counsel i am patricia hill and i represent some boat rentals the respondent an appellant on august th two thousand and twenty the district court for the eastern district of wisconsin granted petitioners request for an injunction court sunbelt represent operates a construction equipment rental business with locations called profit centers across the country and it has a profit center for its general tool division  biggest people how many how many employees were there a tranquil total ok including the not bargaining unit employees yeah everybody you know that would have been and should be about have a profit center manager mr mayfield was the chief negotiator he made the final determination as to what each of the proposals would be what happened to those eight employees who participated in the election and were the highest paid sunbelt employees and was johnson i driver was terminated for losing his license another driver posted and received a promotion to outside the unit in mechanic posted for and received a transfer to another division another profit center was two who was terminated from violating a safety rule went to work for a customer so almost two to have ace doing the same thing that he was terminated for and reported him to sun filed on for labor practice charge it was denied it was appealed and the appeal was denied another driver the union steward jamie smith file of the pilot is safe to rule and was terminated he filed an unfair labor practice ch that was deny appealed and the appeal was denied that resulted in a road mechanic in a shop mechanic being employed by the middle of july of two thousand and nineteen contrary to petitioners brief sunbelt does not employ maintenance employees at the franks for profit center there for the record it's clear that six of the eight employees took it upon themselves to ampex impact their employment status position that they were qualified for only one of the two mechanics testified at the hearing the petitioner in the district court failed to address how listing those two laid off employees is eligible for rehire generate business now because the franks the location is right off of i ninety four it generated more walk in business than any other profit center in wisconsin in fact the former profit center mat manager testified that in her st year as profit center manager at frank's bill and when that location st opened that the operations manager dan now well based on the high percentage walking customers recommended having a drive through section  the mechanics workshop and transferring out all the big question meaning like the sixty flip booms the variable forklifts equipment like that robert rivera the walker general tool manager testified that franks will hit sixty to seventy percent of its business from walk in business while his waukesha location had twenty to twenty five percent walk in business mr anderson testified that the fonda lacked location that he transferred to  i probably had a temp of the walking business that frank still had now those walk in customers rent the smaller equipment as explained at the hearing the larger pieces of equipment generate larger revenue dollars and that smaller pieces of equipment but there is a greater return on the cost of the smaller machine there's undisputed evidence that a piece of equipment that cost ten thousand dollars and that would be a smaller piece that franks the location would generate one hundred percent to two hundred percent return in the st year of its life at two hundred thousand dollars piece of equipment but only generate thirty thousand dollars in the st year of its life it was the larger equipment that was rented at the job sites and that equipment was kicked off by the unions bantering and inflatables the reports from down and out well demonstrated yet at frank's field the larger pieces of equipment were suppressing some of the profitability of that franks the location to ensure that franks still did not need to be close based on the large equipment being kicked off the job site progress towards a contract unions chief in negotiating acknowledge that more than twenty tentatively agreed to provisions and that's without the subparts two of them were very important also include it issues with the inventory short she had made at the hearing she had three consecutive audits with inventory shortages and the last one before a terminations this is a shortage of sixteen thousand dollars additionally mr bogart us the reason that you're outlining the commercial background of frank's ville profit center is because you're trying to make the point that the reorganization was driven by commercial realities and commercial needs and disconnected from any anti union animists that way that is correct sir it also shows that it wasn't something that  wrong to take stock of the the negative impact that the union activity was happening as a result of you know placing the inflatables at job sites the banner enim what have you that that that couldn't possibly have been welcomed by sundial and isn't it a fair inference on the district court's part that mr mayfield was certainly aware of that he wouldn't he wouldn't have been oblivious to it correct he was not oblivious to it your honor but there have been lots of different issues that he was not a blues you know he was aware of and you know my point is that my point is that if he if it's a fair inference as you're acknowledging that he is aware of the union activity or what he may have considered union agitation at the customer sites any reorganized in a way you know that just entirely got out of that line of business why why does that not support you know the district court's entry of injunctive relief here because your honor it that was that had been ongoing for quite some time and started supposedly started in february i guess you might say it really started to be something that was on the front page of the newspapers and everything else in about march it was the monetary impact that's what resulted and well sure if that's if that's your view that's still well that that's your view of it right but that what you have to demonstrate is that the district court was entirely wrong to view the to view the union activity or what may have been thought of as union agitation as a reason just to get out of that line of business and go to all walk in business at frank's full right but the district court only mention mr mayfield i believe it was five times didn't discuss his animus at all then even look and analyze that aspect of their decision your honor with with due respect it was mr bogart it was that administrative law judges decision and the district court's order concentrate now but i don't know how you can you know i don't know how you knew about it he knew about it but did that but did the administrative law judge or did the district court judge read lott and make any analysis and say it was because of the act that is why he needs the decision he was faced with do you want to close this completely or do you want to at least have it survive see what we can do and move on from there that mr mayfield should be identified as having anti union animists because of mr crowe bogart's as actions or mr pender who had nothing to do with negotiations or the reorganization so with respect to that we believe that there is nothing to support that it was because as you pointed out judge scott or that it was because of the battering and inflatables it was the monetary result of what was going on how do you respond to that as best you can and those two hundred employees were eligible for rehire and if you look at the numbers by the way there was one other thing that was i think not quite stated properly in the in the order and that was that sunbelt we use allegedly refused to respond to the request comparison now also with respect to the allegation that the one hundred and thirty nine is a fledgling union that is not supported by the testimony you want to hear that you determinations marriage issues but that's not why we're here those those are for the board and for the administrative law judge we are here in this forum to ensure that sunbelt does not profit from its illegal conduct prevent employees rights from being this aerated preserve the board's remedial power and effectuate congress's statutory intent the district court correctly recognized the potential for a reparable harm that flows from the types of unlawful acts that sunbelt committed the court was well within its discretion to issue an injunction prevent irreparable harm and preserve the board's remedial authority the record shows that somehow harbored deep anti animus from the moment employees showed interest in or denies that animus then pervaded every aspect of some belt's dealings with the union and the employees who support it from the start some belt told employees that if they chose the union some bell would close the store and terminate employees when the union won despite some belts threats somebody then refused to bargain in good faith and then when dragging open bargaining failed to remove the union you're using sunbelt you know broadway one of the things that my sense is running through ms hill's mind and who do you have in mind is because mr mayfield is the one that made the reorganization decision as you heard her emphasize this morning and so can you focus on mr mayfield in particular tell us why that the focus on him is not the proper focus in what the evidence with respect to court correctly applied the board's right line analysis and gave appropriate deference to the administrative law judges findings in evidence respectfully remind the court that because the district court did not conduct its own evidence your hearing and it appropriately gave considerable deference to the administrative law judge factual and credibility finding and also given the board's expertise in this matter the district court was appropriately hospitable to the views of the fuse of the director here we have multiple statements and actions by supervisors and managers this includes anderson bogart this and mayfield those people specifically let me back up anderson and bogart as they then met with their manager which was mayfield to discuss their statements and their plans to surveil and house the union the critical piece here your honor is no supervisor or manager at any level in this case is an island there is evidence that links them all together will guard us regularly met with mr mayfield to discuss his plans to terminate bargaining unit employees indeed mr book artist directly testified to this fact and that is in the board supplemental appendix the transcript in our supplemental appendix at pages forty dollars to forty one dollars mr vargas expressly says i met with mr mayfield about terminating the union mr mayfield was also the bargaining decision maker who presided over a year of bad faith bargaining mr anderson surveilled employees union activities claiming he was quote fishing for information and then he reported those findings in an e mail directly to mr mayfield with coffee copies to miss hill and mr bogart us and we also produced that e mail and that's in our supplemental appendix of page ninety one there's no way to plausibly suggest that any of those activities occurred without mr mayfield involvement and or knowledge as the highest ranking manager for the facility critically judge but i think this really go to your point all these managers are agents of sun belts and there is no evidence anywhere in the record that mr mayfield or any other senior manager disavowed the statements or actions of their subordinates that under well settled board and circuit law imputes all knowledge actions and ultimately liability to sunbelt this then provides more the insufficient evidence of a causal connection which is which is what we're looking for in the right lane analysis a causal connection for sundials decision to terminate the entire bargaining unit regardless of how it was finally effectuated agents of sunbelt namely folk artists and mayfield discussed ways to terminate bargaining unit employees in some form either by shutting down the entire store or just it what about the point that the reorganization of frank's bill to primarily a walk in business was made by mr mayfield and that was driven by just the economics of the circumstances that your honor we believe was on the one hand at worst pretext at best at best an insufficient business justification again they did exactly what they promised to do which was terminate the bargaining unit mr mayfield admits he there's no documentation of his decision to reorganize the location he it's not something that he typically does again his direct testimony was i don't typically handle these i leave to my managers i don't i don't typically work with layoff situations i leave those to my subordinates he's not typically the one who in the  st instance makes these kind of decisions he expressly testified to that occurs at the local level the critical point and that in terms of the alleged economics of it is that they were making more money than the previous year that summer in two thousand and nineteen and then when they they effectuated their alleged reorganization there st they continued to do the same work that they had done before simply would not bargain employees and did that to liz late as december twenty one thousand with the ministry of law judges hearing was going on nd their revenue precipitously dropped the following month showing that the reason for the change was likely not the reason given because the change was we're allegedly losing money so now we have to get rid of and there's all this walk in business but then they lose even more money they they go from a positive actual revenue stream pretty organis reorganization to a negative positive to it's easy to a negative actual revenue revenue stream post or organization these types of violations this this terminating of the entire bargaining unit these bad faith bargaining threats of futility these are violations other precisely the type of hallmark violations that section ten j is designed to address because they predictably chil union support it's critical that a final board order is not going to be able to effectively remedy what happened here for a final border is likely to contain at least a bargaining order in reinstatement of the unit likely among other things but by that time years away they'll be no employee support and the remaining employees will have seen what some bill does to those who support the union the union won't be able to bargain with the employee support because that support is critical to successful and then there are a complaint is issued and then the administrative law judge the case is presently pending before the board and under the board's rules and procedures cases where a section ten j injunction has issued to get expedited yes but but also your honor this is exactly the reason why section ten j exists why it was put in the statute is because it recognizes unfortunately this very slow pace of the board and which is why enough time to make come to the right decision the correct decision in this case and unfortunately because of because of that long time and it's unknown when the board will rendel runners he's me final order that's why it's critical that we affirm the district court's injunction of course otherwise employees will have seen that the union can't protect them and they're protect them seize me and their rights and that a board order attempting to vindicate their rights is years away also remember this is not speculative in this case there is affidavit evidence showing that following sunbelt unlawful actions the union's efforts to organize it other locations were rendered null without an injunction some belt will of gotten away with its unlawful goal of destroying the union and robbing employees of their statutory rights gordon circuit law is well settled both as to the violations in this case and the criteria for section ten j a junction which the just your court followed and its decision and order should be a firm you don't have to answer right now but at some point before you conclude can you address the issue with the over possible over breath of the injunction on the any other manner in light of the supreme court's holding an express publishing certainly you advance you know statutory purposes here but isn't isn't the problem that it's basically a future mandatory  injunction it's basically saying it and this is the issue that i have heard that concern that i have with it might have expressed publishing you can't you can't by way of of a mandatory order say do not violate any aspect of the name national labor relations act or here section seven on a going forward basis you know you might be able to tailor more and say you shall not engage in like conduct but you just can't say you know you're not allowed to violate the statute in any way or this this circuit specifically dealt with this in its cutting decision it initially did look at the possibility that a broad order  permissible it simply wasn't permissible in the cutting case because there wasn't the type of widespread and egregious violations that are reported over what point of law does express publishing stand for in your view if you had to summarize the holding how would you summarize it's that that's is binding as anything on us you're right that is not coming to record of mine and if i may request that the court allow me to file a supplemental brief on certainly one of the most egregious violation here and as i characterized this earlier that it really is the capital punishment of labor law is that the that sunbelt just excise the entire bargaining unit it promised to do that from the start and then it made good on that promise that type of just terminations of the entire bargaining unit is the type of violation that really just stays in the memory of employees both the employees who were terminated and the employees who saw what happened there are other situations there are the situations where maybe the union was more robust which this goes to something i want to correct something that ms hill brings up often that this is  a she claims this is not a fledgling you know union however she's mischaracterizing what's meant by a fledgling union that is as to the employees at that shop not the union as an entity the union simply represents those employees so this is absolutely a fledgling unit it began with ten employees it ended with two and then those two employees were fired unlike judgeable perhaps at other locations where there's multiple shops in the union still there the union would be able to survive something like that here st this circuit's jurisprudence recognizes fact it often uses words like it's common sense that these type of violations cause long term and if not if not remedied by an injunction it will become irreparable as opposed to other places where the union would be able to would be able to withstand that type of  vicious unfair labor practice i see my time is starting to run down if your owners have no for the question i'll make one final closing remark and that is that without an injunction sunbelt will trough it from its unlawful acts and employees will be robbed of their statutory right to form in join a union bargain collectively through their representatives of their own choosing a final border will simply come too late the district court was well within its discretion to order an injunction and this court should affirm thank your honour's yes or thank you st of all let me start off by saying that contrary to what i just heard mayfield stopping now that there was also an allegation regarding that mr mayfield ordinarily did not do that type of thing that we were going to sing a facility as i stated location it was no one else at that location mr mayfield had to step in as a district manager and then try to get someone handle some of the property profit managers eight responsibilities location but it felt to mr mayfield and that has been ignored and by the wage better i apologize i counted but number of employees there and there were fourteen employees at the time of the election nine and contrary to what i just heard there were only eight individuals who voted in the election at frank's bill now ok seven i get the benefit of your reaction to one question sir and it's that there were i think thirteen or so agreed meetings negotiating session just over a fifteen month period here and you you know you offer the reasons why there weren't more etc but how do you respond to the board's point that that's just simply not enough that's not enough that doesn't show a serious good faith commitment to working with the union that you know sometimes you need to work three hundred and thirty four days a week and have some evening negotiating sessions it's just not intended to stretch out like this with respect to an evening negotiation session the union would not work past a certain time usually at about two o'clock in the afternoon your honor with respect to trying to have more than i can i it's formulaic some of the decisions that are out there to be very blunt about it please look at the quality of the agreements that the parties reached i mean they were significant and they were economic proposals that were agreed to and from the get go some belt was prepared sometimes even before the negotiations to be able to have be all the benefits and the handbook this is a new union they didn't even know about the benefits of the hand and so your honor we it's pure speculation that those members would not be agreeable to joining a union or any other location in sunbelt because the union also had an adverse impact on the wisconsin district due to the ban to rein in the finals yet it is pure speculation i apologize for going over