b or whether they're ambiguous and show that the employees of those four boys did not support union as i said before the company what do you mean by did not support the union i think we need to be able more precise in that th well your money says it's ambiguous when you do or not right right i agree that there are positions that they're a big deal and if it's ambiguous where they do or not then it's reasonable for the war which is our standard to of support is acceptable well how can that be consistent with your description of leavitt's that is if levitt stands for the proposition that the burden is on you to prove by a preponderance of the evidence that own brief says it could reasonably read either way right well my my pretty says that any that there are big us and if something is ambiguous then by definition it's up to both more than one line and if it's susceptible to more than one reading isn't it reasonable for the board to say you haven't met sure burden of showing that it's more likely than not that it's your meaning well i think that's the ultimate question here have we proved what the more reasonable i'm asking is just on the face of the statements to be getting just read them by themselves and my position is that the more reasonable interpretation of those letters because i believe they are given to us is that they show that the employees did not  but that's not our standard our standard isn't what's the more reasonable it's whether the board is reasonable in concluding what's the more recent right it's a double actually i think in the word one case the board specifically said that the standard is which is the more reason that's true that's the worst one case but that's not that is not a decision of this court we're talking about the standard of review by a court of an agency not the standard of review by an agency of what happens over the agency right the standard of review for this is agency is whether or not the evidence or the decision that the board made it is supported by the evidence whether the in reasonable about the board's construction of the four well statements the first thing is i'm reasonable is it said that those that an employee who wants to resign from the union can only have one possible reason for doing that footnote just says because the statements submitted did not show that they no longer wanted the union to represent them for the purpose of collecting parking and they had up the entire ministry of law judge decision in doing so and her decision well they say they explain what they greet with they say we agree with the judge that the respondent violate section a because the statement submitted by the employees did not show the pain the longer wanting him to represent right they agree with the judge and the judge said that the reason why she concluded that this statements don't support show a lack of support is that they they can mean only her words mean only that the employees wanted to stop paying dues that's what the jay help the board said right well no i disagree i think the board adopted they specifically expressly adopted the administrative law judge's reasoning for not we have a union shop here california is a is not a right to work state where those kinds of agreements are unlawful certain states have passed laws that say it's unlawful for for employers and unions to agree that employees have to become members of their union not in california so in california given this collective bargaining agreement which is a matter of evidence in this case the employees if they had intended merely to stop paying can i just add a little bit of nuance here there's at least three supreme court cases that say regardless of whether the union security agreement says what you just said that in fact and then ploy does not have to be a member of a union even in a kick in as you know right to work in the non right to work state and even when there's a human security agreement right right they just have to pay to you that's right and in fact  employee has a right to be or remain a nonmember right that's true so failure of their duty to ever present ation if they don't that's right do you know what they got back warnings in this case i have no idea there's no evidence that they did and no evidence that they didn't know so why shouldn't we assume that the normal rule which is that employees are advised that they do not have to be members of unions even in cases of union security agreements and will not be fired simply for saying i don't want to be a member of the union as long as they pay that but what the supreme court has described in fact and general motors as the fiscal core right only the elements necessary to continue collective bargaining grievance procedures etc i think the union and the general counsel have put on that evidence of that warning if they want to do it the trial they did while i understand why they have to that's the background understanding of everybody who engages in labor law i don't understand how that that could be it's you who are making an argument here to the contrary and in fact b o j does say citing general motors membership is not required that's true so you're the fact that they said when they say i do not want to be a member of the union the board has many cases where they've said that that does not mean that they don't want representation on that they don't not want to pay union dues and that's the reason why she rejected them as being letters that showing their lack of support we are saying that is an unreasonable and illogical conclusion to reach under the circumstances where you have a union shop because they would be in effect firing themselves and i don't think that it's reason they're not in effect firing themselves with the you agree that they're not in effect harming themselves because most by saying they don't want to be a member of the union that is interpret in the board's decision differently the a l j in on the same page in which she says what you say he also says there may be many reasons why somebody doesn't want to be a member of the union all of which is you if you read that footnote are tied to the dues not reasons why they may not want to be union members as we pointed out in our reply brief there are lots of cases showing that employers may not want to be union members for different reasons for instance the cooper case where employees said that the seventh day adventist employees said that they it would violate their tenets of their religion if we just we agree with you and that what happens the sheets remained for the board to look at it again and well no i don't think it does because that's why we offer the evidence and why the ministry of law judge her credit allowed us to present employee testimony so that we wouldn't have to remain and to put on further evidence the evidence there it's a question of whether it was admissible and relevant or not if it's admissible and there's no question of it will today's decision says that that all of the employees testified that they didn't want to be represented by the union and that's why they were there seems like a different question so imagine we were to agree with you at the footnote in that it's wrong to fall back on your post withdraw all evidence argument right well no because the very good what were the our first argument is that we were offering their testimony to explain their letters if they're in big us if they're a big us we should be given an opportunity under the proof standard established in leavitt's to try and prove what the meet the true meaning of those letters was like in highland hospital who said you can't do the board was reasonable in saying you can't do that and i actually highland hospital if you read it purpose of the petition was merely to get a decertification vote not to actually get rid of the union and that evidence was admitted and the court had no problem with that it affirmed the an alarm views decision in that regard distinction you're making now in our opinion today one of the yes i do believe you did you first you found that there was that evidence that the board relied on to find that there was not a loss of lack of s companies to unilaterally withdraw before they have solid evidence and then mining for evidence afterwards and that's exactly what linux trying to avoid well i don't think that really is what love us was trying to avoid i think let us was trying to get away from this is that even your reading wouldn't that be the natural result would happen it would be an invitation to companies to bet right they don't have solid evidence at the time they unilaterally withdraw and then they go around to find evidence i think uneducated frankly workforce mostly spanish speakers very few little english skills all of them testified five them testified they had very small little english skills at all and you know they said they didn't wri even speak english over can't write english and had to be using somebody else that strikes me as exactly the kind of thing that leavitt's was intended to stop well i think is not right no i don't agree i think a lot of us was the purpose of leavitt's was a say will put the employer to representation election like that they don't just go you know hoping to find more evidence when the trial develops actually love us does not say that you don't it never says that we hope they don't go and try and develop more evidence of facts at the time of withdrawal of course that was dependent upon the evidence that the employer had at that time but the but the actual last majority support defense or ryan says it is not based on that timing and that evidence which is learned afterwards which the employer learns of afterwards could be used at trial to show that there was an actual loss of majority support it's a higher standard far as a higher standard of proof but nonetheless a standard of proof that the employer should be given the opportunity  think and say instead that withdraw of recognition should only be withdrawn if there's actually a loss of majority support in the employer should be allowed to prove that issue at trial they've said it many times in the you say that we approve the use of the after choir evidence for one purpose of force it's clear that we decided we agreed with the board that they couldn't the board in the aged care refused to credit the testimony for good reason he had no real info knowledge of that corroboration evidence on the date with through recognition so that part is clear you say there's another part of the opinion where we have proved using some after acquired testimony not just describe the facts but approved it your honor i apologize i may have misspoken you describe the facts on which the board based its decision and of held the because we're a panel of the corps and while you may disagree and maybe even we disagree we have no power to overturn a previous panel i don't think you have to reach that issue in this case i think this case turns on the question of ambiguity and the question of whether or not the employee should be allowed to explain the ambiguity not after party evidence the member that evidence in highland hospital that was rejected was evidence of new employees  exactly in highland i think the difference between highland and here is that we didn't bring any new employees forward didn't bring anything new about other than the letters is the only thing that we were lined up we didn't bring any other new evidence about that the call the evidence that we tried to present was to explain what the letters meant and so that's why i say this case depends on the question of ambiguity if there's an ambiguity about what those letters meant then we should have been given an opportunity to explain that and that isn't the type of after acquired evidence that the court dealt with in the highland case and so i don't think you have to reach that issue i think you could decide this case in keeping with highlights because the rule that the employer allowed the employees to testify about what they meant we had it done one other thing in the face of these letters you could have gone back to the people who wrote the letter and had them people were clear right well no that employers can't go to their employees and ask them what the meaning of those letters that would be a violation of eighty one of the act but you could have asked for a representational action we kind of that well we could have asked for representation election but we were given the option of doing this the board doesn't say you me please the court my name is valerie collins and i represent the national labor relations board in order for the company to her but some soon that the union maintain the support of the majority of the bargain union employee it has to show that the board was incorrect on two crucial points first the company has to show that the board was wrong when it held when it found the statements that are at issue here expressed a desire to end union membership not union representation for the purposes of collective bargaining into the company has to show that the board was wrong when it found that union shop or even see shop provisions like the one we have here do not compel pursue in order to lawfully withdraw all recognition of an incumbent union employers could wind up with probably recognition and prove as an affirmative defense that they had a good faith doubt that the union no longer have the support of the majority of the union members in the bargaining unit or to the employer could have withdrawn withdrawn recognition and then proven as an affirmative defense that it had actual knowledge that the union no longer have the support of the majority method and want to discourage employers to do what was done here in unilaterally withdraw recognition and here the company has just simply feel to make that showing under love it is now the statements at issue here clearly difference you see that the statements into two categories four of which she says these are unimpeded us these are clear and they stated desire to terminate union membership and then the other four she says you know i don't think i need to more reasonable interpretation in order to get to the argument that the more reasonable representation urt the more sees me the more reasonable interpretation must mean that they don't want the union you have to look at couple of them expressed please state i don't want to be a union member but a new board has held for more than forty years that you don't get a statement that states that you don't want to be a union member doesn't need that you don't like necessarily you don't know one course concern here is if there are all of these different interpretations or maybe they didn't that maybe they didn't mean that i think that that just underscores the fact that the employer here the company shouldn't have withdrawn recognition but let's talk about the a if they don't pay union dues here they lose their job right why was that a reasonable interpretation i think it is a reasonable interpretation because you know jay look at this it said well what they're really saying here is i want to lose my job consonants and mentioned earlier on here in these types of provisions under these union shop or even shop provisions where you have in the contract that union membership is a condition of employment which i think is what you're referring to the employer is arguing that because you have such a provision here the only reasonable meaning of these statements is that the employees wanted to no longer be represented and that's simply not true well that the employer is affirmative defense is going to hinge upon the employee's answer and you also have in this situation here very leading questioning i mean the counsel at the hearing asked you know what did you mean when you when you  pressure on the employee in that circumstance to go along with his employer makes that unreliable evidence right absolutely it's not something you're making up today and saying that they're not being truthful now you're relying on a long line of an r that employers would be withdrawing recognition on the evidence before the employer and that's it peeps seven twenty six now evidence before an employer i mean that is clearly is trying to encourage employers and that's enough to kind of not do what was done here and here i would argue that this would have been a great situation to petition the court for an r m election and love it was trying to employee free choice absolutely absolutely i mean board takes the position that employees should be the ones i mean the union is there to represent the employees so employees aren't going to be the preferred group of people to essentially hire and fire their unions and when you have an employer that comes then and says well you know i'm going to hire and fire your union for you essentially by unilaterally abruptly coming off that bargaining hold but in other circumstances the same word i don't think there's any magic language but it has to be an objective leap clear on the face of the language so for example in whirlwind the petition that the employer ha representation but those treatments indicate we have to predict or make a judgement or employer make a judgement what those indicators representation is are more likely than not that they indicate a desire to continue to be represented or more but as i understood the wall coming here and it was no there is not a clear statement will she take with the employee set and you make the judgement as an employer what's more likely than not the employer's desire as to representation  wasn't before that the company when they withdrew recognition and i think it's the court identified him it kind of opened up and door for companies to it was almost turn the standard not only the actual here or you would have to actually be the case of the employees not some for here you can do it without a good faith belief without any belief in the after the fact martial law evidence to support that withdrawal and in that way that's what i meant in terms of trans transferring the standard into a prelim not only a pre lovett's but a more lenient standard that would be possible if you if you agree with the company's in what under your view would what is the question the company is supposed to ask when they receive statements like this i think the company has to ask itself does this is this objective evidence reasonable reading of these letters with regard to the to the issue of representation it is it is what is the secret of the question yet and to ask in here the statements that you have here you have statements that say i don't want to be a union member and it's simply not the most reasonable interpretation of a statement that's weighing on it that's very clear on its face but oh what would be what would be another purpose for an employee writing to the employer to say i don't want to be a union member  i don't know i mean in the record is silent as to why all the clubs position is they looked at that and they reasonably thought that meant these employees do not want the union to represent them that's that's that's a reasonable interpretation but maybe not the only one but that's a reasonable interpretation right that is the company's argument that it has to be the more reasonable just what is the more reason the more than reasonable is that is what the employees they did nothing no longer want to why would they be communicating that been transmitted into a clear statement test because you know that if you did say give that answer judge kavanaugh you would be running up against alan tom back right that's correct right so instead what you're saying as i understand it is that the board has the board has long said that if you just say don't want to be a member we are going to interpret the more reasonable reading of that including in the union security clause cases that that is  reasonable reason is that right that doesn't necessarily mean that they don't support the union or it doesn't certainly mean that they don't support unit but they don't ever say given what can i mean notion that employees could but by writing the employer and announcing he or she no longer wants to be part of the union could be saying something else besides i don't want to represent her and her thinking i agree about there could be various reasons for that's why we should be given an opportunity to prove what they actually met with something if i guess if we disagreed with you only after acquired evidence if all we were to look at is the statements that were supplied what are we to make it their way to require to have it i think you should ask yourself in common parlance because that's really all the what's our experience in common parlance if you want out in the street and ask people what does it mean a different point says he doesn't want to be a member of a union i would think that ninety nine percent of them would say it's because the poor he doesn't support the end i think that's the commonsense  result that you would reach that any person on the street would tell you i think that's a much more reasonable interpretation than saying oh they didn't want to pay that little tiny bit of their union dues that they could get out of under the employers going to the supreme court at least three times on this questions must be a very important question to employers and employees it is an important question and it was something that employers and employees had to go to the supreme court three times to force unions to do because the unions don't want to employ is to know that and that's the point of those cases that that may be but it's certainly doesn't suggest that that little bit doesn't make any difference and suggests that that little bit does make quite a lot of difference doesn't it that's the it's a good if somebody wants to resign from the union it's because they don't support again and so the case to you in our letter brief the supplemental letter brief because there's a case just now in the last month where the board has said that evidence of union membership is not evidence of support for a union so the board recognizes in that context in the context of a of an initial certification or a you know an agreement to recognize a union is it as a nine a representative that the fact that employees have signed a membership card doesn't mean they support the union so membership and support are not coterminous they don't mean the exact same thing in this case the i think it's more reasonable to assume that if the board recognizes that membership in the union doesn't mean that you support them that wanting to not be a member of the union is more likely to mean that you don't support union of just sounds like the board thinks that the membership question is in big us and since the burden is on you that you don't satisfy it just by knowing that what you pointed out in highlands your honor is that the after court evidence real issue really goes to developing new evidence so that it's not looked at harlem's again while we are talking here there were thirty five nurses only five of them the board prevented thirty five from testifying only five and we affirm that only five of them could be distinguished on the ground that you're making the other thirty all signed the petition then wanted to explain why and the board said they couldn't testify either you're right i agree i was assuming some of the hard question for out at least for me is not the first one because i think if things are ambiguous then it goes by the burden of proof our question is what to do by the after acquired evidence whether you're permitted to then explain