labor relations board decision in order in which it found that first off the company improperly or of lawfully suspended its employee richard sachs didn't violation of the act two thousand and fourteen july and then secondly that the company and related to separate incidents terminated mr saxton in september of two thousand and fourteen i'm going to start with the termination incidents first because of the more substantive and as a plumber a man i want to just briefly touch on the background fa mr saxon was a c d l driver for the company on september twenty ninth two thousand and fourteen he returned from running his route his supervisor alice brown approached him and said richard i need to run a truck over  and screaming through the attention of other people one of those people was the vice president of operations j j thompson mr thompson approach trying to find out what's going on and try to calm the situation couldn't do so mr sachs was yelling agitated finally told mr saxon to go punch out mr saxon as he was walking away from the gathering to yell scream swear engage in really outrageous behavior after finally moved away mr disagreement the disagreement was was there during the driver available supervisor said there's no one else available saxon said you know have someone else do it there was a disagreement a collective bargaining agreement if there's a disagreement carry out the orders of the employer  to the union between this agreement and violate it but aren't you arguing this a little bit in a factual bubble because there was so much history in this case so you know starting with well first of all the fact that he was the the union stewar union representative whatever the term is and then the fact that they had this dispute over the validity of his license that they terminated him allegedly for not having had an or having an expired license allegedly then they reinstated him i mean there's a long history here it didn't this didn't just happen on september twenty ninth where there was a dispute over driving this is an ongoing problem and the fact that these events took place in late september right before he was supposed to have a hearing wasn't he on a grievance hearing on some actions that he had filed regarding his rights under contract so we're talking about a big basket of evidence and it seems to me that you're trying to kind of cherry pick just just one part of it so if you could address al and i was proceeding to that i wanted to respond to the question so number one that was a first issue with respect to the company negotiated language would say in the event of a disagreement this is what you're supposed to do mr sacks it didn't follow that but it's not protected activity i think we saw that on the break we can debate whether he lost the protection of the act screaming and yelling and so on and so forth and then even after those incidents transpired mr thompson went back to his office he received a call from tommy   he says to mr thompson you know j j heard what happen i'm sorry on behalf of richard the company the unit had a good relationship can't we work this out and j j says hold on a second we can work whatever out mr saxon comes to work runs his route is asked to come see management to kind of talk about what had happened to work through those issues refuses to go says i don't have to do it mr saxon never thought he was fired he refused to go he refused to go speak with management because according to him in have to i don't want to i'm not talking to him and he walks out well he had a grievance pending that was do pre hearing what five days later involving his july terminations pension and so and that's it's back to my point about the history of this case everything didn't happen right then there were other things that issue recording the whe ther he was being fired or his protected activity and isn't that the issue here here is that the protected activity is filing the grievance which was still being considered and was five days away from hearing was that the elephant in the room the cost just terminations or was it the fact that he was insubordinate on september thirtieth isn't that what the a l j was required to turn your out of the national labor relations board found that mr sacks was terminated on the twenty ninth right well but he was told by everyone in the all we have is the record in evidence in the record in the evidence is that he was told by everyone he wasn't fired well known that he was also told not to come back they were saying he was turned out afterwards he was told not that he wasn't fired and he was also the clear clear board president is two things i want to make sure i get in is number one to us there's no basis to include he was fired on the twenty ninth he was told by everyone he wasn't fired he didn't believe next day then under clear board even if he had a reasonable belief he was fired at that time under clear board case law which we've cited in our present employer can just about that representation which is exactly what the company did by telling everyone including the union president you're not fired he comes back to work finally if there was any doubt if there was any doubt what his status was the company said come talk to us on the thirty feet but you've been told he was fired again clear board case law and basic common sense says if you have any doubt whether you've been fired go talk to management find out you have to clear it up that's what the clip board his lawyer says he can do that how can the company be stuck with the burden of having him fired on the twenty ninth when everybody told me wasn't fired  fired because your honor the company specifically told him the president you know business agent you're not fired and he came back to work the next day where did he say where is that in the record you say you're not fired he talked to tommy rot left it's undisputed that the company spoke with i mean rou union president directly and he he was told that he should return to the work he didn't say you're not fired mr sacks and spoke to suttles and ratliff later that same day and testified he was told it was ok everything's ok i talked to where the rubber meets the road here where the rubber meets the road is the board and i'm going it's my that's the time of the where the rubber meets the road is that the board did not even consider the reasons why he was fired on the thirtieth the boricuas i'm asking you is that what yeah is that what makes the difference express there was no intention to terminate mr saxon on the twenty ninth there was no intention to terminate mr saxena no the company wanted to talk to its employee to try to get an understanding of you know how we're going to work through this and the employee is not speculation there's just misperception that you know he was actually terminated by this stuff there that's not really but they just made it official the next day when you're out and then that's cutting out all aspects of what determinations in the documentary evidence in its grief and again arguments this morning the company is simply either ignored the credit testimony or the documentary evidence the new spec to his discharge discharge number twenty the company appears to concede that he had the right into the contract he worked overtime and it was only a question of whether other employees were available that simply after a matter that comes down to the dot the credit s the money that his other ning of that very specific contract well but you know the the the company says that well ok they had a tiff on the twenty nine then sending said don't come back but then they straightened that out then he came in and was insubordinate the next day and then they lowered the boom morning so what do you what's the effect of the not return and saxon is never directly told by the company that he's not fired and to the extent that the company and the board very reasonably inferred is three days later is given a destroyed letter that relies in part on the incident of september twenty ninth we need to work overtime to the extent that the company is now trying to buttresses contention about what have been the next day when he declines to meet with management without union representation is putting  attack alleged conduct on september thirtieth that's also referenced in the discharge letter would have independently testified is discharged and this morning company counsel was asked that question is a company trying to rely on the events of the thirtieth you show an independent company counsel didn't really answer the question and the reason that question is not really answer is because very simply before the board the company never made that argument and in its reply read very telling rked out and that's why he did return to work but just a couple days later mr saxton received a letter that discharged him based pacifically on the events were based partly on the events of number twenty nine so in that circumstance or very reasonably infer that this was simply a temporary reprieve an opportunity for the company to simply get its paperwork in order put a formal discharge letter together and that's what he received just a couple days later after the incident and so very simply the events of september thirtieth have absolutely no bearing on this case the a ministry of water judge has found a completely separate violation mr saxton receiving the discharge letter on october first the board did not pass on that finding that it didn't need to understand we didn't need to because they found that fact and was discharged based on the company's actions on september twenty ninth it didn't need to find where there was an additional violation october first but that is absolutely new bearing on again on anything by the company to now try to assert that the event good morning your honor john mooney on behalf of drivers well six thirty nine i will try to be brief i think a lot of the points have been covered but i think it's important for the court to understand that this focus on this fall  fourteen is but one tile in an overall mosaic that's pretty you need to view this case starting from back six eight months before those events so you're saying when mr saxton car the company vehicle and the company had him her costs and then they had this big deal about whether the license was expired or law it's a continuum of conduct that needs to be put in to when you view what happened in the did and the record is clear on that but i don't think we need to do that this morning he says that to another employee simultaneously with the action they fired me again so what's in his mind i am fired  company ever communicate to him any disavowal of that know the discharge letter that they give to him doesn't say we're relying on something that happened after it a lead paragraph that discharge letter says you did something on september twenty union perspective we're going to try to do something about it but they said just just go back make but that judge when was asked me what why the union was taking that position this they're going to try to get him wiffle balls the man had been repeatedly disciplined repeatedly this discharged for reasons that are specious and i invite you even before this court deal with the work but even this before this court they say at least thirty times in their papers that mr saxton lied about getting his license and look at the papers and the and the documentary evidence is that they had on july second proof from the motor ministration that he renewed it in june and he got a duplicate on july one back they had that in their hands and they continued to say these things to the union to others you're say the sport you're saying they did seem to insist that the evidence was seen big in big us so there's clearly was a lot of ill feeling here it's not just what happened on on september twenty ninth and thirtieth so how does that play into the mix or your honor regarding the license issue mr protected activity so how does that play into the analysis if at all and on what happened september twenty ninth and thirtieth just answer that question i don't believe it does your honor though it's irrelevant there's a twenty year history relevant you now assess of what happened on september twenty ninth and thirtieth i believe it's not relevant to whether is terminated on september twenty ninth because all the evidence in the record shows that he was not terminated on the twenty ninth the respect of the the animists the ongoing termination notice that there were facts that were made up that said he'd already been terminated on the twenty ninth even though he was told he wasn't there was undisputed evidence in the record for mr thompson which no one contested that said i said to tommy i don't know what you're articles that you're arguing one but one part that that favors your position how do we know what the whole contract says and terms of how it might bear on this issue it seems to me you're right you're kind of floating a new legal theory here that position was language in article eight is clear the board found will no article eight really just is no strike language yet but i do how do we know there's not something else in the contract they're saying that we've got to report contract now and determine you know if there's something else that gives the employee the right if he has for example protected activity ongoing that he can take other actions and decline ending the productive we don't know there's another contract provisions you're saying we do all that no no your honor it's been thoroughly briefed by both sides our position on article eight and then the board's position that and the algaes physician regarding article twelve which is another spot a section of the contract that deals with no strik court was rejecting your argument as to the contract right when we had a right because the board found as a matter of fact that other drivers were available so it seems to me that your reliance on that one legal principle is now out the window because the board made a credibility determination there were other drivers available so now it seems to me you're just asking us to read the whole contract and to say what i'm not sure i guess or if i may respond to that first off the only two individuals involved in this incident alter creation were mr brown and mr saxton right that they made the credibility determination there were other drivers available so that contract provision doesn't carry the day for you i guess your honor of whether the al j i found that mr brown was credible witness mr brown testified that his perception there were there were mr sacks was yelling one available so there was obviously a disagreement even if the board found h we think there's other drivers available they didn't just credit mr brown and that his perception richard was the only one available ok ok thank you thank you very much your honor it will come down in great counsel and then we'll call the next