paper and forestry rubber manufacturing energy allied industrial and service workers international union intervenor oral argument as follows fifteen minutes for the petitioner cross respondent eleven minutes for the respondent pro correctly concluded that there was not a material substantial significant change to the timekeeping system because the timekeeping system simply changed from a push button swipe a card to a touchscreen swipe a card there's from a mail handwritten system to a punch card system was not a material substantial and significant change so if that does not constitute a material substantial significant change the board offers no explanation as to why  going from a punch system to a touchscreen represents the change there and was there an argument by your friends on the other side that this did impact their time apply to her but did it change it and as it does it takes longer and is there and if it does take up to a day as there are several emergency process if you have to run to get your kids from school or something add your own  punching and that was some kind of an errant hit the start again about the time she got a completed it made her late so is there something about the system that required people a lot more time with their information that a lot of people have difficulty with th honor there's nothing in the record ok and in fact the record establishes that under the old system the unit time system if you made the wrong punch it would be in the new grease white and then under the new system if you made the wrong punch you'd hit home and then you'd resupply but there was no testimony about other people having difficulties or anything to that effect and to answer the question that us structure there are no i don't think that the fact that it took one day longer to potentially prove leverage was would rise to a level of material substantial significant to me especially if it's of three month vacation three months from now i know if they're raising this some snafu or if you need to leave early that this is some significant change there was no specific incident that was referenced or even the subject of an unfair labor practice allegation guess i'm not even sure why that's part of the time keeping system eat it simply automated instead of automated a bunch of stuff it did correct or are you and even if we get even if you get past the material substantial significant piece there's asked for a union representative in a meeting where he was not entitled to a representative he was told twice by age or the reason we're not giving you a union representative is because this is pre determined discipline where we're actually administering the discipline this is not a situation we're investigating where you would be entitled to a union representative he then left the meeting twice and then went out onto the the floor of the warehouse and at his desk refuse to come back to the conference room he was discharged for insubordination now the theory is that somehow he was engaged in some type of protected activity by reasonably believing that he was entitled to union representative in that meeting a couple points there number one if the rule is that the company has the right to administer discipline without a union rep present then how could you ever effectuate that if the employee can simply refuse to sit in the meeting it doesn't there's no way to square those those two concepts this is the nd point is that temporarily pointed out it was decided if he had been mistaken about his right to you know present in other words if he didn't write that he wasn't told why so he got out to his desk and sat down and refused to come back with that have been insubordinate of your honor he doesn't have a right not to attend meetings has a right to a union representative and if we if the company violated that right he would have other remedies that he could pursue through that or be but he doesn't ever a general right not to participate in a  is knowledge so the board in both cases the l j who sat through the trial and a credibility determinations determined that it did not have knowledge of union activity and let's start from the place of you can't retaliate against someone based on something you don't know about so one of the prime official elements of the right line kid bright line elements is knowledge of union activity now in both cases there's generalized testimony that there was union activity going out going on in a parking lot and that the individual who was terminated at some point was in that parking lot wall the union activity was going on not that they themselves were engaged in union activity and in fact with regard to mr wade the testimony is he was standing next to someone who was a known union supporter well standing next to someone who's a known union supporter doesn't mean that the employee themselves is a use porter but the board took a logical leap there and said well from the timing we think you're going to r from the timing you would never have to have actual knowledge of union activity which which is what you have to have in order to retaliate against someone for that activity that the argument that you thought it was her or knew it was her at the two correct or a five thousand and fifty right but because someone else had been engaged in union activity in that parking lot that's the argument or that's the jrue was that coleman likely and that's the word he used likely saw wade in his rearview mirror standing next to anita wells who was a known units order but that's the extent of the of the knowledge or the evidence of cause and you know as the l j pointed out i think a little bit sarcastically maybe he said you know i don't see how the timing or the inference of the board is trying to draw make coleman's vision any more acute point being either there or either he saw him or he didn't see him and either there's knowledge or there's not knowledge but this concept that we're going to infer from the timing is not correct errors on the remedies question the board to a spot to found enhanced remedies in this case and the issue with the remedies is that there is no standard that's articulated for when these enhanced remedies are warranted is one issue the standard that's articulated is when it serves the remedial purposes of the act well that's not a standard respectfully that's anytime the board decides that it wants to apply and has for a moment a case by case approach right and so it doesn't put the employer on notice of what could lead to those enhanced remedies is is the argument number one number two they're imposing enhanced remedies in a case where we won nine out of ten discharges a trial we won before the l j there were dissents by the chairman of the board of that  these are close calls in these cases and so to impose enhanced remedies in cases that are where liberal experts disagree respectfully is not comparable to the pacific hotel case where if you read it's quoted in german dissent in pacific hotel the the employer it said something to the effect of f the judge i'm not going to comply with  that's not the situation here we've complied with with any order that's been against oh it's all we've actually had over three hundred dollars on for labor practices allegations that have been filed against  of individuals did you get a stay on the matter to bring those people i can so actually your honor the board goes through a separate process called attend jail injunction process and so they went to district court and got injunctions and those people reinstated ok may please the court my name is david castro i am representing the national labor relations board in this case i'd like to start by addressing lauren keels discharge but before i get to that just want to quickly mention here we are not dealing with  case that before the board was soley a close case with a few discharges that were hotly contested there are sixteen alleged violations of the act here that are not being contested on appeal and that have been at this point conce so and that is adding of course to every single other violation that the board has found in six previous cases all of which have been all of those orders have been in force in full by the federal courts of appeals in six other cases point or making my point is that this is this is something that affected the board's entire view of the case is that that's the context the ones here some might think there were twenty violations that were in appeal there only a handful that were maybe the ones that were the hardest to sort of justify beach was the main authority relied on by the board keep in mind the board ordered less here than that was ordered in pacific beach the board didn't order litigation expenses or bargaining expenses or anything along those lines like it did in that case i mean would you concede that this is a this is the most extreme evan you've ever seen pacific beach or this case well which one's more extreme are those the two most the most extreme is that the beach is the most extreme to that they say you know should have been nd in other words there is no other case between this one and pacific beach that we can point to and say ok there's something that's worse than osbourne has say it's not as bad as i've seen as there's no other case where the are such a penalty has been imposed this exact penalty no but again they took pacific beach in less in the room than remedies that were applied then and that seems appropriate for this case i mean we're talking about there hasn't been any single facility that the board has found this many unfair labor practices that in the past decade the board hasn't applied these in other cases because these are really remedies that the board applies reserves for serious cases in and found this was an extremely serious case of repeated misconduct moving on to discharge i just want to make one point about that which is that the board's analysis when it comes to section eighty five d about just the nd part i think the court fully understands that the issue with the st part is whether the only dispute there seems to be whether the leave requests count and what that would matter and i think the court has a good handle on that but i do  well the they made two points about whether about the leave requests one that it wasn't material and substantial because no employees had any problem with the twenty four hour notice and then another that it doesn't count for kills discharge i guess i'll just address both briefly st in our view and in the board's view this was a material in substantial change because it substituted an employee personally knowing at the moment when they talk to a supervisor when they we don't we don't know that that is true in every case there is no rule saying the employer must go back but that was generally at this point the system had been up for three weeks and that was generally what employees were requests for like i need to take something some time off three months from now are all leave requests sick leave any kind of leave had to be put in through the requests so anything you know i need to take time off tomorrow i need to leave early today all of those would be going in through the current system whereas before they would all be submitted  i mean there was testimony of i believe one employee that they submitted a leave request and didn't get a response back and had to come in the next day without getting a response back when they planned to be out out the next day so there  is so that's it that is the situation yes and moving on to the connection to kiehl's discharge the board looks at this in two different ways the question for the board is not whether her discharge can be attributed to any particular aspect of the changes made to kronos the question is whether the kronos changes material and substantial and if so was her discharge because of that and her contested testimony is in the record and she said that you know when i clocked in i swiped my card i hit the wrong button i hit the correct button to return and it gave me a it froze for a couple seconds while it was loading which only happens with the top touch screen and then i was two seconds late when i ended up clocking in that was her testimony and the record and so that pretty clearly attributes it to kronos and under the of substantial evidence standard time clock the time clock could malfunction too it could just not press or something but just as a broader rule i mean i'm truly struggling with this idea that every time a company wants to enhance some aspect of its operations which in our society now happens all the time that they have to negotiate over every one of those and this is very common technology if  that a company makes as you bargain over your honor it's not any technological change i mean board doesn't say that any change for instance if they change here or just been to a touch screen without any additional functions like kronos at the board doesn't reach whether that would have been material and substantial so it's not any technological change and also keep in mind that this is only in st contract bargaining is this ever an issue generally employers and unions will bargain do an accommodation and have a management rights clause that addresses exactly particularly in changing organizations that change technology frequently that addresses the exact situations under which those would be bargain and she hits the wrong button a push button on the touch screen and in the time that it takes her to push the right button the time call it clicks from eight hundred and fifty nine to nine o'clock or nine o'clock to nine hundred and one she's just as late as she is on the on the touchscreen why it is her problem attributable to the touch screen well your honor she testified that it wasn't that it flipped over right after she swept her cards that she pressed the button to return the home button to return to the home screen and while that screen was loaded with one loading was when the time clock flipped over whereas with the physical time  honor and the testimony here is that she would have been her testimony was she would have been fast enough on the beep if it had been the physical clock i'm going to move on to the french discharge briefly i just want to clarify one point with that i see i'm running close to out of time and that's for the knowledge here this is a situation where two employees from a different warehouse that's in the same complex plot complex in the same memphis area warehouse system  were in a parking lot they don't use as employees we know that at least two suits and they were handling for the union and yet french was also in their hand building with them she was a she was not somebody who was just briefly talking to them she was soliciting other employees to sign cards she was wearing she testified at the time union paraphernalia when she was doing it she had a union button we know that at least two supervisors came by and called their manager margaret barnard to report during that time that there were two union people in the lot that they didn't recognize the listing cards we don't know anything about whether you know neither of those supervisors testified so they and bonder didn't say she asked them whether they also saw french or anything like that we don't know that so we also know that french had left when a different person to the judge found not to be a supervisor came and asked the two employees to leave under those circumstances the board reasonably true the inference that this is somebody using a shared lot openly engaging in union activity that several supervisors and more than one observed people doing in that lot at the time she was doing it was the stated reason for her discharge the stated reason that it was that she was a minute late coming back from lunch your honor but kiel wasn't discharged for being  is it appears that from all the examples the board had they didn't apply that that standard to every employee who reached they didn't discharge people who were minutely  they did sometimes in these two cases but these are the only two cases in the record where they discharge somebody who accrued only thirteen points the other all of the other situations the board looked at employees had accrued far more points than  i please the card catherine on behalf of the interviewer united steelworkers i wanted to just briefly address shawn wade's terminations mr wade was terminated for stealing time when he briefly left the building to move his car prior to wade's discharge the company had routinely tolerated such actions and the board recently found the fact that he had treated other employees leaving the building for a short time as at most a minor offense but discharged wade for a st offense indicated that his union activity was a reason for his just charge the board reasonably rely on testimony from several employees that showed that osbourne has at most assessed an attendance point for such activity d employees testified that they almost uniformly before wade's discharge regularly left the building without consequence sometimes and full view of their supervisors they were queried about it i'm sorry if they were queried about it did they lie i don't know that there's any evidence that employees lied about started she left the building and returned eight minutes later her supervisor did observe that and she was assessed in attendance points but she was not  assuming that the company didn't didn't limit the number of such comfort breaks they could take during the day did they have to clock in or do they have to make some kind of notation of how much time that that because you know when you talk about the stealing time that's a pretty serious allegation i don't believe so there was not any evidence in the record that describes other it's just when they were out of the building  and there was evidence that employees would leave her all of their windows and that that was effectuated without clocking in or out and that it was generally tolerated i see that my time is is very short and i just want because of their support for the union this complaint is relevant in response to the company's argument that conduct since it committed the unfair labor practices at issue in this proceedings should excuse it from compliance with the board's ordered other than the pacific beach hotel and that the order is there for the most serious order other than pacific beach what is the point of this public reading or the managers have to be there when they read these matters stand posting it so people can see that i don't stand posting for three years but are supposed to but what is the point of this public shaming almost reading of of the violation with the managers and their the board  states that it's to ensure that all of the managers and supervisors know their obligations under the act especially given their repeated violations including the same violations including termination of literature from the flame break rooms and the there as tendency at the public reading is to ensure that they do not continue to make the  last question just on all this was a situation where there was a contested outcome of the election that was litigated out and since then once it was what to get it out we recognize the union were bargaining with the union  there was mention of a consolidated complaint that's been issued by that already i haven't seen that i'm not surprised they filed in for labor practice charges i'm aware of that but allegations shouldn't be taken to into account in deciding what the proper remedy is in this case in terms of not french it was mentioned that there were two employees from other facilities that had come on to the parking lot at her facility she worked at that facility so her being in the parking lot would not be out of the ordinary but the other employees coming on to the parking lot for organizing purposes would be notable for being in that parking lot would not be no d with respect to what weighed the weight is probably a close call so on wade there were questions about disparate treatment i don't think you get to disparate treatment until you get to knowledge knowledge comes before district treatment in the order of analysis because again you can't retaliate based on something you don't know about but when you look at disparate treatment little known to be a union supporter sympathizer pro union japon if they didn't know that he had signed the card right exactly and so there's no evidence on the record about the other people who left the decision about what to do with them when that happened was made by the same person that made the decision about shawn wade so that's another point to l j made in his decision i see my time as a thank you honors we ask that you are petition for review thank you thank you for your argument the matter is submitted and we will give an opinion in due course