your thoughts and n b c did that we'll call the first case of the day which is creative vision and resources versus national labor relations board and personal hear from m and but with the time we have we can see two that we really ought to focus on but let me just tick off the seven if i had more time i would talk about them all the necessity of a union bargain demand the hiring when does hiring occur third what is adequate communication new terms and conditions of employment for what is the legal test for the perfectly clear exception five there are critical there is a critical credibility resolution never i never thought i'd be arguing incredibility resolution to an appellate court but there is one that's crucial in this case of a six one is the sourcing of hopper's and the seventh one that we see in the case of course is whether the complaint was in validly issued under the federal and the federal vacancy reform act we're going to focus on two issues primarily the first is when did hiring occur in the second what is the what are the communication of the terms and conditions was was adequate  to make this a success or a newer narry successor we have handed to the court a two charts that we think will be helpful in trying to determine when the hiring her  in our be aired significantly in this case when it held that the hiring actually occurred on june first the day before operations began and the difficulty with that is that creative vision had no way of knowing on june first who was going to accept employment when it started the next day no one had chosen to work for creative vision they tried to start on may twentieth of two thousand and eleven but the workforce wouldn't accept the new terms they continued to source hoppers to work and when you get to june first all the sudden the that's when the bargaining obligation accrues and by that day nobody had accepted employment yet significantly this court and it was judge wisdom i believe  normal maintenance held that in till the work force is actually assembled and in that case operations began and then a couple of days went by and that's when the new terms were announced and that's when there was an assembly of the workforce there was no assembly on june one and if you have in it and well maybe it's a strong authority for the fact that you have to have operations when people can choose to work  or not choose to work an interesting question why with the in a lot of the take a typical hiring date which really occurred on june second on june second you got about seventy completed applications i think it is one june one and that's when the berry three contract was cancelled i'm not saying this is she is simply a worker and said in zero dark forty of whatever it was on june two that is the actual date of employment that we need to worry about i mean that's what courts have held for example the bank case from the second circuit that court held that the barring obligation accrued when operations began and so there is authority that that the hiring  a substantial representative complement hired when is it hired and if you look at the spruce up case that didn't occur until april fourteenth now here's one reason why it would it can never be june first what if on june second those employees did with the employees and spruce up did and went out on strike the employer tries to start on june second it makes an announcement to all the employees what the terms and conditions are and the employees say no way in the oil untried then that explodes the june first hiring theory of the n l r b in this case the substantial represent complement for spruce up didn't occur until the employees gave up the strait almost a month and a half later on april fourteenth now why is this important to the case why would this hiring was higher if june two is the date then that totally explodes in all of these argument that there was inadequate communication why is that because before operations began on june second the company creative vision announced to the seventy plus hoppe hopper i applicants that where they are all the new terms and all the new conditions that meets the n l r b east test and spruce up if you look at specific uses the word before operations began or simultaneous simultaneous is in that decision so that's why the n l r b had to back it up one day because that would have that would totally make them lose on the perfectly clear exception argument when you met back it up one day then they can play in the ambiguities of how much communication went on before you know from mid may until june first but where do we stand i mean this was some years back now are they are they with the union representing the hoppers today or thirty still an issue i mean it seems like a lot of times past and maybe all this has been taken by time it's been taken care of representative of the employees and this is simply over whether we have a back pay liability for putting in our new terms and conditions which the supreme court said in burns and falls river we have a right as as a successor to implement our new terms and conditions so this battle isn't over whether we're going to recognize the union or not we will do that the battle is over whether we wrongfully implemented our new terms and conditions which the law the supreme court has said we have a right we have a right to do the defect of the change reduce income to the hoppers we're making when you went to an hourly wage versus a contract worker for a short amount did a little bit this was a rogue employer who had been trading had not been honoring the collective bargaining agreement had been treating employees as independent contractors was withholding no child support no federal taxes state taxes social security i was not paying any overtime create a vision went to eleven dollars an hour you know with with overtime with all the records it to gudgeons and such of course with the reasons they did that is they thought they worried that they could get hit with some kind of a joint employer liability if they had continued with this road employer the very three is what it's referred to in the in the br go how much money are we talking about which i still up in the air or i estimate around forty thousand dollars this is a small minority owned business it's a thirty six year old individual who went into business he worked for richard's disposal he saw the way these hoppers were being treated he started a labor force to try to treat these fellows correctly and improperly and these are individuals who can't get a job anywhere else can get a job at mcdonald's they've got criminal records he's hired them and they work as hoppers on the garbage trucks in this city let me go to a second point on the out of out of the city of the dissemination or the but borders oregon is that the dissemination nail jay was saying was adequate we're saying it's not that you need to be more specific then getting it out to twenty people on learning by room one otherwise the information make it to a larger group it seems to me that is at least the argument why the fact finding wasn't overdone overturn regardless of that what do you make of this is that what we're dealing with the twenty we're told in and word of mouth among  very three employees is what got it to the rest of the individuals we're dealing with really three things first there were alvin richards whose testimony was found to be sincere meticulous a stickler for detail solicit twenty popper's we then brought in there were six or seven hoppers who testified every one of the top or six of those hoppers testified that they knew about it two of them said they knew about it before operations adequate for an employer to get word out in that way yes there is and we sent that case to this this court last friday it's lea a degree in support of america and in that case the board is specifically held that employer communication can have a legal effect even if it's just up to almost half of the workforce and it's imputed to the rest of the workforce and in there is there's an example a really understanding how the workplace operates because employees talk about everything in the workplace and that's what happened in this workplace anthony taylor one of the hopper specifically said we all knew what the new terms were we all have been talking about it and one thing with her about that factually is that my understanding of the facts on june two is when that four o'clock meeting occurred employees didn't except as well to do so i mean there was always an why didn't they except they liked getting a full paycheck with no deductions yeah but the main point is that they also reduce the pay never mind their de da actions that was a problem but they reduced the pay yes joking the pay did that was not good it was a double whammy right it was they were operating legally for the first time but the pay did get reduced within the boy yeah and but it does show you of that if employees can turn down on june second or even go on strike is they didn't spruce up you know how can you say that everybody had made the decision on the day before i'd like to move just with my limited time to the bargaining the mayor argument we'd like to cite there's another circuit court case on the mississippi of the union bargaining demand for the perfectly clear by the union the successor can simply institute the terms on which the employees were hired as the beginning of the terms of employment and that was a case that predated fall river and it was based upon a reading by the that court of the what do you have to say to me if he's in court with actual hiring there is no board or court case that i know of that requires a perfectly clear successor to have actually hired this processors employees before the obligation to bargain kicks in what birds talks about in whispers that talks about is your intent to hire have you once you intend to same deal that was in existence prior to the new employer but you're saying it's got to be perfectly clear that there's going to be a change before they can get out from underneath that exception i think that's what's present says you have to make it perfectly clear you're clearly announce your intent to establish a new set of conditions if you just let the employees believe either actively or in actively that their job conditions are going to be exactly the same then you're perfectly clear successor then you run into with the d c circuit scribed and international sociate in the machine as you have logged employees into a false sense of security you have engendered expectations that their jobs are going to be exactly the same they're not going to look for another job and let me just say very quickly there is nothing in the record that these hoppers are employable by anybody else absolutely nothing some of them did leave and some of them did take other jobs at metro transportation or metro disposal so i i don't want that to to go unchallenged and it's under spruce up you have to declare prior to all simultaneously with the invitation to employment not the actual hiring date before once you decide you're going to hire in there is no question in this case that mr richer intended to hire every single shopper to work for very three once you've decided that and you know what your new terms and conditions of employment are you need to let them know that's it that's all the work requires tell them you can tell them you can tell the union there was a union this case one phone call and you're done which you can't do is tell twenty of them and leave fifty more to figure it out on their own that's not acceptable that leaves you in the i am situation where you're in gendering expectations under the canteen court for example on the seventh circuit the court agreed with the board that merely handing out applications without telling the employees something was changing that start your bargaining obligation you don't have to wait until the first day everybody shows up to start work you know mr richard knew he was going to take over this contract was very three so there was no there's no question about that he also knew he was going to hire the very three operators so let's discuss if i may for just a second the may twentieth  date there's been a lot of implication that i may twentieth to bury three hopper's of the just would not accept these terms so we had to go elsewhere there's nothing in the record that a single outside applicant was solicited or accepted employment or filled out an application nothing the only person they cite to is mr flagg jr who is so his father gave him an application while he was in jail because it helped him be released mr jr was an employee of barry three before he was incarcerated there is no evidence in this record that any hopper who would not work for barry three was solicited or given an application or filled out an application richard gave out applications prior to may twenty s he gave up twenty of them it wasn't enough at that point he solicited his friend mr flagg to pass out more that's when they got seventy mr lang told or did he and in turn did he and that is simply not enough see of boyer's obligation to tell the employees obviously by may nineteenth or twentieth he knew what his new terms and conditions were going to be all he needed to do was tell the employee also let me ask about this language from burns as interpreted by the board itself which he gets to my point to know where to find it when i think you have it backwards the caribbean born should be restricted to circumstances which the new employer as either actively or by tacit inference misled employees into believing they would all be retained without changing their wages hours and conditions are at least two separate stans when new employer has failed clearly to new employees that they will they can't be misled into thinking everything's going to remain the same and sees me that what you're focusing on is that there were may have been some ambiguity there not enough people were told  makes it a prospective employer perfectly clear that everything or some things will be changed that there are bound to to bargain with  clear in a sense that there's not going to be a change you're you are in actively telling employees everything is going to be exactly the same if you tell them everything's going to be exactly the same you're perfectly safe successor if you tell them everything is not going to be exactly the same you are not a perfectly clear so clearly seems to be the focus and will have to figure out exactly what it means employees and there was no ambiguity on mr richards part here he knew what initial terms and conditions of employment he wanted to start with we don't have an employer who's sort of trying to figure it out as he goes along he knew because he told some people and not  argument where are we going to is if you decide that june to i mean they announced what the new terms and conditions of employment were right before everybody got on the trucks so by doing that you're letting them wait until everybody has engendered expectations and been logged into a false it's security remember this is this is what you have and i don't know if that's the reason we're not on the make sure what you're saying are you the four o'clock four am meeting the new conditions are announced and you have some people aside i don't want to do that you walk away you know get on the truck but is that still consistent about before you start operations all the cases talk about your obligation that's the whole point of the perfectly clear successor exception your obligation starts before you start operations if you wait till you started operations it's too late you should just let the employees know you wait till june to everything's already started creative hired as supervisor on june first they canceled the contract with very three on june first all the hoppers were employed by can't wait until post higher to tell them you've got to tell them before that that's the only obligation here just be clear and let the argument is un they showed up to sort of get the story do for was a i mean it's a regular work was a regular workday that day everybody who showed up assuming they needed them because there's only two hoppers that go on every truck was going to be working for creative when there's no question on june two if you show up you're getting on the truck for creative or not working or that working because they only need forty four and this is not a small cohesive group of forty four member they got seventy applications because not every hopper works every day some show up some don't what mr richard agreed with his father was that he would not cancel barry three's contract until he was sure he could supply all the hoppers and to do that he set a goal of seventy completed applications every one of those came from very three hoppers he only needed forty four that day but that does not mean he only employed forty four because the next day he might have needed fifty or five different people showed up but all of those people were prior very three employees and they all work for creative minds in a second so i think we talked a little bit about credibility reversals and i mean the board certainly didn't reverse any of the board's credibility findings it did draw different inferences from them the l g a agreed that mr flagg didn't tell the fifty people he solicit applications from so we know that at least fifty did not know there were a couple of hoppers who testified that they learned about it beforehand but it was unclear from the testimony if they meant beforehand the four am meeting on june second or before hand truly before hand but in any case the l j was very clear that it is a mystery how many people heard about it before and other than the twenty who were actually told by mr richard and that was the old days finding it's a mystery how many heard about it word of mouth and the board said that's not good enough and i don't know of any case that allows that student transportation case as we said in our letter i actually about threats and election contest which is a very different kind of situation the court has another case pending adams and associates and arguing is this and these two i haven't looked the employer told the employees prior to starting so there was actually a meeting with all employees and the employer said something in that meeting and the dispute is whether or not that took him out of the perfectly clear  successorship but in that case and adams there was one meeting with all or most of the employees and he said something so that's what the dispute is about what did it mean when what he said but other that it is a perfectly closed and there are some eighty three firings because he didn't want the union so in that a couple things one is you can't just hand out a form and expect employees to figure it out and as we said at least some fair number of employees wrote in a on them didn't fill them out which indicates that they didn't actually their point i think at least a member of the board maybe a r j too is that this this shows they are no longer getting tax free money in your responses it's not necessarily kill people there's education level and whatever else but we don't know from the record is if they were also handed out by berry three we talk about these hoppers and the contractors and the very three but there was it's clear from the record that there is no legal finding that they were independent they are not legally independent contractors as we would understand it at the end of rb they were a certified unit of employees so the board certified the union which means that in two thousand and seven the board was not asked to make them an authentic contractors and in fact found them to be employees which it wouldn't do  so whether or not he supplied them with safety this or any other you know kind of they had a supervisor they were directed to get on the truck stayed didn't have it or they didn't bring their own trucks to work of course so in that way the only explicit finding is that he just didn't deduct their taxes so we don't know if they feel that before before or is he made them fill out w nine's and i don't know if i would know five years before the difference you know filling out a double united versus a dead before with the real difference that would occur to me over a few years so there is the issue is it has to be you have to be sufficiently clear i mean that's what the court said and to find out the six circuit you just have to be sufficiently clear and definite to let them know and giving somebody a form to fill out where a goodly number of them right in a on an applications some of them filled out their names and address and signed the back and that was it some of them filled out their educational status and list and some references and others didn't it was a pro forma filling out i mean you fill out a forgotten a session no when you fill out one of those forms does it show what you're being paid it doesn't it just before no no it just authorizes taxes taxes to be deducted right yes so that there's two things that needed to be disclosed here and one was that the rate of pay was going down and the other was that we're going to start with holding so handing out know i mean it would be easy enough on this record for him to tell everyone that their wages are going to change i mean what would i guess understand what the law is here i thought the point was imperfect perfect clarity if it's perfectly clear there  some change that exception doesn't require that all the exchanges be shown i don't think it requires that all the changes be shown but you have to you have to be sufficiently clear and definite that something important is going to change and i think it was in deployed our they the employer said you would have comparable benefits and wages in the court said that's not so then they made some some very significant changes so telling them it's going to be comparable to employer argued that was enough they should have known we were going to change something and that's not enough you need to give some kind of indication where employees actually know or should have known that something important was going to change well but something important there's two things here that are important and would it be enough to simply say we're going to start with holding on you when the other big changes are reducing your hourly rate considerably and that's an interesting question and we didn't we didn't brief it in of course the board did not discuss it and i think there's there may be a split in the circuits about that and i think that the d c circuit for example has required doesn't require as much specificity the seventh in the six circuits do and the board didn't discuss that in this case because what it actually found was that there just wasn't good enough notice about anything taxes or wages and remember the taxes are going to continue to come out there's no restoration remedy in that case and that's a legal requirement the board is not taking away bargain i have one more minute bargaining demand there is no requirement that there actually be a bargaining demand in a perfectly clear successor situation banknote then the second circuit is extremely clear about this fall river the court discusses the burns successorship situation says the triggering fact for the bargaining obligation and burns was the composition of the successor's workforce once you know that you're hiring all those employees you've got a bargaining obligation there's no question in fall river situ the reason you go through substantial and representative complement and substantial continuity of operations is because in fall river you don't know how many employees are going to hire until later and then there's a question about the union's majority in a burns ordinary successor perfectly clear successor situation there is no question that the unit has a majority so the union does not have to demand bargaining there for questions thank rebuttal the l j held specifically based on credited evidence creative vision resources was an ordinary successor because it communicated to its intent to pay an hourly rate in overtime a critical issue and that's what unique about this case most cases it come up from the n l r b the respondent has lost before the l j he's lost three zero or she has lost three zero before the board and so they come to you with a very dirty record in that sense in this case they l j were ruling crit creative visions favor the panel split with a very strong dissent that against the finding that we met the perfectly clear that create a vision that perfectly clear exception and really what what's the import of the decision here it's a very simple of decision it's that creative vision had an obligation and a duty to bargain before it ever knew it was going to be able to go into business that's what that that's what they're arguing creative vision had a duty to bargain before that it ever knew it would be able to go into business let me say one thing too about flag versus  in and this is a serious credibility resolution alvin richard was was was found to be a meticulous sincere detail oriented and his testimony was credited that when he passed out the applications he told everyone what the terms and conditions work including the pay off that had to include fled who he had listed and he also testified in this was credited that flag came back to him and asked him several times to confirm what the terms and conditions were flag it's also credited that flag city had a bad memory now how did this case and i believe it's the steel case in two thousand and seven versus in a large b it held that a credibility resolution cannot be upheld where it's self contradictory and so it is impossible for flag to be credited with with having said that he never knew what the terms were ret richards never told him what the terms were and at the same time credit richards with meticulous attention to detail insincerity telling everybody what the terms and conditions were  and let's see one other thing to the council argued that you should accept the u s chamber of commerce's brief on this case in which it sets forth you know the may be argument that creative vision did not argue that in its brief in that that's absolutely wrong he looked on page twenty nine in play just forty five forty six of our brief we actually did make that argument and the  chamber of commerce did a very excellent argument in showing how this ambiguous concept of intent to retain has no authority supporting it when compared to the requirement of a substantial and representative complement being hired in the workforce because if the intent was really what think trigger was look at the chart in the spruce up case that would push you all the way back into early february because in spruce up the successor there clearly had an intent from the very beginning so you see it's an amorphous standard and it gets very tough for a company like creative vision according to the n l r b on june first on june first alvin richards should have realized that he needed to pick up the phone and call the union and say else i don't have enough i got a bargain he'd have to go out the next morning and tell all the hoppers that i'm sorry what you've heard about the new terms and conditions is not correct i've got a bargain obligation i won't be able to go into business until i finish these negotiations with the union it's not a there'd be some new laws being made here which may be appropriate it may be consistent i'm going to respond to that i think the new law is that giving to employees the obligation to be at least relying on employees to spread the word future employees spread the word about the new condition is not supported by current case there's no case load one way or the other but there is case law when you have to take a step back because we know that there is case law that would employ or speaks to one half of the workforce or almost one half it's imputed to the rest of the workforce now if that's true in one context what isn't true in this particular context the other thing too is that there were three decisions that came down last summer you reference one of them judge king the allowed in case the us the creative vision case is the next of solutions case that was originally lodged in this court but because of the fight between the circuits it's now out in in the ninth circuit all three of these are setting new boundaries and new guidance on the successorship in the perfectly clear doctrine and the rb has never liked the burns case if you go back before burns was the law an employer had to accept the existing terms and conditions of employment that where they are burns allowed the employer