brief it's a part parcel policy of the national labor relations act that states not necessarily get involved in labor disputes and it's a very important policy and dictated by the united states from what doubt we can read the directors decision and determine that under illinois law he impact of a labor dispute at and did against congress hotel s and something that just has cleared it out it nice from head office cases how can the department sherman that three weeks after over half our workforce and its service oriented hotel that is heavily dependent upon the employee services provide services mindset of an employee now lives whose whose burden is it to make sure that the right person is the answering these questions is it the state of illinois or the department of employment security making sure please the directness of the person with the right now the answer these questions or is he in an employer the business that says hey that you're responsible for answering these questions and i understand the jury answers are going to be binding and i think it would be evident that anybody in for the gets a letter sent off t lay person very technical legal questions and after they have a person provided for the first time detail pursuant to that question that person ends up basically being disregarded with regards to the answers that he's playing and that segues right into the other critical issue which is what obligation did the hotel have to document its what might be described as its newly asserted position or newly that there were documents that were a bill that would document or reinforce what he beat the labor unions holding assertion that they had caused a four hundred thousand dollars loss to the because we don't think it's appropriate with the union using it and the wound through the state mechanisms to be able to get documents they may not otherwise be able to get with regard to let it let me let me ask you this regarding those documents do you think those documents would have helped the union if in fact they demonstrated that the hotel was suffering financially by virtue of the strike do you think the union would have been able to use those documents to strengthen its case or do you think that would have been consistent with the position that you're taking now that your business operations and not resume to normal and only if the documents had an effect demonstrated that you had in fact resume normal operation union they were paraded to the public and say look what they're strike is very effective because what we've done to the hotel and that's why we have to be careful when responding to a state agency with regard to very technical questions and questions that goes to the heart of our business we have to be those concerns that you just express the question is could you have moved a little bit closer towards the request of the department to perhaps present a summary or perhaps present not data or something that would substantiate your position financially and yet not are you know minimize the amount of disclosure that you would otherwise make right like a number of managers who w incredible statement to you recognize the fact that he's at the hotel he lives there twenty four hours there so at any point time especially at the infancy of the strike he could be called upon it any number of times during the day to say look you're technically on call twenty four hours in response to your question of whether or not we could have reached documentation with regard to the number our work on the people being worked and produced additional witness in that regard at some point some of that information does become he would have it really doesn't have a  substantial effect on the evidence that was presented in our point of contention is that we produced two of the top managers with the hotel who certainly had personal knowledge of what was and what not was not done in especially at the inn for see the strike not going to have the only department of employment security was meant to assess how well the business was doing in serving its gas i thought do you think it had anything to do with the unemployment compensation applications that protest with the department in the first place i mean that kicked off all of these inquiries so xenakis at that point not notice it was the one who had initiated the protest if i recall correctly procedurally what what happened was the first three weeks old unemployment benefits were denied and then the department came out with a ruling indicating from the third week on they would be old woman at that moment we protested that firing in that regard yes well at that point you're  notice that this is what is decide this is the critical issue in this case whether the hotel has resumed substantially normal operations or i would agree i would agree and one of the one of them regarding your putting his credibility before the director and to the extent that the director is the finder of fact that the be any credibility assessment by the director is something we must get substantial  sun that it wasn't until there were there was plenty of after somewhat but finding is really before us two things really finding it i think is before you his eye would be agrees to stop the second director's opinion that is the one where and we don't have it but it's certainly part of the record regarding me the hearing officers findings but they aren't we don't get deference to those if the director of self rejected them but it's certainly subject to review in part of that review process which i would suggest requires us to at least consider what the officer was before the witnesses judging credibility especially when you have a finder of fact you have no observation of a witness and when you're making credibility issues like that i think from the review process a meaningful process we have to at least give give consideration to the person that was there listening to the other which would you would you accept a would you accept the sort of surface characterization that what the director had before  you know a paper case from the hearing officer and then he had testimony from the i'm in from the claims adjuster and then testimony from the hearing officer and then it fell to the director of moves  process and when you're going to take it completely opposite you of the trier of fact heard the evidence well and i think we have to carefully analyze those reasons and i do point them out my grief i don't want to rehash those issues but one of the reasons that was given was the fact that absolute example of the happy sample that pleasant present and that is that you had guests were leaving because the services that were being provided by the hotel were less than what they expected and investors the reason for that are you can make a strong presumption in that regard based on the circumstantial evidence that we were able to keep pace at that point and if that's what why they're leaving that's certainly a fact that again favors the hotel with regard to returning to substantially normal operations if you're under still might  my name is elizabeth reynolds i represent unite here local one on behalf of the claimants and before i get to the merits i would like to address briefly the burden of proof issue i assume the court has seen the motion to supplement the a finding three weeks after when your own have it you have it is that you present it suggested that the hotel was suffering greatly under the labor dispute that it had lost according to your you were trying to discourage as many people that you good from staying at the hotel did you find it a little odd that a decision could be made that three weeks after the strike starts that the hotel was running back to normal and now you're on i don't decided with respect to whether a work stoppage exists there are not any cases that i'm aware of where the court has looked to whether there was picketing outside whether there was a lawsuit business that just hasn't been a factor that's considered the question is what's going on inside the plants inside the facility and are they doing are they getting the work done so to some extent you're saying the hotel responded very well to the laborers it was still operating in the same way and then they were operating three weeks into the strike which was to use temporary agencies to cover the vast majority of the work plus employees who had crossed the picket line from our strikers and only a minimal amount was being done by anybody else the fact that they continued to operate in that manner for over a year i think shows that it was a sustainable method of operation for them which is really the question that travis looks at is this did they come up with a method where they could continue to operate on a long term basis but to get back to your honor's original question about is it a little strange that the hotel could be found to be a normal operations if in fact  union had taken away substantial business this is a hotel the hotel business fluctuates a great deal whether or not there's a strike for seasonal reasons for  to changes in the economy and whether there are conventions in town or not it's very common for a hotel to be at eighty percent occupancy one month and at twenty percent occupancy the next month and you know you that's that's really why the department of emp purity needed documents to really evidence to show the real impact as opposed to normal fluctuations of well i would contend that even if they had shown that there was a massive bookings there was truly related to the strike i still really not believe that that would meet the test of travis back to the extent that the that the department considered that to be potentially relevant then they certainly would need documentation and more than just somebodies general statement list i completely disagree with that your honor i did for one thing at the hotel deny i asked for a protective order here which they certainly could have done if they were concerned about the union misusing any facts of a come into their hands there was actually not to go into too much detail on this but there was an n l r b proceeding that was winding up between the parties that was passed in the process of being settled at the time of the evidentiary hearing which provided that the hotel would have to turn over these very documents once some confidentiality  agreement was signed it hadn't been signed yet back the parties were close to that and so the hotel could have said we'd like its continuance until we get our confidentiality agreement signed or they could have said we need a protective order they never did that  represented at the hearing officer found dead substantially normal operations had not been resumed to any time and when it went up to the director the director founded operation that morning at any time i thought he said that it had been  nine of the record when you go up just above that to paragraph three of the conclusion the director's representative found that the claimants unemployment continues to be due to a stoppage of work which exists because of a labor dispute so i think all the parties understanding has always been there at the at her mention of the july fifteenth date there was simply because that was when the record evidence and do but if i don't believe it was it intended as a finding of eligibility beginning on that date all right we will supplement or we will file that transcript that i referred to but even based on the materials that are already in the record i would submit that it it would be inappropriate and unfairly prejudicial to the claimants for the court to make any decision here based on placing the burden of proof on the claimants he ca's the congress hotel at the outset of the eviden falls on the business i don't know there's a real well we would certainly submit that they their admissions if nothing else place the burden on them at that point but they also accepted the burden at the hearing and had and that can be shown from their opening statement in which they talked about what they were going to establish and had he been aware that burden of proof was going to be placed on us we would have included of litigated the hearing very differently but you don't have  true we do have subpoena rights here on earth but however we you know strategically if you're the party that does not bear that burden you approach the hearing in a very different manner and that's not something that could be remedied at this point after six years have passed  has already set out the tatts here which is whether the employer had returned to substantially more on the late operations and the court in travis basically to find out is whether the work is getting done by methods that are sustainable in the long run that's my the quotation takes up over twenty percent of the supreme court's opinion so that gives some sense of how important it was to their analysis and they quoted judge shitters article for the proposition that quote decisions should turn on whether the work can continue permanently on the new basis unquote and that's what occurred here a year later at the time when the hearing was going on they were still doing the work the exact same way they had been doing it on july fifth and the facts in this case are strikingly different from travis which is why under the travis is touched the director beachley correctly reached a different conclusion in travis there were seven hundred salaried employees who left their jobs and took over doing exclusively production work in this case there were no salaried employees who left their jobs in travis several of the employees facilities were out of operation here no part of the facility was out of operation in travis work was deferred in five departments here there's no evidence that work was deferred in travis construction work was halted there's no evidence of working halted here in travis the production was done by a skeleton force working out normal hours and doing abnormal functions but here the hotel brought in as many temporary employees as it needed each day based on occupancy and the vast majority of the work was being done by those temp employees and by some strikers who had crossed over the picket line that so those people were doing exactly what they were hired to do the temps and the cross overs there was no abnormal function and no showing that they were working abnormal hours traviss the case that should hold your attention it sets up the standard essentially under section six zero four the question is is there a labor dispute and of course there is one here is the road stoppage that's a question of whether there's a causal connection between the work stoppage makes clear that it's not necessary for the work stoppage or ways to affect output although if output is affected then that can be a consideration in fact travis explains that there's all sorts of factual considerations which need to be made in deciding this case or cases like this under section six zero four that brings me to what i think is the proper standard of review here because under the standard of review that i would suggest the porch apply a clearly erroneous standard the director has fair amount of discretion because the agency has a fair amount of expertise in deciding kinds of questions in this case the relevant decision that your honor pointed out is the decision of the supplemental decision of the director that decision is a fairly lengthy one it offer seven different observations about the case and comes to the conclusion that the work here was being done the test under travis is not whether all the work is being done or whether the employer's operations are back to normal the test suggests it was he was they were given a fair amount of opportunities for explain that in fact investigator gave them at least two and i believe the time of the phone explaining it as well as the hearing they backed greatly away from that that the director didn't lose sight of the fact that that they were trying to say that they didn't really mean that every the fact one hundred percent this case is allowed for an employer to say well the striking players work is being done but other work in our facility is not the that's but they didn't make that showing either they didn't show that the managers that were doing the extra work that was being done at a substantial effect their operations unlike in travis's my co counsel just explained where there was lots of information that the court realized was there about what wasn't being done for seven hundred workers pulled off their desks and sent into the production facility the court in travis pointed out all the areas in which which the evidence showed work was not being done and shipping of  oil was not being done in the same way that had been prior to the strike there was research development that was postponed the same is true with the union starched case which i think is also one point these cases win against the employees but they had different facts where there was the sort of evidence of work stoppage by management i won't break carefully through this record looking for evidence of what worked didn't get done at the hotel and the only thing i could find was that the menu got changed in the restaurant a little bit and  they were working the two people who testified just by their work a slightly longer hours maybe twelve hours in the beginning your honour's talked about what is the relevant timeframe here the directors decision says that as of july fifth two thousand and three things were back to substantially something more compelling to the director if it had been fleshed out more with details but they they didn't provide the details they testified that they observed was less weddings that is as my co counsel points out the wedding evidence is necessarily going to fluctuate from season to season also the wedding bookings there was evidence that they take place about a year in advance typically so the people who were booking their weddings certainly didn't have any inkling of a labor dispute that was going to happen in the summer of two thousand and three i don't think it's necessarily a homerun even if work at the hotel had never gotten back substantially on the director disagreement that sort of brings up a point i'd like to make quickly i think a lot of the hotels arguments are about what the directors representative said those findings are not legally significant into decatur's decision as that was the first decision agency level and that's the thing i think that that would resolve the question if someone didn't appeal he appealed the ultimate decision record if i may make a start i was just going to say we're guarding the burden of appeal the protest that was filed by congresses that have anything to say in one form a sub on the burden of proof and given that it is the hotel at that point is challenging the claim security hater's decision i think at that point the question is really burden of proof one side point which really doesn't have anything to do with how the ports of resolve the case but i think i should bring it up because i think it's better our record here is a mess there are volumes of material here summonses that were sent to one hundred eighty five was unsure of who should be sued i think he's going to say that he was fine but we had a real mess here with you know week that the department had seventeen employee claims i think it should have been seventeen claims and maybe the union representing the seventeen and that should be the world that comes to this court of the history of review not one hundred eighty five people i think they had all pay appearance fees it was about ten i know you're asking us to make sure that we make that clear i clarify that your honor i don't think it's fair to take a position but but i think that that's only those are the case this is the first time i believe since the supreme court has held about association of standing that unions can appear for their employees like this so there needs to be a sort of channeling as to what procedures are thank you very much in my opinion completely ignores the evidence we put in there was an rebut it night we had new workers coming in on a constant basis we had to change we were subject to all but there was there was also testimony that there was always a large amount of turnover capable of three in that we have managers who training entirely new a lot of workers who are transit to say that our menus are the only things that change we have mass protests that occur on a regular basis in front of the hotel we have a union organizer that is devoted twenty percent our time towards basically interfering with the kai ryssdal tells operations we had an impromptu nation of our health insurance and given just two weeks in order to proceed to get replacement health insurance to say that the only thing that was affected with  change in menu and managers working longer hours to completely ignore what the evidence presented at this hearing and that's our issue with regard to this case cost for the union indicated that we could traverse case that picketing would doesn't matter i suggest new union staircase picking what else you know an observation of picked up by the court we normally don't have picked that are standing in front of our business saying stay away from the hotel it not only isn't important back in deciding this case it's a denigrate just what it is that was affecting our business to a to a simple summary of whack a menu and with it dish working hours just doesn't do justice to the wreck north in my opinion accurate description  counsel for the hope for the you know also point out that the hotel business fluctuates and i would suggest that there's certainly nothing in this record indicate that this is a normal fluctuation i think everybody could agree that with regard to an abrupt case that i've seen where a mere three weeks after a strike is begin a strike this large and this grand in detail where the department has ever said employer you're back to normal operations just three weeks all the cases and  evidentiary hearing and to the extent that that record is filed and there is a dispute on that issue by both sides or all three sides are welcome are welcome to file short memorandums  that the earliest that the department had concluded there i think was six months that means that the employer had been found to not have been engaged in a substantial normal operation for six months and it wasn't until after the six month period that somebody had said hey this is going on long enough your return back to normal and that's when you