agents use of a three sided cardboard shield in place of a voting booth that we believe is required by the board's rules and regulations what's wrong with that nobody can see what's going on and i don't understand your problem and your honor the cardboard shield at the table at which it was placed was approximately six feet from where the union observer was positioned sitting at a table your honor that's about four feet closer they than i am to the court standing here at this lectern that hand when you go anyway the monitors from the poll watchers are sitting right outside of your yes you are you can see what you're voting on well your honor in this case the evidence shows that they could see the upper torso of the employer they could see the arms the choices on the left side is yes on the right side is no and your honor we would submit that if someone is staring at someone within a six feet proximity and watching their body movement which is totally exposed from the mid torso including arms that it is possible to discern whether someone is and is moving to the right or the left of the ballot even if you can't see the ballot and there were eight employees who so testified see the hand so when you just did that i looked and i couldn't see in your upper arm i couldn't see any movement i could only see a movement in your hand so unless i can see your hand i don't know where you're moving your i mean we're not talking about over here versus over here they're next to each other so i gif i saw your hand i would know which side of the paper you're on maybe but if i can't see your hand your arm isn't moving wildly like this you're people left handed some people are oh this is true and i think reasonable minds can differ as to how much a given voter how much their body language would telegraph how they will minds here are the and the people we have to give deference to i mean other words we are we aren't is an appellate court going to say here and talk about sly gradations in your hand and what science people can use and that's a fact or a fact finding why would we find as a matter of wrong that when your arm is shielded the upper torso nonetheless gives away so much that it invalidates an election because that's essentially what you're asking us to rule as your honor if you look at the boers decisions  columbine in royal lumber the facts are not dissimilar from what we have here in columbine the observer's review looked at the voters from their baptist they couldn't see that the table they couldn't see how they were actually marking the ballot but they could see the movements of their arms from the backs of the board said that's not sufficiently secret all of this your honor stemmed from the fact of the board failed to follow its own regulations and used a voting booth which is regulations require and if you look at the board's decision and physicians and surgeons which is relied upon by the council or the general council there's a description of what that voting booth looks like it's referred to as the board's standard metal booth which is a standalone cubicle with curtains it was referred to by several witnesses as a hit list i believe that the union took the position it was a i'm sorry going to work to it and if it's union witnesses or a company like company witnesses your honor i believe it was referred to by the union as a list that they were using to keep track of who they had visited who they had not visited but there's no question there's numerous witnesses testified that they were told and that the facility was told by employees who were supporting the union by this implant committee that when the came in if you didn't support the union you were going to lose your job in the board is found that those threats are anything affidavits or anything for me anybody demonstrating even strongly intimating actual misconduct i mean you make an argument that really pretty speculative all things considered you say what could have happened with some i might have seen it serve it or anything anybody says actually voting booth you got to have but the case also dealt with the company making allegations of being improprieties even to neck aids and then they end up saying the employer having failed to present evidence that voters ballots choices were seen by others either inside or outside the confines of the voting booth in his case we adopt rex so even spotting you what you're saying about what the voting booth supposed to be like they still end up saying that in the absence of the employer showing some is conduct you still don't win so what's your strongest case for the scenario you have where you don't point to what's the strongest case you have where there's no evidence it's there or maybe there's this voting group i mean it makes the point you make because otherwise we can see you know just not seen beyond the speculation of it you know what more mores your honor we believe that the court the board's decision of physicians and surgeons was designed to essentially apply a band aid to what the real issue is and that is the board's deviation from its use of a standard metal voting booth and of physicians and services the board held that when the standard board issued voting booths and use those terms voting both even though that in physicians it clearly wasn't and both is used we will set a higher bar as to what you have to show to overturn election but for that erroneous standard involving a piece of cardboard that has three sides to it the board would have been compelled to follow its president and columbine cable company imperial reading ratan and well warmer or you unless it is this kind of voting booth is that what you're looking for from us to say ave issue lection isn't conducted with you know exact one kind of voting  by calling a three sided piece of carpet a voting booth and then because it's a quote sanction board voting both ipso facto unless you actually see someone mark their ballot it's improper i think in this case also your honor the fact that the board agent didn't properly assemble the shield that was used also affected the results of the election in terms of the privacy so if if the court is willing to sanction a three sided piece of cardboard and spot the board that that could possibly be a voting booth which we would disagree with it improperly used in this case and we have submitted to the court in support of this argument several photographs that are actual exhibits from the record that show the differences and that show that the particular kit used it's called a pool master to voting kit was not properly assembled by because it wasn't on the little metal fan that's correct your honor possible difference and that may well to differences your honor if you had been on the medal stand it would have been approximately six six inches higher which would have created some greater level of privacy in terms of where it was positioned opposite the observers in very close proximity but more significantly had been on the medal stand the boardings it would have had lots of options in terms of where he could have placed that in the room he could have easily placed deck as it would not have been confined to a table that was in the room behind where the observers were sitting so the observers couldn't look at someone as they were actually marking their ballot the observers have to observe well the hearing officer made that argument he said one person's staring could be another person's intently observing and try to look at them they have to look at the moment well your honor we would says we would submit that the only the only purpose an observer has with respect to policing the voting booth is to make sure while they actually mark their ballot ok but so you stuart that you are not asking for some sort of absolute rule that failure to use this certain dimensioned voting booth invalidates the election so if that's not an absolute rule and we're just kind of looking at is there a substantial evidence against what the board found then i'm looking at employer's eight d and it looks like this person's shielded all the way up to looks like a relatively tall gentleman that standing there but it's shielded all the way up to kind of where you're entire is an audit just below that on that man and his arms  shielded and the walls behind him and so to me i'm this looks more secure than what i've there is everybody's walking by always kind of stuff and you say there's a lot of elections but i've been to runoffs where there is only one you know john versus jane on the ballot and i frankly people can walk by and whatever and this looks more secure than that and certainly doesn't look like you could see how this guy is voting so what is wrong with that your honor if you read the testimony two of the witnesses who testified testified that they actually change their body position and movement to try to conceal how they were voting because they were so concerned that the union observer would be able to see one cla over and the other said he actually shift his hand movement to try to throw off that was his word throw off the union observe it how a normal looking balance which maybe you have to shift slightly less fly the right how am i going to know how this guy's voting i don't see how look even if i was standing there i must i was standing right next to him how can i see how he's honing your own i don't know that you can actually see how he's voting but the standard the board set forth in columbine royal lumber and imperial read and read and wasn't that it actually had to be observed it said employees and i'm quote could have led employees to believe they were being observed as they voted it's a reasonable belief standard and we had testimony from eight people that that's how they felt the lack of privacy again adding to that the they were intimidated and have devoted certain way i don't believe any witness testified how they voted your honor but i think given the vandalism and everything leading up to the election there was certainly some intimidation factor i would submit the fact that there were two void ballots in the selection or employees selected both sides put an x in both want boxes is five but if you add in the two void balance of those people hadn't been afraid we would submit and had not joined in their ballots intentionally and certainly a reasonable inference the court can draw from the fact that they were to void ball bit more concerned there seems to be kind of this atmosphere of intimidation we've got people stiers getting slashed we've got this guy standing there you know you know what to do and stuff like that so they're there to me is kind of a bad feeling here and that may not be enough to overturn the high understand that but can you explain a little bit about why the cumulative impact of all of these sort of questionable things that maybe by themselves as a straight commoner this or that but when you put them all together particularly a lot of the closeness of the election to create kind of a haze of if you will can you explain how we look at that and why the cumulative too much that's the whole idea of cumulative errors that the one error of the one error was enough you wouldn't need q motive here it's here you hat you kind of are saying well it's not and you know this guy martinez is there he's making these veiled comments that's not enough the slashing the tires that's not enough this is everybody stand around the break room staring at everyone as they walk in that's not enough but what about when you put them all together i don't think you can say that that doesn't matter and that's my question when you put together maybe one isolated occurrence wouldn't be enough but when you start adding it all together you have an atmosphere of intimidation is that enough and if not why not your honor again and i understand the court's concerns and i'm happy to discuss  objections individual a but on the board is simply not aware of any case where conduct that in of itself becomes objectionable when somehow put together therefore becomes objectionable and with respect to some of the individual objections for example some of the vandalism that occurred the board reasonably implied the third party standard because there's simply no evidence to link it to the union most of the conduct that occurred was minor the dissemination is very limited to the extent it was disseminated there isn't plenty here in play there that might differ in one piece but there's really no evidence that employees as a whole even heard about all four of the incidents and particularly from the one that might be considered the more serious incident there is no evidence of dissemination except for one employee and so when you start to look at them individually that's why collectively again the more simply isn't aware of any case where the board or any court has taken objection such as that and then put it together to somehow find opponent but it just it seems like there's a lot of this stuff going on it's very disturbing to me as far as martina sitting there you know what you have to do now he's supposed to be the observer and he's saying stuff like that i don't find that particularly proper your argument is it's not improper enough and then that's when i get into the can you lay shit if we take that as an isolated piece in the way of this isolated piece and we have this i think you become less isolated when we have a bunch of  somebody he did say i wouldn't want that buyer for if we were to a furnace i wouldn't want that to be seen as like this is how an election should be run i think you have some observer stand there making comments  i find that very improper maybe not improper enough under the standard review blah blah blah but i'm concerned that if we were firm this then we continue to have this kind of contact you know i understand the court's concern where the board doesn't determine whether it's sufficient to you overturn the election it doesn't mean if the board condone some of the activity going on it is more teenager that it's ideal for someone to pick up the ballot box but at the end of the day the fundamental question is w you know make a determination the question asked of counsel absolute same question here beyond those is there any evidence that was submitted at all of an actual you know misconduct piece of the you know casting of the bal that gets worked out between the board mean union and the company to determine what would be the best times and agree and this is i believe a stipulated election agreement where the parties agree and the times in the occasion mix cited in our brief the staff of the proposition that single acts and independent acts can indeed and should be aggregated in terms of their overall impact on voter and on whether or not there is election misconduct and we believe the hearing officers standard view on that so what if we were going to disagree with you on everything except we were questioning aggregation and so that was our focus if that were the case what would be your argument specific to that on overcoming the fact that we give deference and you know they are considering the same stuff even aggregated as kind of being isolated sporadic you know maybe not picture perfect but life is lived in is chief judge to instead you know people are passionate and you know vote for john vote for jane kind of attitude in this and that what is it here that would overcome the deference to substantial evidence supported a finding that the aggregation wasn't sufficient to overturn the oh so your honor let's look  at just the vandalism piece it wasn't isolated and it wasn't sporadic and it wasn't over a long period of time in fact the hearing officers findings with respect to the vandalism are remarkable he agreed and found that the damage was tied to the election and that employees could reasonably reach that conclusion that occurred over a short time frame just before the election those with a hearing officers findings he also specifically pointed out the damage to the brake system on one of the drivers work trucks and the fact that that could have resulted in injury or death and then he goes on to say remarkably i find them not to be extreme in the nature the record shows with respect to vandalism twenty four employees were either the victims of vandalism themself ten produced evidence sufficient to make a profit facia showing that the atmosphere of free choice was destroyed by the conduct or what is the standard we applied to the aggregation cumulation argument at the least had its day you said we have a da review but they so substantial that is i'm just trying to get at what what argument are you making legally that we can overturn essentially fact findings about how this impacted the we don't have to say that to a certainty i don't think the or case law requires it to a certainty that's all all that's a case you make below i mean our job in to superintend you know these elections you know  that as we get your point that our job i mean we do it in other cases where we get coming up you know we may look at it some and have a view but that's not what the case you're citing say we don't superintend the elections and so on and so forth and all that able case you may make of it surely asking us to do that or else but there is an oversight function that the court does serve where the board doesn't get it right ironically believe the board here didn't get it right and the hearing officers eighty two page martinez held the box but you can see there was no tampering he never lost sight of it for a few seconds i mean all last kind of conceded so for every point you made you know it seems to be tempered by something the well again he had it for a few seconds no allegation tampering that was conceded you know below him in the briefs so on balance yes i mean you ably how like the points but eyes not to a degree that this wouldn't you know sort of earth below teed up it cetera et cetera but wants to still you know comes out out differently and i'm still a ship person have you ever really differentiated the stayner you know in  he was certain the border agent saw how he voted and if you look at the photographs we submitted the positioning of the border agent in proximity to the voting shield was within two or three feet your honor that was his impression whether he was right or wrong we don't know your honor but that's not acceptable your honor that the board has referred to its elections as the crown jewel of the agency and rightly so and we don't believe that these types of voting shields this is not an isolated case run it is a case pending in the third circuit this is happening all over the country because these new voting kits are able counsel bashing the arguments in a way that we can definitely get our arms around what you put football thank you to both sides for the briefing argument case will be submitted before we take on their case pounds