concerning union representation is a very significant thing it's somewhat different than a political election but there are some similarities that the yes the consequences however can be long term long term for the employer for the employees and for and for the union that's why are the board has created a pretty good process for regulating how these elections are conducted and essential to that process is that the elections him selves are to be conducted under certain laboratory conditions it's actually a much higher standard then our political process and from one who speaks for management i think it works most of the time it didn't in this case and it didn't for three specific reasons first the n l r b in gauged in a decision that casts the employer in a very negative light which had some of facts and i will get to in a second but the decision is an indefensible decision that the board itself claimed that the employer threatened employees where there is no factual support for the conclusion that the facts that are undisputed here in the record are a threat secondly there is no legal support for arguments of counsel in a context of a hearing which have some merit for being the basis of an unfair labor practice complaint because the constitution gives the employer the right to petition the government in manners they're relevant to the proceedings in on issues that are have substance and in fact in this case the employer prevailed on yet a very simple statement one which in and of itself carries i think no threatening consequences the board decided to  the union issued father an unfair labor practice the investigation of this simple matter was conducted during the entire election campaign process and the result which was an issue it's of a complaint the industrial equivalent of an indictment was handed down right before the voters were to vote and the employer contends there was no justifiable basis for the board's actions that substantively factually and legally the board should not have done what it did that the board violated the constitutional rights of the employer and violated the act unless it is a threat and i submit that there is no reasonable interpretation of the single statement which is on the transcript of the representation case could be conceivably believed to be a threat and the comment with my objecting to that concluding with saying that and that not protected and only that's protected that one of them and well the employees are protected in many ways by the national labor relations act unless there is a protection of the act however the employees do not have the protection of that what's the consequence one of the main that the employees are unprotected for not having it's not clear under the law whether those employees are protected or not in doing what was done it's clear the union should not have done it if the union dead what the what we're going to do it i mean the statements made by a person  or a person of authority says the complaining that they are showed up here to testify you didn't tell your company about it and i think that that i would tend to agree with you that that would have not had any context specific legal protection which i think exists here who are dealing with a statement made on the record in a proceeding unrelated to a communication with employ in fact there's no evidence in the record that any employee even heard of any employees were in the quote i met maybe i misunderstood i thought they were in the courtroom and the comment related the fact that they were they were scheduled to be working and stand  working without notice the employer they were in the in the in the hearing room and in the comment was i thought referring to the fact well thank goodness they are missing their jobs and that's not protected i'm not sure your honor that it is in the record established that there were employees in the here and they were in the some parts of the proceedings it also is unclear and i think it's incumbent upon the board to at least  can sanction these employees punish the employees for not showing up at work because it's not protected if they came in to testify no no no not at all that the import of the statement was your you have done things subpoena process and you've disrupted the operation of the employers facility because we boys are not on the job because it goes or don't want the job and we don't think that's protected therefore it's not a legitimate reason for us not being able to produce additional witnesses that was the total context of the discussion it was at amongst the lawyers it was an employee who was not even present testify now there may have been people in the hearing and i can't say for sure that they were at that time because they were sequestered at one point but even if they work there is nothing  that the statement was directed to them or was rationally understood by them to have been threatening they all testify every witness who the union had brought to the hearing testified there's no evidence in their testimony of any intimidation there's no testimony that there was an intimidation but more importantly states freely testified and they testified providing information that was helpful to the union in many respects during the process i just don't believe that the after the fact construct here is a fair statement of us threat because there was no threatening tent or  we didn't know we were going to have this disruptive process that occur the day before the hearing and in the context of a nursing home you can't just not have employees you have to have the employees there to tend to the residents it's mandated by state regulations now granted you can have people called in no question that you can't but you really kind of need to know because your pool is a very limited except for the unions representative insisting that the employer should have taken steps to ensure that there was coverage even though we didn't know that there was not going to be a participation by the workers or the effect if we want to draw a modern day comparison to the political process is not unlike someone considering indicting one of the candidates for a prolonged period of time and then all of a sudden the day before the election indicting and the public they cast against and add to that that there's no legitimate basis whatsoever for easy indictment charge the first amendment does not in the supreme court has clearly said that in the old johnson's and b e n k that the threats in those cases were litigation serious costs that were to intimidate in fact intended to intimidate the union but those were not sufficient because the process was protected the petitioning process was protected from the board the able to act and the board should have conducted a hearing perhaps the board should have conducted a hearing on the objections at which any factual disputes should have been allowed to be presented regarding the the  the the effect that it had on the election there was ample i understand it your your course your answering a question you want to cover some other points in your pressuring at a time i don't know whether you i do and i do want to make a point discretion is that once the initial determination is correctly made whether it's unions petition which did not happen in this case or by the board actually finding an appropriate unit that is precondition for the imposition of the overwhelming community of interest dander to be applied to any other context that you have to have that determination to open the gate to say that the board has provided the safeguard to ensure that the statue does not violated by the union's choice of the unit components being the sole and exclusive basis for the decision haven't ever been a number of decisions in which the you know p m s have been excluded yes and no yes i have her sure hope they have but they the the problem here is not that there can be excluded  the board said they were excluded under the overwhelming community of interest standard that's what the regional director says and her decision are three fifty four that that if you she may please the court i'm heather beard and i represent the national labor relations board i'm going to start by discussing the board within its discretion overruling the center's election objection and why that was proper and reasonable and then i'll discuss the unit determination so to begin the we we agree that the board has a pretty good process here and that's exactly what the board followed so in to address my opposing counsel statement with regard to the threat i want to make something very clear the threat in that threat or not during the course of the representation hearing was an unfair late resulted in an unfair labor practice charge that the union had every right to follow to file and that the region had every right to investigate that particular unfair labor practice determination had an investigation which went forward and the issue before this court however is whether anything that the region did in that investigation in issuance of complaint tended to destroy to let the laboratory conditions of the election and what is it we have here is a failure of proof on the part of the employer to demonstrate as the employer must a proffer in order to get an evidentiary hearing that specific event specific people engaged in specific actions that would tend to overthrow this election which is extremely important and has long lasting ramifications indeed the employees who voted for the union in this matter have waited now for two years while we go through these proceedings so in terms of whether or not what was said by the hearing was a threat the issue is whether there was a legitimate basis to investigate that's what the region did the region investigated whether or not in the standard for a threat in the national labor relations board is whether objective only reasonable employee would understand that to be to be a threatening behavior in any defense that mr mine may have to such an unfair labor practice such as it was my first amendment right to say whatever i want to represent ation hearing any of that those defenses are offenses he was in did and was free to raise in the unfair labor practice proceeding but that does not mean in this circuit or anywhere else that he is relieved of his burden of demonstrating any effect on opening original brief which is that just investigating an unfair labor practice wall or in the pre election period in another case there's nothing wrong inherently with that and indeed that happens all the time a union would be able to tell the board that it wasn't doing its job if it didn't investigate of an unfair labor practice so all we have going on is the region investigating a case and we've got no facts no specific events that have been proffered to the to the region or to the board about what was wrong with this investigative process indeed the complaint which was which was issued and then mailed through standard regional processes to the employer was mailed the day before the election however unlike the the analogy of the indictment in the political world that my opponent raises we would not have this broadcast on television and indeed there's no allegation other than this was mailed to mr mine there's no allegation that any of the employees new day before the election that this occurred and so because what we're talking about is an unfair labor practice investigation and then for purposes of overturning the will of the voters we did the employer alleged pacific event specific people that would give the employer hearing and so that brings me to what is the standard in this circuit we stand by our brief that the golden age abuse of discretion standard is the first panel decision in this court to address that issue it has not been overturned and in fact golden age was decided under a version of rule that did not explicitly have the phrase regional directors discretion in it but nonetheless i'm standing up here for the board saying that under either standard indeed in hollywood the court says the considerable weight must be given by the court to whether or not the regional director found substantial material issues for for there to be a hearing and under either standard those material issues are absolutely not here and therefore we believe that the region was absolutely correct in looking at the evidence submitted by the employer in determining it wasn't sufficient to warrant that there was any tendency to have any effect on the election and i'd also like to address judge own question about the employees and whether or not they were in the hearing room again this goes to whether or not it was a threat whether or not employees were there would be something that the region wouldn't you would investigate in its questioning and i'd just like to point out that throughout the course of this case mr mike has never alleged that there weren't employees in the courtroom at that time in fact questions from the region when they did their investigation assumed and said for example and mr might never answered that they were not in the room they asked was your statement a threat made to the employees present at the representation hearing and how did the employees president the hear representation hearing affect the employer's work production that day so what this also demonstrates is what the region was doing is being very the region was trying to figure out could these employees who had been sitting here being subpoenaed under the board's regular process seized could they be in violation of the g of the act did they disrupt production so it was what happened was an investigation like any other that the region conducts in the region conducted the investigation issued the complaint and the employees voted for the union in so far as that election objection is concerned we believe that the board acted well within its discretion and was you have other questions on that i'd like to move to the unit determination portion ok so all i'd like to say with regard to the unit determination is that the regional director here in the board after her fall and specialty health care which is recently been formed by this circuit in macy's followed it to a t when performing what needs to happen with these cases which is determine an appropriate unit not the most appropriate unit not the best unit an appropriate unit and what the regional director did here is look at all of the parts all of the the individual classifications in the petition for unit and determined as specialty calls for whether or not they were readily identifiable as a group shared community of interest and she determined that actually the union's petition for you did not was not readily identifiable group she determined an appropriate unit would be all of the service and maintenance employees not including the license practical nurses and then proceeded to examine the employer's evidence because the employer was the party who was seeking to to include those employees and determined on the record the employer didn't meet the burden and all of this in her decision and as was shown in our brief was done pursuant to the law and came up with an appropriate unit that was consistent not only with the evidence in this case but with precedent that the board has also has also ruled on before and so we think that because the unit determination was one that was an appropriate unit and because the board reasonably overruled the election objection that this court should uphold the election which resulted in the employees voting for the union good morning me please the court my name is george davies and i represent the retail wholesale department store union to intervene or in this case excuse me in the brief time i have i want to make several i think overarching points with respect to this case first all of the four employees that were subpoenaed were subpoenaed pursuant to the analog bs rules and regulations there's no evidence absolutely none in the record that the employers produced that the union somehow staged some form of work stoppage by using these subpoenas to cause an understaffing of the facility that was somehow violate section eighty the there's simply no evidence there's no evidence and finally and i think for most there's no evidence that the union and region fifteen in the n l r b engage in some of the ferris conspiracy to deny the employer its first minute rights or interfere with the election in favor of the union noninterference not restraint not coercion and non reprise is also well settled that the threat of reprisal or discipline directed toward an employee for complying with the subpoena constitutes an unfair labor practice now the counsel for the employer is fully aware of this well settled law and he was fully aware that the witnesses were tending pursuit  complying with a valid validly issued subpoena in these circumstances can hardly be characterized as a violation of section eighty the act in the employer produces no cases that such is the case and by making the statement and it is a threat that a reasonable person can interpret as a threat the employer counsel seems to fail to recognize when the employers were so why make this statement in the presence of subpoenaed employees and their union representative unless it was intended to excuse me to be perceived as a threat for participating in the  is processes and to supporting the union essentially what the employer saying here is that by complying with a valid valid police issued government subpoena at the request of the union in other words assisting or supporting the union you could be disciplined this this is it was perceived as a threat by the employees and accordingly the union charges not baseless it had merit that because the complaint issued on twelve thirty one december thirty one i mean years eve that the timing somehow interfered with the election but there's a glaring admission in its brief it's opening previous page forty seven where says the complaint could have issued the day after the election without affecting the election meaning the complaint could have issued on january fourth without affecting the election this undercuts the employer's entire theory that the charge and the investigation somehow interfered with the election or spoil the laboratory conditions prior to the january third election and the employer provides no evidence of how a complaint issued on new year's eve and received on january second instead of being issued on january fourth effected the outcome of the election as mr baird said there's no evidence that any employees knew about the time as to the unit determination issue your honors the board clearly could have done it correctly we're not challenging specialty or macy's or law and we're just saying that in order to do it correctly you can't cases is rests upon there can be many appropriate units there has to be an establishment of one as your threshold determination and then you argue exclusion or inclusion using the overwhelming community of interest standards once you have that baseline secondly the charge itself and the investigation did directly interfere with the employer's pre election ability to communicate with the employees it took a huge area out of discussion for fear of that there would be additional charges the employer could not even explain what had occurred here couldn't even undercut the accusations like the union was saying how was the accusation was or evidence it was it was communicated to the employees that there was a complaint before the election i think so but how could there not have been the charges certainly were pending and there were three amended charges during the course of the investigation and i'm saying that the employer could not react to the substantive complaints against it for fear another charge would be filed against it right at the eve of the election there is no tactical substantive reason for doing that at all there's no advantage to the employer to the union to the board why didn't they wait until after the election i submit after that we wouldn't be here we wouldn't be here on that argument yes that's correct but what with cal and one with something butters the problem with the other aspect of the imposition is upon the employers free speech rights during the campaign intimidated in the entire pre election campaign from even discussing the merits of the issue because it resulted in the mayor saying maybe this is not protected head had resulted in a run for labor practice charge now an employer the health care setting i think has the right to say you know if you don't comply with a jig you run the risk of some dangerous things and unions have historically failed to do it correctly because it's complicated and you don't want to get involved in taking the advice of a labor organization to get a result it's not a very good result and there are cases where employees have lost their jobs because they followed the unions advice concerning not complying with the requirements of the gee now that's not what we're perhaps if those are the arguments the board wants to make you know us make we should have a hearing we should hear a hearing on the objections were all these fact issues could have been addressed where we could have had the the entire context explored but no the board concluded that this was an unfair labor practice and there's no i the employee the hearing because they claimed it did the whole issue was the employer's fall it's only the employer stall if you conclude that the employer did something wrong and