the person from industrial standards that was told to attend the meeting jaimie already get extensive testimony set forth in the board's decision and it page forty one of the board's brief that he didn't know why he was asked to be there he tried to ask for clarification was never given clarification and it the whole thing was just really confusing and a nuisance to him and i would also point out that the companies prefer to this court have never to be a fairly unusual meeting and you can correct me if i'm misunderstanding the record but  it would not be usual to have an employee say i'm there's cheating going on here and employees are being cheated an industrial engineer would be called on to explain the situation so i'm not sure what the he may have said  meeting was unusual but what would be the usual or the natural your honor the usual point would be that the industrial engineer would have been told the purpose for the meeting to prepare any notes or information that he would need to address the concerns being raised here the company never provided the industrial engineer that information despite the specifically asking what do you need me for this meeting why am i being asked to attend this meeting and as stated in the board's decision in the board's brief that engineer gave extensive testimony that the whole thing was just filing in diffusing to him and i would stress that even though that's a central underpinning of the board's decision for why this meeting was a pretext and why didn't we stand scrutiny the company's briefs never ever addressed that point and now for the first time the second point that the board relied on was that if the company really had such concerns that mr gretchen was providing incorrect information to fellow employees that it would have taken some steps to address those concerns that argument this morning it's the first time that the company's ever made any attempt to answer that the board's decision its priest or simply absent with respect to any attempt to address again a very key central underpinning of the board's decision as to or the board's finding as to why the october eighth meeting or the purpose of the purported october eighth meeting simply doesn't withstand scrutiny how long it has to gretchen been working at the  tried to challenge gretchen's overall work record that is simply not something that the company made any attempt to rely on before the border and it's reefs of this court again it's something that's trying to be worked in the record where the board is a work record i believe it would have been i can particularly state having not reviewed that information before this argument how should we understand the apparently undisputed fact that gretchen was exposed explicitly warned that he would be terminated if you didn't attend you have to operate meeting and was reassured several times that he would nothing bad would happen if he did your honor he was told that he would not be discharged he was never told that he wouldn't be disappointed and the of the statement that saying that nothing bad would happen to you within the context of the company telling him and i believe this is a page six hundred forty seven of the appendix was in context of mitra gretchen being told that he would be paid for attending the meeting and that he wouldn't lose any downtime for attending the meetings that were in effect his productivity statistics but he was never actually told that he would not anyway if he's disappointed again i can't overemphasize that this meeting is coming in context of an october one admitted unlawful warning where he is told not to discuss production standards with his fellow employees or face further discipline and at that meeting he was actually encouraged to simply resign from the company so now a week later after raising some additional concerns and again telling the company that he's continuing to tell fellow employees what he feels or improper manner that the company's handling its production standards he's being called into another honor before this court the company doesn't dispute that at the very time it notified employees that it knew the union effort and at the should not support a union it immediately grants a wage increase of between fifty cents to two dollars an hour to employees that can have a pretty immediate effect and how employees are going to view this incessant union campaign that's just that's just beginning there are a total of i believe seven for labor practices that includes the discharge mccarty who is a prime supporter interrogation of mccarthy just as the union campaign is starting and of course the discharge and an earlier warning given to mr gretchen so in context here there is the board did not abuse its discretion by requiring a notice reading and i would also point out that this court in some earlier cases had expressed concern when a board order did not give the option to have the company or the employer have the board agent read the notice in the state of the said or somebody from the employer and hear those concerns are not at issue because the board's order does give the option to either having vice president clarke read the notice or having an agent from the board even notice still the standard i think is so numerous are so numerous pervasive and outrageous that such remedies are necessary to dissipate fully the course of effects of the lp these what would you point to is the most outrageous action your honor immediately increasing wages when employees are told by the company we know it's going on we don't want you support there the union there's no reason to support the union and by the way here's a wage increase that conic cuts the union effort off it at its head so to speak it's a very significant for a labor practice and i would any other cases in which that's been a basis for a verbal warning or verbal notice and sure your honor there's two cases that were cited in the board's brief are particularly appropriate your one is a case mcallister telling that this court enforced but i don't believe this court actually addressed the notice posting in that issue in that case and that was a situation where an employer accelerated a wage increase added some additional holidays and the board hadn't posed a notice reading in that case and there's also were discharged mr gretchen very early on in the campaign mr mccarty a little bit later and i know that the company has seemed to suggest that the union effort dissipated over time minutes again not surprising that it that it did dissipate given some of the immediate actions taken by the employer but having said that the evidence does indicate that the union was continuing all the way until june or the following year trying to organize but simply not having a lot of success and in fact to my recollection within the first week of the union campaign before any of the on for labor practices started the union about eighty four employees had actually signed union cards and after that wage increase it dissipated very very quickly downtime is not being properly recorded he was assured don't worry everything will be ok but nevertheless it suspended and discharged him and i know your time has expired but i'll ask a question and you get to answer it what could you also just briefly address the substantial evidence supporting the determination that when mccarty was questioned by clarke that constituted an interrogation yes your honor three factors first vice president clarke was a high ranking company official he initiated the conversation with mccarty on that point thank you interrupt is there anything in the record to show i mean i was struck by the difference in positions between clarke and mccarthy is there anything in the record show whether they had had prior conversations whether they spoke regularly or whether this was extraordinary your honor there's no indication of this book regularly and this was a chance encounter that occurred in this is that the essentially the very first thing that came out of vice president hark was what's going on with this union stuff it was not part of a more general conversation or a broader or a broader interaction of that project in this particular situation were there any other such questions no any other questions about the you know in this particular interaction and in general no and in this particular situation no it was just a very direct question to mr mccarty what's going on with this union stuff and  sentially came out of nowhere so to  speak thank you your honor the board would simply ask that the court enforce the board's  thank you first with respect to the industrial engineers to industrial engineers were to attend the meeting with mr grecian the other was mr heatley who had prepared extracts of mr work records production records to bring to the meeting so they were prepared mr he knew exactly what the meeting was about second mr grecian was specifically told that he would not suffer any adverse action at all he was told quote we are not doing anything negative to you at the meeting we're not doing anything at all with respect to the  any individual as an employee who has been suspended or discharge or the payment to him of any back pay if such individuals suspended or discharge for cause so even if you found in the legislative history makes clear that where an employer's term me for cause they cannot be reinstated him back pay cannot be ordered even if the wrongful conduct resulting in the terminations involved an unfair labor practice and that's very clear from the  those surveillance cameras captured illegal drug activity the employees were fired for the illegal drug activity which would never have been discovered but for the unfair labor practice in installing those surveillance cameras the board they're held they were terminated for cause and even though it's related to this unfair labor practice the statute prohibits an order of reinstatement and back pay and terre corp is the same way mr grecian was not terminated directly for an unfair labor practice even if you found that somehow a warning a week earlier october first somehow led or contributed to his eventual term a nation he was terminated for cause and therefore he cannot be ordered reinstated in backpay under the statute the interrogation  mccarty clearly does not violate federal law it was one comment to mr mccarthy there was no follow up comment records show about the relationship between the record shows your honor that they had a very good relationship interacted i believe they said they would interact as they saw each other on the floor but that they had a good relationship according to mr mccarthy the case relied upon for notice reading by the government is federated logistics in that case the president of the company held mandatory meetings and threatened every employee in the company that if they voted for a union he would move the company to hong kong he had every one of his managers go and threaten every employee he told them were taking away your christmas bonuses we're taking away your christmas leave both for you get everyone in this place is going to get fired that's not the facts in the bazoo those case notice reading is a humiliation here it's an attempt to humiliate mr clarke and it's being ordered on top of posting the notice for sixty days for everyone to see it is an outrage there print verging this rule of notice reading into a rule that's going to apply in every case was there were findings here if supported by there it does not meet the standard of numerous pervasive and outrageous behavior because if you look at mccarty as soon as the company received the evidence that his records had been falsified they immediately ordered reinstatement with back pay that's not the act of an outrageous act that's an act of someone showing good faith with mr grecian he was terminated only after extensive efforts to try to convince him to keep his job that's not outrageous behavior they tried over and over again they said please just go to the meeting nothing is going to happen to you just go to the meeting you keep your job go and learn and then you'll know that we can't change the standards on a daily basis and cheat employees please that's not outrageous behavior thank you thank you