that the charging party was guilty is a stablished in uncontroverted of all these violent acts the board found number one that the union rightfully caused powells discharge reporting the threat and by the union steward fair clock submitting a statement about the threat because the union has a duty to all employees in the bargaining unit and a duty to protect the other employees from the violent conduct of mr powell the board also found that the union did not reach its duty of fair representation and properly declined to arbitrate the grievance instead of negotiating an eminently reasonable settlement which took into account both ms palos interests and the interests of the bargain unit by making the settlement on an anger management class and i need a last chance agreement that there will be no more violence for the next ninety days then the board did an about face which is puzzling finding that the union breached its studio fair representation based on three findings considered cumulatively one that the fair statement was partially untrue the grievance had a step one grievance meeting and three that paul remain unaware very close statement during the proceeding the pendency of agreements these three items the board explicitly said were taken were considered cumulatively and considered together so that each one is a necessary predicate if any one of those is knocked out the board's conclusion what do you think the week is li that that the state was partially not true that the a l j and the board found that their cloth truthfully reported what happened but was not present in the room and they the yale j relied and credit the testimony of nate hudson who sad that fair cloth was not present while he was in the room and also that while he was in the room he did not hear powell or tanner the victim of the threat say anything to each other yet the fact that the statement was made this vile bulger threat which i will not repeat in the courtroom but is in the brief was sitting somewhere out sat or i eventually he went outside he was there then he left as he's leaving fair cloth and there's the room he sees that and then he sees a commotion inside and then he sees powell come not being a reasonable inference from the evidence is not substantial evidence in the deference due to the board does not include does not permit the board more relevant evidence that detracts from its findings nor does it permit the board to misconstrue or fail to consider important evidence that's what the board did here and that's why it's findings are not supported by substantial evidence or not  that you're right on this point what what are you going to address i hope you are sort of the parameters of what you understand the union's exercise the d d of fair representation to and in a situation like this where yes plainly the tell the truth it would say to her employer about what happened and just talk a little bit about the parameters of that kind of difficult situation that's one of the board's decision here it's almost like a dr jekyll and i've been involved in other cases like this and usually what happens when there's violence at work the union reps nobody saw anything they did disappear they're not around because they don't want to be snitches but in this case that's not what happened in the union does have a duty or at least it's not a breach of its duty to report violence and that that's established i don't think anybody questions that the board didn't even question th not without more evidence than there is in this case there's no if if the if if she didn't do it intentional map she did it out of to intentionally mislead or unintentional malice or she did it evidence to why we didn't tell her but it seems like the board sort of thought well you know there ought to be some duty of disclosure similar to what a judge would have if a judge had personal knowledge from an external source a benteke case that came before that is that is that a fair reading do you think i think you're suggesting that there's not really any law to support that and they don't cite in the all the cases where i' did commit these acts of violence she was guilty she knew she was guilty and we have to conclude that she knew she was guilty and we have to conclude that she was lying about the fact that she committed these ac lied to employer she lied to the to the union is that matter what area of representation and there's a question about when the union actually under took representation of the grievance well that that's the second link that there was a that the board found a particularly significant that fair clause represented  person and that was done that was routine and she did what she always does was to write a grievance asking for reinstatement claiming unjust terminations and handing it to the management person the record is  never a meeting at step one there's never any discussion or even to i'm not present the greven is not present when there's a discharge and it always goes to step two and that fair cop was gone after she did  fair clause there's not anything any evidence that she was involved in any way in the for lack of a better word it seems inappropriate to college you took tori but you know right it was not a discretionary it was a ministerial task that she did when she wrote this grievance so i did finding new davis was representing right up to and davis negotiated the settlement and davis did he didn't disclose who made the statement but he did disclose to powell that other others had given statements against her and they weren't in her favor which also prompted another violent outburst my pottle so even though there is no evidence we can we can infer a rational reason why please the court judge cantor on behalf of the national labor relations board i want to first address the issue of fair clocks presence the board found that she was not between what happened and this can be a conflict for somebody to have occasion to assess credibility i mean what mr hudson said is entirely consistent with miss pa from how hudson into other witnesses who were there who do not list her as being that they list who was there that was a guy where they were anything other than a statement this is their testimony before the board they were keys at five forty four they were asked a neutral question to list who was there and when they list who was there they have the votes and they were there at the beginning of the of the event that kind together or throughout the course of it i think the concern that about substantial evidence for many was that you have the testimony of hudson i think who was leaving and say she's coming in well that she would therefore not h been present when the meeting was initiated that there's no question of that the things had gone on and been completed he leaves and passes her in the entryway to that location and the commotion occurs after that afterwards so i don't i mean i'm struggling with with assuming that a statement as to who was initially present give she substantial lebanon's to say who came in and i out particularly since since there's a reliance on testimony that doesn't seem to me to be a credibility issue but i think your honor that's where it comes to the reasonable inferences from the evidence here that when you look at all of the testimony of who was there in the various statements being said that this was certainly not a long duration incident regardless of and i have tried myself and was never quite successful to do a timeline based on everyone's testimony of the chronology of who said what before miss tanner said what she said to miss powell or what miss powell said to mr hammer you have hudson recalling the statements leading  up to when the threat was said so whether he was there when the threat was said and simply didn't hear it and then left the rule his testimony his testimony makes clear that he didn't happen if you look at the photos of the room this is a long somewhat industrial me to justify i find that she was fall based on testimony that supports her presence well his testimony just supports that he passed her that she went into a ring yes it does you're all right i cannot dispute that that's what he testified to but how does that provide substantial evidence that she lied when she said she was there when he didn't dispute that she might have been there while the the way or read the the the board's decision is that they are in the presumption that they have looked at all the testimony here is that as i was mentioning the two inferences that he was than there when the threat was said and then somehow left past her and then she entered the room where the other inference that he then passes her before she actually arrives at the site leave put is not what the board's say but what in the record might you be able to base that on that would cause us that it was supported by substantial that well your honour's the the board specifically relied on the credit the testimony of pots and on that first point and as i mentioned earlier and we do this in our brief i point and obviously policy and she wasn't there the there are the two other witnesses who don't describe her as there at the ale j relied solely on hudson's testimony to reach its yes in the board and so i in judge givens was asking for anything else in the record so those are what i can point to the other witnesses who one didn't say there was a threat but but don't place fer a clock there the fact in then obviously i was saying she wasn't there and then hudson passing her as he was leaving and in the reasonable inferences that i can draw from that is either with the threat was made and hudson was still there and then will then a fair cloth comes in or hu is removed from it i don't know off the top whatever all the evidence assessment you didn't read the rest hudson's testimony because the rest of his testimony makes that clear why cannot the presumption is drama that the although they all j obviously sat and heard him say this and he's the one who made that determination that the word i think that was partly false still in the a l j found in favor of the union it was the board that overruled the a l j year and that correct your honor it doesn't happen too often does it i can't speculate or honor based on my system all sample size of years with the board whether that is common or not i will point out that in the board obviously didn't say this but we do know in our brief that to the extent that assuming our go window she was there so then we then have fair clawfoot who was a witness so then her taste statement isn't false but we still have her submitting an adverse statement as the only corroborating witness as a union official she submitted as well and then what is what is a witness to an incident of this t needin representative but also an employee of the company what is that person supposed to do we are under the board specifically noted that this decision had unique circumstances  that were nearly transfer circumscribing the unfair labor practice so to your honor's earlier questions to my brother at the bar they found that it would not be an unfair labor practice merely for fair claw to had submitted an adverse statement the issue here is that we can see probably how the union should have acted with the knowledge that fair cloth was submitting an adverse statement substitute any other union steward to begin the process well well i'd have to back that up cite me a case that says that to not do that was unfair while it's kind of what's the precedent from the board or case law that supports that well it's decision here that having and it's the three facts that have been misspell we don't i think it's it looked at the three facts here and then i was like this u your i don't think your honour's it the the council discuss this i do not read this is the border spouse thing a new theory it's looking at the incident that happened here and it's finding that based on these three facts cumulatively that the union breached  to grievance and submitted well i the way i read this is that based on again the the three facts is that you have only cropped essentially what was a she said she said becomes now i'm not asking you what the board say ed i'm asking you is a policy matter what harm to the integrity of the proceedings is the haitian and that miss fair cos playing people while your honor since the board didn't expressly address that in terms of out of a policy matter it talked about it in the context of the other facts here that you have in adverse witness being the one that is initially as representing the grievance in front of the company miss fairclough had also previously during the course of investigating this had told wal  the site manager about all these other things that mr loft was doing so and obviously as he mentioned miss it's but up well to characterize it there was some type of personal problem between the two of them so then the union sens at the very first beginning a commence of the commencement of the grievance proceedings the person they have filling out in the person that they send to the company is the person saying how our fact of the initiate the process she filed a grievance on behalf of miss out that step won and that's i disagree that davis takes over to negotiate it's that today when they actually face to face negotiate with the company yes that is correct he comes up with what they thought was a reasonable supplement and then duty breach of the duty of fair representation no your honor i'm i'm not familiar with that but that there is a specific case that lines up exactly with the unique facts here in the board recognize that tell us there's any precedent you can't tell us what harm is occasioned by the integrity to the proceedings i mean what kind of it would give great deference to the n l r b but it's hard to know how you can give deference to a decision that appears to factually wrong and you can't successfully answer either of the other two questions about the source of the obligation on the part of the not part of their obligation is to treat the grievance fairly and so the board looked at these facts here and found that they were unfair in the board and that the written grievance form was in accurate or inappropriate it made no findings either way to my recollection that's the only action that ms faircloth took was to complete the grievance form and it was in fact  form which was in process and moved her grievance forward wouldn't it require some sort of allegation that there that there was an impropriety fire or do you think in a certain certainly understand it certain circumstances that might be a fact that that was not a fact that either was found here or that was present here if if either if any of the three facts upon which the board clearly says it its entire decision is based if any of the three of those are not substantially supported in the record in the board's case fight that's correct what we do know in our brief that just because the first fact might be that in fact she was there so she was a truthful witness but still an adverse we do know that that doesn't necessarily mean the whole case fails but in that if the board says we base this whole decision upon but indeed that the board expressly said that this was to your honor's a three legged stool and that to the extent that the court were to for whatever reason analysis substantial evidence knock out one of those loads then the the in vacate the decision then that would be up to the board to again i i don't know exactly what the court would be saying in the decision but if the poor or if the problem was that it needed to be  essentially issue a new decision that would be for the board to decide if the court's concerns were board please reevaluate this evidence or address this piece of evidence that you didn't address and then reissue your decision so under those type of circumstances where the court essentially is not finding that this is definitively foreclosed the board would ask for the decision back and lastly to judge given this point the issue of harm here which i think is going to essentially whether the grievance the god consider what the practical impact of ms fair closs representation at step one was in terms of whether or not the union had breached it overall d d or not would seem to be something to consider i think your time's up is there not more questions credited testimony supportive of conclusion that your cloth was not present during the incident he did not rely on the he did not rely on the other witnesses he didn't say that the board didn't say that there was a lot of other you know i have to confess i'm not i'm not one hundred percent positive but i believe they said they didn't hear anything you believe they said they didn't hear anything that they but there was there there was a different description of the the banter that was going on back and forth so that doesn't really prove that didn't happen maybe they got the where they are but they're not they spoke to the presence in this fair cloth according to mr cantor that i don't  i just don't have that another significant point here is that the ale jay discredited pauwels testimony about what happened that discredit she denied making the statement he discredited that powell also said that bear claw was not present but the judge doesn't discredit that part he doesn't say anything about that part of the same token on the other hand the judge present and the judge doesn't discredit that so i think the judge and the board you know made errors in interpret in the record and that supports our contention that there's no substantial evidence  basically what the with this decision would require is one of strict liability theory that whenever something like this happens you don't there's no explanation as like dynamite there's no explanation as to why there was no disclosure whether was for intentional or not and there's no evidence therefore that it was in bad taste and there's no evidence that it was wholly irrational that's the law that's declared by the supreme court in the supreme court is is who makes the law and the duty of fair representation not the m r p and there's a vast body of law already out there now perhaps you know in a perfect world in which the unions are not required  perfectly and in the exercise of their duty a fair representation would have recused herself and had somebody else right the grievance but it would have made no difference and that would impose a duty akin to the attorney client relationship argued in my brief an attorney representing a guilty criminal commits malpractise if he considers the interests of the victims or the interest of society at large but that's that's not what unions do and that's  supposed to do they have to consider everyone's interests and that's what they did here they did not reach the duty of fair representation we would just ask that the decision not be enforced enforcement be denied and i believe that should be the end of it you we thank you both for your argument and will consider the case carefully and i believe that's not the case is to be argued this morning in your ma