l first let me say this is not a case about a company aggressively fighting union representation which many of the cases that the n l r b cites and many other cases this court reviews on this topic point which is administrative straight of late managed by jag healthcare recognize the s c a union for its hourly employees in two thousand and twelve and has a labor contract in place at this time this is rather a case about a small nursing home in a small town gallion ohio about to close and lay off its employees and transfer all of its residents to facilities further from home and about how jag health care a small regional nursing home chain within a few short days save the residents from moving and many of the jobs pushed through a distressed sale very very quickly this is a case about a small business being paralyzed severely in that purely as a matter of law for two or three in knock us comments made by one of its owners jim griffiths during a couple of meetings in a single rushed day when it with little warning was asked was asked to take over this operation the nursing home ale j and the and or b respectfully misapplied cases which involve much larger companies and much longer timelines and completely ignored the context and the more subtle legal reasoning of the cases cites in applying this very form formal conclusory an extremely legal istic approach the and or be held to griffis few innocuous comments there are only three were serious violations on the national labor relations act and that caused all the other violations in this case to occur it won the a three to five by way sions as stated in our reply brief the really and really the entire decision of the ministry of law judge here no time to hatch a discriminatory scheme there was no time to go through employee records and figure out who was pro union or anything else and nor was there and it really any evidence of that rather jag responded as it always did  figured out it could do the sale and brought and hired who they felt were the best employees from the current facility and brought in most of mostly its own employees from other facilities what jim gryphus said and i think it's important to note this statement and this is the one statement that is mainly relied upon by the l j in the n r b for the following decisions he called the people together the day before you quire the first time he had ever seen the employees the first time he had made a long visit to the facility and he said to them he gathered the end of the village care of the former nursing homes sold employees together and he said it's up to you whether you want to union or not there are people in my family that are parts of unions my father was a policeman he was before he owned a nursing home he was in the union we don't have any unions in any of our buildings currently and we think you won't need one once you look at our benefits that we have and get to know us but initially if you feel you want to union it's it's your you that's what he said that's the coercive comment the only other thing he said the union representative from the essay you approached him that day and said are you going to recognise the union and he said as of now no thats it citation and the record will show that he said that this applies to everybody this isn't just union organizers but if they show up and think that he'll jay credits that by the way in the in the in the small print of the decision that they have a policy against anybody so he did make that one comment but it wasn't heard by any bar unit members and it was never was applied anyway there was no no police were ever called and it would be the same thing if they had solicitations from a life insurance company well  yes but i think a union organizer did show up and was escorted off the premises is that right not by police no he was the the mr griffiths so that when the union organizer showed up t that we don't recognize the union right now so you're not you know you would not you should you should not be on the property but there was no you know calling the police or anything dramatic designed to well wasn't there something in the record that when court right asked if gryphus would recognize an existing immunity said he would not stating that none of these facilities were unionized and that village care also would not be you know he said yes that's that's essentially what he said to to the union organizer he didn't actually say he and the subsequent actions never indicated that he said they would never recognize the union he was talking in the context of that moment they would  the comments were we were told we will not recognize the union you see jag has an operating philosophy obviously they didn't have a contract with the and that's not disputed and all their facility their facilities are not union however what what  on and it's it's in the the n r b makes a big deal that the exception didn't numerate this but it's all through the brief and the exception does deal with this general jag when they acquire a facility typically and it's very much like the case the one of the cases in the record like dr pepper or particularly i direct the court to the essential services which is a case involving a janitorial f firm that typically a player to companies and they would bring in their own people what jag historically what jag does is acquire small nursing homes and struggling that are usually struggling in small towns and the way how do they sow how do they make these places operates enough so that least break even and stay in business they cross train a lot of employees that's that they cross train far more than most nursing homes do and what they have historically done when they have acquired a facility is they'll try to hire the best people they can find here they didn't have time to do a very to do that very in very much depth but then they'll bring in lots of people from their other nursing homes to staff it because those people are cross trained and over within a few weeks they'll have a representative complement and then within another couple months hopefully things are working out well and in fact hear gallion point is is surviving but the mr griffiths knew that was what was going to  going to happen and he reasonably believed based on objective facts that they would not be required to recognize the union at that time it didn't mean he would never recognize the union in fact they did recognize you know a later date and in fact they do have a collective  was the court has to keep in mind and i think this is where the administrative law judge in the in or be kind of did did not apply the reasoning properly and why their decision isn't supported by substantial evidence and as wrong as mar you have to look at the context if you look at the essential services case where you look at the doctor there's a case we cite dr pepper which is which some of the facts are different but involved again a very compressed timeline where you are you've only got a few days and you're struggling to a company is struggling just to operate it open they can't do not have time to go through detail personnel files they don't the the rb sites that we didn't couldn't cases where the companies didn't conduct interviews of all the employees but those are situations where the companies had months to acquire the felt seems a little it seems that it was a ten fast that they call natalie archer and i asked her about a comment she had allegedly made you know i think things were admittedly chaotic but this is a health care facility and a nursing home and the and or b has always apply different standards to health care facilities were patient care is  patient care areas and in a small nursing home almost every areas except for employment and offices are patient care is and i think the bottom line is that the supervisors that point were concerned that with all the chaos in the situation that negative attitudes or comments made in front of residents or near residents could be just disquieting and so they made the decisions were those always the right decisions if they had had more time to consider them i don't know the court will have to decide that the n r b makes a big point in its brief that there was not it you know we did a detailed investigation as you just point out your honor that you know it seems a little it seems a little quick and it was a little quick but at this time the staffing was shifting around all the time melt rock wasn't somebody new in the game wasn't she been there no iraq had been there correct but the overall the overall management and supervision operation the employees were coming in rapidly and the situation if she had been there for a while she must have been familiar with natalie archer i mean why at this point would you decide to terminate somebody over having made a comment that has something to do with the union that's that's what makes it look you know at least suspicious well with even if even if the wrong decision was made by miss archer as to miss archer that does not mean judge and the and or b essentially with archer and the other two discharges atkinson the one went back and looked at not just that decision but said well but there is all this discriminatory animists here by gryphus and by mr griffith and by jag and that is what cause that's what i think caused these to be taken in our view out of context the bottom line is that but for the and or b in the l j finding the comment to miss the comments to the employees about it's up to you whether you have a union and the comments in the court right that we're not going to have a unit at least not at the beginning without that i don't think the then i would be would have found archer afghans or no one's not be someone who would just decide out of thin air to terminate so there is no will to respect your honor there's no finding to that effect there's the there's basically the finding was that there were that the that the reasons given by the company probably were true but in view of the alleged discriminatory animists before so in a way it's perhaps drawing the same inference who are in view of the inference the so called discriminatory animists before those decisions even though if we admit that they were done in a hard and quick manner because things were running very quickly and things were not organized but they without again without crediting the anim so called enemas by mr griffith in his comments to the employees and to court right i don't think you get there i don't i don't think you get time in front you know you're you're telling me there was chaos but on the thirtieth  june the place was operating with staff and nurses and on july the first it was still operating all the residents were there the staff was there the nurses were there i mean chaos on july third as of the first day they had sixteen additional employees and this who was the management was uncertain who was in charge of what again jag had five days to set up this operation good morning your honor may it please the court david side of the labor board the board found the jack to meet in numerous on for labor practices through the application of uncontested credibility based factual determination to  i would like to start out by addressing why the board very reasonably found the child was a success or employer with an obligation to recognize and bargain with the union as a life first and then why the board further found that chad lost the ability to set initial terms and conditions of employment as of that day because in the process of a lawsuit compas some of the other unfair labor practices found by the board very simply the principles of success were not in dispute on july first jag began operation with the same business all the supervisors rolled right over and it had the same residents and patients that it was taking care of the board further reason that we found that as of that day fifteen of the twenty three employees serving in unit positions had previously employees of course raise for the first time in a reply brief is not part would be for the court but more importantly having never been raised to the board this court has no jurisdiction to consider it so the board very reasonably found that chad was a successor employer and the argument it was one unit employee short of having an obligation to serve or precluded from setting the initial terms of munitions of employment and notwithstanding the fact that every single supervisor and this is a finding  board every single supervisor just rolled right over that it came one employee short it just kind of happened now i suspect an initial trier of fact if this court were sitting in that position would be a little skeptical of  that claim but of course this court is not sitting as a trier of fact there are board findings there are credibility determinations and here the board very recently found for two very specific and different reasons that jag did not have the ability to set initial terms in which their employment first the statement that was made by jags c e o and president on the day before and this was as the board found a very affirmative statement that griffis advised employees that jag other nursing homes were you not were not unionized is that page eight hundred seventy five of the board's decision and that as of july first gallion point conducted any of its hiring that statement along with the fact that jack ended up actually hiring within to fill unit positions a majority of employees had been paid work for the predecessor positions an employer loses the ability to your honor that's not sufficient because the employees have a union and unless jack conduct its hiring in a nondiscriminatory way and were a majority of the had not worked for the predecessor of that union simply rolls over so went once jack's president tells employees who will not be in and in fact jag acted on it it conducted tiring that at least in its view it thought it would not have the obligation to recognize and bargain simply telling employees that in the future you can start from scratch well there's no reason to have to start from scratch if jack conducts its hiring and nondiscriminatory way excuse me unless jack conducted its hiring and nondiscriminatory way and the people working in unit positions a majority not come from the predecessor that's the only basis or possibility which jag would not at least an initial obligation that initial terms but that it would still have to recognize and bargain with the union and so that's why that statement is insufficient and the second reason why the board very independently found that jack had an obligation to continue to recognize and bargain with the union was its discriminatory hiring practices and very simply this whole argument now about jag not having enough time not only is in new york going to raise for the first time before this court but this was not very complicated jag had a listing the union employees knew how many unit members there were and it whether they had five days or five months it's not all that complicated to know and in fact is the board found jack actually mark how many union employees it was hiring or how many from the unit it was hiring and once it got to what it would be a number that would be one below what would require it to bargain recognize  union it stop hiring it's not very complicated and i would also note that with respect to the affirmative defenses that jack can raise with respect to its discriminatory hiring these are all way before the court because before the board agrees a number of arguments such as that it didn't actually hire enough enough to have hired all twenty two or the subsequent several months that some of them weren't qualified and if some of them hadn't filed applications all of those were rejected by the board m credibility grounds and jabbing its opening grief did not dispute any of those board findings and sue independently those are the two reasons why jag not only was a successor employer with an obligation to recognize and bargain with the union her defense is an attempt to justify the discharge is very simply that is all way before this court because before the board has set forth in the board's opening brief jacket only challenge the  board's credibility determinations with respect to determining defenses and in its opening brief to this court there is no credibility based challenge so the board's affirmative defense is essentially stand unrefuted and unless this court has any questions in asking this court to enforce the board's order i would very specially simply state this is not a close case there were clear and for earlier practices committed just out of curiosity all of what we're talking about happened in twenty ten that corrector and the union was recognized in twenty thirteen what precipitated the been issued at some point during the litigation process decides to recognize that you need to cut off some logical ity wondered if you knew it and i can't have the answer whether you know or go away and i could simply suggest that in most cases it's usually an employer making a decision that it wants to cut off liability stems lie in this case largely from the alleges fermentations so that would not that it had nothing do with cutting off liability there was a showing of interest and the jag became convinced the employees desired the union  did not do anything to cut off liability unfortunately from our perspective as far as the in our being you know it's briefing today again goes to great lengths to argue that things have been waived i did without when two minutes i don't have time to go do it but i would urge the court to look at the exceptions that were filed in this case and also look at jags brief before the end or be these arguments have all been addressed the issues of who was hired and how they were hired and how they vote was counted in fact specifically this issue that the mr side mentions that of the fifteen that were hired the village care bar collective bargaining agreement was kind of unusual because you are only a member of the union if you were a full time employee you were not a member of the union if you were a part time employee and the fifteen hired there was no evidence produced by the general council that of those fifteen that any of them were union members i'm sure some of them were and probably a few were not and that argument was made previously in the exceptions and it's in the brief prior so it was not it was not waived obviously in briefing cases you make decisions on what you emphasize and what you don't emphasize essential services and dr pepper and some of the other cases involve other chaotic situations and rapid hiring thank you ok thank you mr stone and mr side for your arguments today the case will be submitted