where the ad but forcing an employer to give a message that is inconsistent with the action or has legal problems and constitutional problems and it also in that way puts them in a position where they're seriously undermining their credibility with the employees here because you're relying monarchies flaw in the exchanged parts for this idea of a requirement of progress but grand acts tells us that even if there's inconsistent judicial decisions that we will think this question is pretty clear because it's on the face of the statute it only prohibits discrimination for the purpose of discrimination true disclosure encourage union membership and the supreme court in looking at that language sixty years ago actually used the word decision is there may be instances where there is conduct that is so in destructor of right that no matter what the circumstances it always violates the law but beyond that you need motive now this is not one of those circumstances because  itself has long taken the position that an employer is allowed to come forward and present evidence because of course employers and withhold benefits in the regular course of business so we don't even if we accept your argument we don't need to decide that ourselves as to whether this is so inherently destructive when we read man to the work for them to apply the proper standard i do think that the appropriate thing here to do is apply the standard that has always been applied which is you need motive and look at this record here and say we don't have the baron's we don't have the of the board they bear the burden of proof here and they should have made a record on this issue because it's part of their been approved so i would say that if you take a look for instance at the ninth circuit's three for a packaging case it's a similar case and what the court said there was the broader improperly believed it could just infer motive or a motive for profit were doing so was irrational under the circumstances and therefore it refused to enforce that order because there was no evidence rather one substantial evidence that there was an shifting that the supreme court has and has instructed suggest that the burden is shifting to to the employer to put forward some explanation but there may be situations where the conduct is inherently structured them well your rights that even that explanation would not be sufficient why why isn't it the case that the board here has simply need a determination that selectively granting or denying benefits is in that category of inherently destructive conduct that warrants this presumption to the extent of what has made that determination the only other time it is done so to grant benefits to some employees not in service and i think it's critically important that part of the reason that's how america is because that is what the board itself has instructed employers to do if you look at the no is new york bagels case that's a case that involves employees getting benefits and others not getting it and the board said not only that it was brought home to proceed that way but that it was the prudent course of conduct and then announce the rule that an employer should not be put into effect any increase not already decided not and so we don't just because there are some circumstances in which it might be rational to drop assumption but those circumstances as courts have said for decades are only circumstances in which the employer changes the status quo so for instance if there was an annual wage increase that always came to you and they said this year we're not going to give it to you and it was because there was you know the saying conversely the exchange current situation of printing out of nowhere a brand new benefit that is a one time thing that shirley granting the benefits increase it was only the theory but it was problematic because of i mean to take the birds final pages of history of say quite clearly before this court that it believes as per se unlawful to have given to some and not others so that's exactly why they didn't think that they needed to demonstrate that there was any sort of improper motive or anything like that although i would note that the board not pushing this issue does suggest that we couldn't even give the increases to the other employees which i think just goes to show how much employers really are right in an impossible position here because we're told you know oh you should realize you should go ahead and do this rather bored at the same time it's general counsel i remember well no it's really suspect that you these to anybody and i don't really know how an employer at that point figures out what they are supposed to be doing because whatever they do there's going to be an unfair labor practice charge and it's always the board of the right to keep applying a presumption of illegality even when it's granting were withholding it just creates their presumption is that i don't didn't read the briefing as asserting a presumption on the part of the n l r b well i take their brief before this court that says oh no you have to do it and if you don't avail yourself of the state harbor that's right and i think that that's actually true when you look at some of the board's own cases here there are cases where they've said the employer didn't violate the ra because they followed than if you had an improper motive i think that's exactly right and to go even a step beyond that we actually have jurisprudence from the board saying that it was ok when the employer didn't all of the safe harbor so they have specifically you know west employers doing what we do here there's really no need for the difference between what they said was the prudent course of conduct in the know is new york bagels case and what we did here which is why we said below we don't understand how you can tell us not to change the status quo and then turn around and tell us that we violated the law by not changing the status quo disagree with the proposition that the word does have this authority and discretion under the act from the facts and the racket which is why we wouldn't take issue so much with a presumption that was limited to circumstances where the status quo is changed because those circumstances there's at least some basis for saying it sure looks like he responded to the employee is simply trying to preserve the status quo as the board has told her to do so because in those circumstances more likely than not the employer is doing what we do here which is a good faith effort to comply with the board's own interest on the face of it there's agree with you that it looks a little odd that that is what employers are now in a position of doing but they are put in that position because the current been there that has told them that is what they should do so at that point the bird can hardly turn around and rely on the fact that it put the players in this difficult position and then say we didn't burton the fact that you're trying to comply with a law that you're actually doing something improper so the court has to be clear to employers about what they can and can't do here if it wants to infer from what they do and don't do that they're actually trying to influence the election rather than do their best job to make sense of all of this conflicting guidance at the great dane that the court said that all the board needs to do to shift the burden to was not given the ones who weren't and the benefits increase i was going to get out i'm sorry we're going to go and when it did the employer responded by saying i'm sorry we can't discuss this with you right now because we're not allowed to as a matter of law and that's it that's all they said which is consistent with the law it would have been inconsistent with the law for them to actually go on and say but we promise we're going to give you this benefit even though we may not actually be able to do so because the law might prohibit us from doing so so i think the fact that it is stipulated that our responses were simply we're sorry we can't negotiate your contract because you're in a critical period right now is in and of itself sufficient to rebut any presumption that might have provided here although we certainly don't think there's a rational basis for even having a presumption or an inference on there's an issue here of the c herbert so kind of shows the problem with this whole morass of law here because telling the oh you know you get a raise today but you're not going to get it for two weeks because there's a you know reaction and then suggesting that somehow they're not going to tie those two things together i mean you know there's a lot of problems with all of this so you just just go back to plain old intent and purpose and somebody better show it i think the best way to deal with this is say you need context where you're changing it for non election and eligible employees you know perhaps this would be a different case but we have decades of cases in which courts where we go out of their way the orders from abroad they don't get in first i ones with the we're fails to bit i mean if you had gone ahead and gradually increase across the board you would have needed to put forward a reasonable business justification for doing that but also that itself also would have been and now from liability well except for the fact that the board has already suggested that it also didn't think we had a reasonable business justification for going ahead with a sort of ballot itself in this very case is talking outside of the mouth saying on the one hand you know this was  obviously you could do it while arguing for its general counsel back before the board hey all of this looks really suspect since it was the week before an election so it's the board that the ultimate problem here it's really just the same problem that was recognized s after exchange rates by the second circuit in adorns case the board can't say that the same conduct is both inherently wrong illegal to to go forward or not cooperate with the senate very same increase can you help us reason and the board presumably can we that and make a decision about whether it thinks that that that type of presumption is repeated but then the court has also gone on to say that really there is this category of cases that is playwrights the boord in fact need not credit the explanation put forward by the board and regardless of what the employer put forward the the inference of the problem is none of this conduct is because the board itself is wrong take a view that in every circumstance of granting or withholding it matters if the employer can come forward with legitimate business such and that is itself a concession that the conduct is not first say on walker which makes sense because employers have to make determinations about benefits and they have to do so even when unions are on the scene so it's just not the kind of conduct you can treat as necessarily inherently per se unlawful it is that most conduct that in some circumstances might create the kind of presumption that's discussed in those cases but presumptions have to be rebuttable and  is the most helpful one on this is the ninth circuit says they're you know they can infer when the status quo has been changed but when it hasn't been changed it's a rational to infer improper intent and that in and right thank you thank you s with regards to know was new york it's important to note that there were two benefits at issue in that case so it's important to when reading that understand that you have to look at that there were two things going on in that case and i just want to make those clear the board in that case found that there was no unfair labor practice where a benefit was withheld because in that case the employer successfully utilized the say over and second that there was no unfair labor practice where a second benefit was withheld because what the board found there was that the benefit the decision to make that benefit was so premature essentially there was no guarantee that that benefit was going to be announced imperial was thinking about it they were maybe going to do it and then at the last minute they said well the elections coming we're just not gonna go ahead with that and the board found there that that was not enough their labor practices because no benefit was withheld that was not even determined yet what the benefit was going to be what the contours of that were going to be and let me ask why did the work not need to enquire into the intent and purpose and why did the a l j just say oh you didn't avail to where we were going to win it why we didn't grant it in there would have been much more there that would have required credibility determinations and very specific fact finding here it proceeded on a stipulation for reasons that i was not consistent with its decisions is working out what is the employer's motivation because again the foundational principles here is that an employer should not change their conduct whether granting or withholding a benefit just because a union is there and one can imagine a withholding case that might not have to do with a union it could in that employer can't be the rule because even the safe harbor anticipates a recognition that there is a different treatment because the union is on the scene and specifically benefits i mean that benefits are being given so it has to be that that's permissible well you are on a good that's why i'm not inherently coercive miss a far it doesn't seem to be much of a safe harbor at of what has actually gone on weir's they're finding the purpose we want to do this case the board posits that that is it's finding a motivation that it's consistent again with the guiding principle that the company should not take any se improperly motivated that's what the a m g essentially found wrong your honor by not even the veiling themselves of the safe harbor we're not in the situation of that they tried to and somehow fail with inconsistent precedent of the word and and and understood that this action that is failing to take our leave the status quo in place not taking any further action not making an announcement to the employees and when asked questions saying we can't address that we can't take any action now in indicating it in its terms that there's legally obliged not to act at that point case but if we look at some of the court the board's earlier cases off the top of my of the some of the brits were cases off the top of my head i i believe that that comes up in  the boards of pennsylvania gas and water case where it bit us some poor decisions on this topic when it does go into much more depth again possibly because of the facts of the case talking about why withholding a benefit can be so destructive before an election and that makes sense if it is an exchange arch more concerned about a grant of benefits the business side with all the growth rate before the election here there's no velvet glove all that's left is the fists all that employees are going to reasonably understand from this is a benefit is being withheld from them and three years later continues to be withheld from them because they elected to exercise or section seven rights seeable is not the same thing as motive and purpose i mean it's reason foreseeable something can follow from another but that doesn't mean that there's an intent or purpose these days it's a difference between a discriminatory an intent buzzword language in this type of analysis but with the company admitting that the reason it didn't grant the benefit to the others or to the employees was because they were voting so proceeding that from that essential admittance as to why it was not being granted and then in addition to that the general presumption that during this time that we are extra sensitive through anything that might be upsetting the status quo or influencing your action one way or the other and that is can be timing or it can be other statements made and in addition here than the fact that there is this wrong and safe harbor that was then not legalized and in fact statements were made that would have contradicted any attempt to lawfully withheld this benefit but a safe harbor is not a steward safe harbor it's not something that you if you don't avail yourself of you're in trouble if i have the word document i will do a quick search of the word presumption your honor i i believe it comes up in our but then there's this other things described by the court that leon simply presumption associated with written shifting seems like a conclusive presumption how how can i we say that  i would point out so again this is page eleven one of the d n all of the combines decision in order appendix twenty eight where after the a l j it's near the end of constitutional it isn't that different then reason the first amendment claim it's that it's ensuring that the construction we undertake is within constitutional parameters it is your position that that analysis of eighty one violations in the context of interrogation or surveillance the balancing that exists that the broad undertakes is that employers each conduct is a violation of those instances only if  honor we're not somehow implying that the court cannot in looking up what the board did here if you know it's looking for essentially reza corrosion of those are interference or restraint and that's what makes the board unfair labor practice findings square with the argument that that i believe rhonda was just positing that the court somehow didn't get to look at those just because their specific free speech and first amendment claims are ten and on this surveillance issue involving humanise and we we have a statement from the group declaring seemed to declare certain factors as that the employees didn't otherwise know that there would be there was surreptitiously surveyance in that bringing to add to their attention that there had been surveillance would suggest that there was going to be futurists are being lance union related activities and possible consequences to them here given and then is being very outspoken and communication back to him then it is about the reaction to the statements in the newspaper rerouted switch to parts it's it's to go where oh talking about what happened at the management meeting and the employer somehow and that they're going to paint be paying extra special attention to him which is very different than the case of if the arrow head or supervisor just acknowledged to an employee oh i saw you were quoted in the newspaper this is this is his friend ys the golden boy and then walking to his office and obviously admittedly and then has followed him based on that remark first let me ask a question relating to the tradition we have discussed the born factors in any opinion of ours do you agree that they're relevant i think they are relevant i mean i think it makes sense that the right way to answer these questions is to look at the context the types of questions that were asked the information that was sought so you know we're not disputing that i quote contention on all of this is simply that if you look at what they all day in the board said here it's pretty clear that they thought it was her say on walking to ask an employer employee whether why they support the union and there's two things i would point the courtroom particular one is on page twelve of the j the discussion about the conversation between monica and then as when jay says you know they crossed the line by asking  questions of why do you support the union all the other questions were fine but he crossed the line when he said why do you support the union and then the other thing is the actual order that the boards asking you to enforce here which instructs my clients to cease and desist interrogating employees about their views on the union not coercively interrogating them not asking them questions in a manner that contains implicit or explicit threats or anything like that but just interrogating in other words it orders us to cease and desist from asking employees anything about their views consistent with the basic argument we're making which is it's very difficult to square any of this with the first amendment which necessarily is not a distinct claim but as you know just something courts need to take into consideration when determining whether speech  during i think that case is different for the reasons that you were suggesting and that it's not an instance where they would have been perfectly logical to the employee that of course you knew what he was doing because he was doing it so publicly and the other thing here is when you look in context at the t people because you're being really really aggressive about this which is consistent with him then is his own testimony that in the hall he just struck up a conversation with go arrow about everything management was doing wrong and why they needed a union so this is just you know two coworkers one it's not his direct supervisor it's one just saying to him hey in my view it might not be a bad idea for you to tone it down a lot but then you have a substantial evidence standard here which is very tough would you not agree i don't i coercion or surveillance and i think that that's partly because we are talking about speech and the first amendment and the supreme court has cautioned you know you have to read these terms in this statute consistent with your position these fall within and the pronouncements of graham yes nine course of questions which is this court said you know if you didn't ask now of course the questions eight one record directly with the first amendment and i don't think violates the one that isn't protected by the other and vice versa so i it doesn't really ultimately matter if you think about this as in a one case an a t c an eight c case or a first amendment case because all three of them reflect the same sense of this is strange and the act itself is a particularly look at the chamber of commerce which is brown decision whether the court said that congress failed preempted regulation of speech or because it felt so strongly that it was important that both sides be able to speak so i think you know that i'll just have to be taken in consideration in any a one case whether or not we specifically mention the first amendment before the court right thank you very much