in midwest war on the board made it made a ruling with respect to do is check off which was also a violation of the rights midwest due process rights the one in only theory tr midwest one was whether or not midwest violated k y c t v meaning there was an expired contract with midwest required to continue do shut off until a new contract was ruled invalid by the supreme court in the not panning because the board had an invalid court that came to pass and the board ruled after briefing was completed that it was no longer rely upon that u k y c because they couldn't because they didn't rule about it so that point the board came up with an alternative theory of mid term modification understand what this document is wasn't do you understand it to be an independent agreement doesn't have anything to do with your points about the process reserving all of those any kind of agreement or an july august of two thousand and eight the board maintains that mr brown's hours were reduced in june july and august because of a threat t v in may it was one of his soon it was his second highest monthly year so the board is saying he discriminated against mr brown because he threatened to follow the grievance on the nine yet after that date he worked i believe it was nine more days or seven more days until sixty one hours more than half of the hours he worked in the middle east is ours are down as usual in august the record evidence shows that what if you if you look into the gate world records it's june july and august the busiest time of year summer is generally the busiest time of year we see generally a person with or something unusual about that year or was it twelve there was an economic downturn in that year there was part of  employees of his equivalent seniority in position on the employment lists were also had hours reduced or his hours similar to what everyone else was getting that summer based upon the record evidence yes because if you if you look at if you look at the records in june july and august of the of the ninety one days there was there was only fourteen days where someone potentially mr brown was hired of the remaining days midwest only hired people from the skilled list in midwest only hire the top person from new york and about how many people your heart i'm talking about how many hours of the people that were working work in those mines that in the  people working those hours i mean are you saying we should have hired more people that are quite well my question is so your argument is the sign you're standing yet his hours right yes you just can't just leave that is ours were down in june july and august but it was a rough year economically you didn't have as much work as you normally would that's why you weren't hiring very far down into the list and so what i'm asking is well there were other people that were working in june july and august that were above him on the list or equivalent to his position on this or on the skilled list what how were they working when they are also working in similar though you know they would have been working because they're working to get there or they're being hired to get up there is the work that needs to be done they're getting hired to get it done so if if i'm hiring people from the skills list and one person from the regular list they're working the amount of hours necessary to get that work done if they need to hire more people on last issue in midwest one that i want to discuss was this issue of latches a l j christening emitted in his decision that midwest was prejudiced because it had lost two key witness that occurred in november when the board argue that i once again discriminated against mr brown and vendor based on grievances that he filed and mr stener was not available to mr brown was on light duty and mr brown argued that he worked they before he was not hired the next day and it was discriminatory that he wasn't hired and the board argued that midwest reason was protect the border argue that terry leach instructed mr brown that he couldn't hire him because he talked to mr brown's doctor and the doctor said yes injury was more and then the board uses that animists finding in two other cases so again whether the board the board there is my understanding that there is no absolute bar in matches the board is not not come out and said we w that brown was discriminately treated because he was fired on a first offense as opposed to others who were given warnings for transfer equipment damage and that's simply not accurate one other person  have the rule says we don't have to prove whether or not the damage was intentional or not and i'm just asking the questions on this case going to be in a substantial question about whether mr brown was responsible and i also say it was the it actually showed a flaw in the machinery first there was no evidence whatsoever by the board that said he was pressured into into putting anything as he asked to put a statement a report that had never been asked before you disagree with the board's mind you know i'm disagreeing with the fact that someone from management instructed midwest who scuse me instructed mr jones the maintenance person to instruct the rican technician to put that in there  i'm also if you begin the rico technician said he didn't put anything in there that was a true so yes at his initial report there was nothing that he saw that l saying at the time to the company not testimony that happens years later but at the time the company made us decision or it could have made its decision had it done a reasonable investigation as mr brown because if you do anything did i don't know two to three weeks maybe is the company in the habit of firing people or it has a final report on accident the company believed to have had more so much more someone denies responsibility it was asking what the company's practice and policy in this area lots of people deny responsibility that they've done something wrong mr leach is an experience and more driver certified by the her department of transportation i'm asking i can ask you the facts i asked  rico to do or so it would not be accused of discriminating against mr graham the company usually does its own investigation being busy saving lives investigation for makes disciplinary decisions does it usually complete transport cargo store cargo in the workhouse at the time of the ten k hearing the l a looking one hundred eighty two was attempting to force teamsters off of robbery of together they were seeking to take over the work on the dry side at the time of the hearing we committed the notice and the entire facility was up for grabs as far as who does what work and the board kept things as they were as far as the dry side in the west side but did say for items that are material that is to be stored on the weapon on the dry side the teamsters are permitted to enter the wet side and transport the cargo back because they have done this work in the past they've done this work in the past two different ways the transfer truck and view fo were is to the teamsters perform the work previously done by the trucking company as says nothing about transporting through before it also doesn't say that they can transport it with  so in that instance midwest is doing precisely what the board or users should be doing and we still violated the act so it's got to be one of it's got to be one thing or the other and i am in my rebuttal time so if there are no more questions i will reserve the remaining time and if you want to raise anything about the last thing i would love to but i'm running very little in time that will give you some time for about ok mr russell are not qualified student they took the test they failed the test and per once the company has knowledge that someone is not capable  seated at counsel table are heather beard and rebecca johnston who will argue respectively that west to invade us three and here to address midwest one i understand that the midwest council forfeited any challenge to four of the violations by failing to argue them and in the opening brief and so what we're left with are two discrimination findings and one finding of an bargaining agreement it wasn't good it wasn't it wasn't drys is an amendment to the master agreement that with the current language will be very pleased with this language and sounds to me like an amendment of that this this agreement also had a separate durational clause and it says it says until i really local nine hundred eighty two in midwest terminals ratify a new global agreement so that is that this agreement is responding in the sense that it is not subject to the durational provision in the master remit the master agreement says until we get a new bargaining agreement the current bargaining agreement language  no new successor agreement that had been executed so by by the plain terms of this demo you made us was obligated to continue checking off dues and it very simply cease doing that so the violation itself is quite bargain agreement expires right and so by pleading that theory that's very different from saying whatever that legal world is there's a whole other contract obligation they're required to you to depart from that existing bethlehem's field president and keep you alone had to keep things in dues you had agreed to keep paying dues even after the collective bargaining agreement expires that they had no notice that they were the memorandum of understanding was issued but that was the board's understand reading of this document or any opportunity that for the refusal to bargain and the basis for that for that allegation it also mentions a memorandum of understanding no the complete didn't have to mention the evidence in particular and at the hearing forth the scope of the duty to bargain the complaint didn't say anything about section eighteen yet section eight d is in play regardless of whether you have a unilateral change or a contract modification and so by your  suggested standard that the complaint wouldn't be complete even as to the unilateral chain but in this case if i may return to the usual notice midwest had not only the terms of the complete but they also had a statement from counsel i'll be at the very beginning of the hearing that midwest these check off at a time when it was contractually bound as well as legally bound to continue checking off dues and then there was also the fact that this this and the u k into evidence over distinctly obligated them to keep paying his check it was it was it was litigated in a slightly different way it did enter into the litigation your honor and i'll explain how midwest defended against the unilateral change allegation by arguing that the union has waived its great to bargaining over this issue and it connected in responding to that argument the general counsel did did refer to this two thousand and twelve and were you and the judge in counsel you know amended the complaint and said contract modification is another theory but it was it was presented at the hearing in connection with the issue of waiver and the judge said something to the effect that the violation that occurred here was failure to continue the check or provision of an expired collective bargaining agreement correct and the memo you was not  board makes a finding about the meaning of the memorandum of understanding in between those two events between the l j and the were what kind of pleadings that were filed by the general understanding was a separate collective bargaining agreement and that continued regardless of the expiration of the other collective bargain with respect to do struggle i don't i well again your honor that the general counsel on their stages did didn't mention this idea that there was a contractual commitment and it was in connection with the issue of waive somewhat but it was presented i mean i don't think the board is saying as counsel counsel has mentioned that this fully unfairly litigated standards the board is not saying that this was fully unfairly litigated it doesn't have to the board thinks that this was encompassed within the complaint and it was clearly presented both at the hearing and the hearing could not argue that the general counsel did argue as i mentioned in the position statement right and i would i would just call the court's attention once again to the broader racks which is the supreme court case that the board cited which does say that the what the court is not required to hold to place the consequences of its own settled partially deferred to arbitration so that one charge is kind of a microcosm of the issue that there are on each of these charges there are multiple allegations that have to be investigated in process and we agreed to that they agreed to those who said they were responsible but now it sounds like you're saying they agreed to these different process really aspects of the case i see i do see your point that yes i mean midwest was well aware of certain reasons why the litigation went on as it did and it participated participated in that wing aspects of the charges and so the board doesn't believe that this is a situation where the general counsel slumbered on his right which kind of the classic situation latches should apply the other and mr sale at mr jones was already gone from the company by the time the charge involving energy damage is easy to find somebody in the first year eighteen months some of his four years later great that is that is that is well taken your honor but the other issue is that i don't know mr jones actually did not deny in a can he filed a contemporaneous statement in this case and it's in the record and i don't question i don't have the representation but he did file a response to a grievance that was filed over his unlawful statement and in that in that response he didn't deny that he made the statement he said it may have been misunderstood but really there's no just he was deceased at the time of the hearing but midway suggest that he could have testified to hiring procedure is a person that west already had the testimony of one witness and a lot of documentation on that morning i'm heather beard and we're counsel in the case we call midwest to this is a case where the pork nontraditional unfair labor practices following midwest one in midwest to the board found midwest made three hundred awful unilateral changes to the employee's terms and conditions of employment without bargaining and discriminated against two active union employees otis ground and dave hubbard for filing grievances and charges with the board my opponent began with  and under great line here we have an enormous amount of animals that the general counsel demonstrated which mostly is not challenged by midwest showing that the charges mr brown filed and the grievances that he filed were motivating factor in the discharge and that animus consists of first the timing that this occurred that this was seized upon that this incident was seized upon six weeks after he testified in midwest one it was also just a couple months after he was one of the leaders of a work stoppage about the company's unilateral changes so we have that we also have the dave hubbard which is important although our midwest is waived any challenge to mr hubbard because the violations with regard to mr hubbard that took place right before mr brown was terminated involve statements made to mr hubbard that paperwork not going to be filled out by the company for him because of the fact that he had piled born charges and grievances and then he was denied paperwork they otherwise would have been paid under the contract and under past practice so when you look at that you look at the timing and you look at the the work stoppage comment that mr leach made to one of the two work stoppages in the summer of two thousand and thirteen that was that was led by brown the comment that and this far off your ass with the finger  animists is shown by the general counsel that that there is a motivating factor in the action taken against mr brown then the company has the burden of showing it would have taken the same exact action discharge mr brown for the cow sucky incident had there not been any of his protected activity and this is where it is key that the board down the burden isn't met and so we'll start with a few points my my opponent may first of all he was talking about j victorian in saying that this was a comparable discharge a kid is the only one where we have someone who is damaged equipment that has has been terminated for it there's numerous examples in the record of multiple money and that has been spent i'm problems j victorian there was no question there who was responsible and it said in the discharge notice this is very key that it would do the progressive discipline the two other instances that he had had all those which that this is so bad because you also have these other two instances back in the day in my opponent has pointed out something i believe that is incorrect which is that the board didn't consider two other instances of discipline and mr brown it absolutely did it's on page twenty nine happened to the three cows saki and because of that initial incident report by ground that is why he was turning never never that he had had all sorts of other instances and therefore he's a pro going to jail in torrance of the board's position is that when we're here in the land of the employer has to prove it would have done this anyway it hasn't met its burden with the comparatives that are in the record nor with j victorian v the other factor that i think is important to point out is this issue about anyway and you have an employee not alleging mr jones is management employee who has talked to mr leach before saying put something in the report about operator error and mr grout says twenty three years he's never been asked to do that they have failed to meet and i think another piece that's important is this investigation your honor to discuss this a bit with my posing counsel i guess there were twelve other reports after the first record and those reports took place throughout this process whereby each stage he's saying don't terminate meat don't terminate me what the company has failed to do to two to explain is why as there's other reports the crow are those not consider they're not talking to growing throughout the entirety and i believe it is in our grief at one of the grievance meetings mr brown position is he wants you to be reinstated in the company says mr leach says that's not going to happen so the board's position is that given that the company has not met its burden here of showing that had mr brown not engaged in a plethora of protected activity and grievances had that they would have taken the and moving them to the dry side and when the gravel men of this violation is that work of a bonding either trucks either forklift loading the aluminum has been taken away from the  employees there is a bargaining obligation that the employer has so there's no doubt that there has been work taken away from iowa and that that is a mandatory subject of bargaining that's never going to have a history the whole history was before practice which took into account that testimony and everything that happened in the ten k and when awarding it with past practice as the board found here and the company was able to put on its witnesses and show absolutely no prejudice from not being able to include that ten k hearing here in this hearing there were a multitude of witnesses that were able to say teenagers were not taking their forklifts and driving them over to the web site prior to this what happened in the summer of two thousand and thirteen th do believe that the there's other evidence that the past practice was not the reason why they kept on reading the forecasts we sent over a billion mr leach himself even said the reason and that's whether to work stoppages were so heated he said the ten k allows us to do this to take us to do this so it's not a situation where we had years and years and years of the same thing having happened on the forklift having the news from the teamsters i think that we've established there was a past practice there was some evidence that maybe from two thousand and five to two thousand and six on occasion a board elected maybe come from the teamsters side but that's all and that's not sufficient to demonstrate that there had been a past practice and that that also informed the judge's  evidentiary finding which was which was well taken that there was no need for there to be hearsay testimony from a teamsters individual mr j who had recently just become a teamster steward to say that others had told him that in the past there had been a fortnight's coming over so that there was nothing to indicate any sort of prejudice from his testimony being taken given that there was not evidence that this little period was one to constitute a  significantly on the wet side which is where the eye only folks would unload it and in november two thousand and thirteen it's undisputed they started storing the calcium on the dry side and that took again the work away is that because there was a legal way to continue training consistent with osha regulations that's what they're supposed to negotiate because sometimes it reads like and sounds like in the briefing that they had to whatever what was required they still had to negotiate right so the farmer of our it's the former now when there was no i'm not we didn't rely on an osha regulations here what we were doing is taking a look at what the employer was arguing is to say you didn't have to bargain oversee time and they said it's because in two thousand and ten in two thousand and eleven the port authority said you can't have operators of cranes who haven't had the certification and the violation isn't it is sort of what you outlined with regard to osha we there's nothing in what the port authority said or in any regulation that was an issue here that would prevent training someone to sit up in there and be trained while the crane was being operated and so because nothing legally precluded them from doing it there was a bargaining obligation when they decided to discontinue the conditions not that regardless of what the port authority or osha regulations might require you still have to negotiate right now i would say you're not doing something that is if i get this case as complicated but if you had a situation where congress passes a law that's has nobody in the side of the brain who's not what i would say if it's an illegal subject of bargaining of course they wouldn't have to bargain but to the extent that there could be discussions since their past practice had always been something different there may have been this isn't that case but there may have been still time's up thank you midwest added two individuals to its skilled best of employees which determine how much they work and in doing so i have a good section eighty five three and one of the act the board findings in this regard are employees the board of i the record evidence looked at the documentary evidence which is all the order of paul in the record and found that in fact he only had three qualifications listed on the orders of call from midwest meeting a new argument just know that  in order to be a crane operator you necessarily have to also be qualified as a signal person does not make this argument in its briefing and the judge found otherwise  indicated in our brief we spent four pages outlining all the times mr russell whined under oath that no i've never written a brief for i spent four pages outlining when is lying under oath admittedly lying under oath and the o j saying he's not trustworthy but we have  new collective bargaining agreement been reached between the employer and you we do not we have not yet and do not have a new group in the section eight d even if you go under a mid term of occasion theory section eight deed is not an agreement with out clear diversion of language doesn't live in perpetuity so that the situation now is that it's a continuation of the terms of the old on on november nineteenth we're still operating under old bethlehem steel so we don't have to bargain over that if that makes a crack that that's a different question from whether you had complied with  amendment to the contract and the contract expired it was termin