good morning your honor may please the court my name is ron hall and i'm counsel for queen of the valley medical center and we're the appellant in this matter with me is my co counsel philip schecter and if i could i'd like to reserve three minutes rebuttal the court's familiar with this case procedurally we're here on a merits appeal after filing an emergency appeal with the court and the court staying the district court's grant of a ten day injunction in a union dispute with my client injunctive relief as you know under section ten j is an extraordinary remedy it's permissible in circumstances where the petition has demonstrated that the traditional criteria under winter  met although the district court ruled that the region met the threshold in the criteria for the court failed to observe longstanding and precedent fail to meaningfully engage that precedent and failed to articulate the facts upon which it relied to determine that the client that the hospital having gauged in unconditional bargaining in a waiver of its statutory rights specifically the court made three reversible errors with regard to the likelihood of success on the merits first the court concluded that the hospital unconditionally bargain from the time of the election through the certification of the results and it's clear under the supreme court precedent brooks case specifically that there is no duty to bargain from the time of the election through certification the duty to bargain kicks in upon the certification of results the district court found that the conduct or the bargaining upon which it was relying to grant the injunction began at the time of the election through certification and thereafter for that reason the district court's legal conclusions are faulty and that sufficient to overrule the injunction and excuse me vacate the injunction second the court found that the hospital unconditionally bargain with the union while its requests for review was actually pending before the board of the d c circuit as to what constitutes conditional and unconditional bargaining those cases teach us that employer cannot do both an employer can either  how the government would like to frame the issue any bargaining but the cases don't the board president doesn't say that an employer waves its right by engaging in any bargaining and any bargaining could be conditional bargaining any bargaining could be bad faith bargaining there are no waiver cases cited by the government arguably this is actually a case of first impression before that before the court there are no cases so i think the was pretty clear is it not that you can't bargain and then refuse the law is clear that you can't recognise a union origin and then withdraw that recognition separately the law is clear that when an employer post election continues to contest the results of the election or the processes of the election any so called bargaining during that time is actually conditional and because it's conditional the board concludes that it's ironically includes that it's bad faith bargaining and certainly bad faith or unlawful conditional bar faith bargaining that is insufficient in the government cites no case that that in and of itself is sufficient to vitiate a party's simultaneous challenge to the results of the time valley medical center continue to negotiate with you today i mean it so in other words the district court consider the context of all the discussion not just in this finite time that you argue because of november fifteenth correct objections were filed on november twenty second two thousand and sixteen those objections were considered by the region and eventually over ruled on december twenty second two thousand sixteen statutorily in according to the board's rules and processes my client fourteen days with this is file its request for review and it did so timely and in the government makes no argument that  request for view was somehow waived during that period of time the board doesn't address that issue in its decision on the request for review nor does the region of the n l r b take that position that was that it was somehow waived during that time between twelve twenty two and january ninth the government offers little if any conduct by the hospital that would amount to bargaining in fact i believe that there was a quest regarding an employer in a schedule there was a request for information that was made by the union that went on responded to between twelve twenty two and january nine so so now the hospital is safely at filing its request for review not only because the board allows it fourteen days to do so but there is no conduct that would amount to bargaining or unconditional bargaining during that period of time but my point is you can't just look at conduct during that two week time frame you have to look at the course of dealings between the parties which is what the district court did  looking at the communications about terms and conditions of employment before the certification and you seem to take issue with that that she committed clear because she considered conduct sort of occasion well yes herman whe ther or not there was sort of certification and then with well whether there was bargaining and then withdraw bargaining yes your honor we take issue for with it for a few reasons one the duty to bargain doesn't kick in until certification issues by supreme court authority therefore there was no duty to bargain and there was there was no actual bargaining during that time in the record is void of any actual bargaining during that period of time trying to take it in segments to focus the court not only in the legal authorities but also the factual support for the for the district court's conclusion that the hospital actually engaged in bargaining and so the records void that march twenty fourth letter no you are clearly exactly stating that i mean well no your honor we would submit that queen of the valley put the union on notice that it was contesting or challenging the union certification when it did so by filing its objections and serving them on the union because the the the law says we must notify the union of out of our challenge to their certification not necessarily we when you requested review so when we filed the objections then when we requested review and serve that on the union and then subsequently in the january seventeenth memo to all employees which was posted  in fact the union submitted larry combs the c e o informs employees that the appeal process is continuing yet we're prepared to go ahead and go shoot with the union upon their request however fourth letter well you know you your honor i would differ with you on several levels one is again the process the either the process to challenge the certification of the union the election results th board or if you look at the technical refusal to bargain process is objections are filed because you need to preserve that argument a request for review is filed and then when the rest if the request for review is denied at some and it would respond is that it became available and so then they start talking about when they're when they're going to have their bargain first bargaining session you are the employer didn't ask for information the union asked for information post the requests for review the response you provided the information the some information had been provided earlier and the record no information was provided post denial of the requests for review in fact what the union was asking for it was is it was asking for the employer to revisit its earlier january tenth request for information ironically the january tenth request for information that went unfulfilled to the union by the employer was the basis of a bad faith bargaining charge an unfair labor practice again your stance if i understand it probably want to save some time but if i understand it correctly there is really no disagreement over the law the question is really whether there was any bargaining that took place in the way that it was bargaining that took place after the denial of review i would say that there's wholeheartedly a disagreement because the the board is taking the position it comes taking the position that any interaction that could constitute bargaining not bargaining for a first contract any isolated or piecemeal engagement with the union by any supervisor at any level waller request for review is pending would actually waive the right to continue to test certification and so there's a whole heartedly there's a significant disagreement on the please the court my name is rebecca johnston i represent the regional director on behalf of the national labor relations board an injunction in this case is warranted after the employees of queen resoundingly elected the union as  collective bargaining representative queen engaged the union bargained with it then on march sixteenth abruptly withdrew recognition and stopped bargaining with the unit this this unfair labor practice has cost time and is continuing to cause harm and a final border order would not be sufficient to remedy these harms to start a bit on the merits i just want to remind the court that this is not union an employer has two options it can recognize and bargain with the union or it can refuse to bargain with the union triggering an unfair labor practice and then defend against that unfair labor practice by claiming that the certification was improper here queen decided to begin negotiating with the union from the time of the election through to its withdrawal of recognition and i would just like to make a correction that that the  is the time could you address whether there was bargaining after that yes the conduct towards the union remained unchanged after the denial of the request for review and they continued to bargain on a number of employer tries to downplay the role of the union during those negotiations but a close read of the record shows how heavily involved the union was in negotiating issues in the sterile processing department not only with schedules  issues with the supervisor and i would also point the court to the l g do you have decision which came out after we briefed the case and in that decision she goes through this through the factual basis for finding bargaining in these different instances and she had the benefit of a full hearing rather than just affidavit in addition to those issues that employer was offering an employee her weingarten representative in and interview that could be to discipline contrary to what the employer said they did provide more first contract bargaining information they also promised to provide dates for first contract bargaining although they never did provide those dates and there were negotiations in the pharmacy department with bargaining team members that the union was sort of peripherally involved and so there was bargaining after the denial of the request for you would you clarify the record with respect to the dispute as to whether there were union representatives president the march second meeting yes your honor there was a union representative present for part of the meeting the meeting with dealing with issues with a supervisor and scheduling issues held a polson  was there on behalf of the union for part of the meeting and then i believe she left and in the last bit of the meeting they just gust scheduling issues directly with the employee so the information in the corrected affidavit cracked i believe we don't maybe was that to seventy eight when somebody we garlits i want to tap that you should clarify but it seems to me that the employer's argument is we couldn't be clearer in indicating that we were  only bargaining conditionally by our challenge by filing a protest of the election results and by requesting full review of the certification it seems to me that the region's position is the employee has to clearly in before the board is not enough to give the union notice that any of its communications with the union are contingent upon that election challenge what they should have done is what the employer in some of these other cases did and they should have said look we will sit down and talk to you about this but please know that any any negotiations that happen are contingent upon this the  challenge and if you look at their march sixteenth letter that's exactly what they did that's an example of conditional bargaining they said we'll sit down and talk to you but any negotiations or any agreement we reach is subject to test of certification and they also acknowledge the waiver principle and tried to get the union to agree that if they did meet with them it wouldn't constitute a waiver and that was too late  that was too late because they had already recognized the union and extensively bargained with it i'd also like to discuss the irreparable harm for a bed and i will say that the sliding scale still survives post winter and if the diff director says that irreparable harm to sharply  favor then we need only show serious questions as to the merit the irreparable harm does tip sharply in our favor as this court noted in avante these types of irreparable harm flow naturally from this type of unfair labor practice where an employer is refusing to bargain with a union the unions strength begins to diminish the union relies on its strength in order to bargain for a good contract so the longer the employees are without union strength and the longer the the employees are without the benefit of the union as their representative the more disenfranchised they become they lose momentum and once the board issues this order which could be up to two years away this diminished the port is very important the employer will have the upper hand in the negotiations they could they couldn't go she had her contacts held but it employer's side for a time they were bargaining with the union and the union saw some results they have this kitchen closure agreement that they negotiated and was ratified by union members after the employer withdrew recognition  kitchen closer agreement went away they said we don't have to abide by this anymore and that's confusing front for employees they saw their union get results and then they saw those results disappear so that's the type of irreparable harm that we're worried about here  but not only does it naturally flow from the type of unfair labor practice but there are concrete examples of irreparable harm in the record there is a decline in attendance at union meetings there  fearing retaliation based on this other retaliation claim there's a stepping back of union participation some employees have even resigned their employment there and there is a feeling of frustration and that the union i impotent and employees are now resistant and fighting additional unilateral changes are just simply confused about whether the union is there in the first place so there they are operable harm in this case is very strong and queen has identified no real concrete harm of its own it claims that it will be incredibly onerous for it to unravel you know a lot or all changes but i'd like to remind the court there are only three unilateral changes that were  petition any of the additional ones that they cite in their sort of a parade of horribles in their briefing are not before the court is simply a change in one department schedule allowing union access to the facility we've thrown around the term bargaining and what is actually bargaining in it and what is not the employer and in this case that the government has incited a single case involving facts similar to what we have here we are an employer responded to an information request and lost their right to test certification were employees engaged in a union on an issue and lost their right to test certification each of the cases cited by the government or where the employer gave up after the request for review said i'm going to sit down with you and bargain for an initial collective bargaining agreement and did so for a substantial period of time years in fact here we're talking about at best two weeks and we're talking about the protected period prior to that the governments admits that in the protected period prior to that any type of bargaining good faith bad faith conditional or unconditional would be enough to make it clear that it wanted to bargain as opposed to test certification and tears cordons teaches us that the board had to make a decision on this the board had to decide are we going to are we going to do it on a case by case basis are we going to treat it as bargaining or are we going to say no you continued to contest certification and into you disavow that as they say as the board says in fred's n g k and into you actually disavow it we're not going to consider this bargaining so in g k n interestingly enough the employer tried to defend itself by saying look the other day we told the union we recognize you and we're going to bargain with you and then actually sat down and bargained and the board said that's not enough you have an affirmative defense in your answer to the complaint that says you're continuing to contest certification until you disavow that we're not going to call this good faith bargaining we're not going to call this unconditional bargaining and so to accept the the government's briefly we'll give you ten seconds but your time has expired your think your honor i'm passionate your honor that the government failed to carry its burden we submit that this diminishing attendance at union meetings we're talking about two different types of meetings we're talking a bargain in committee meetings of which there are only thirty and and dropping from thirty to fifteen when there's an issue of whether there's bargaining not in some is insignificant but the issue is union support is there union support we're talking at a bargain unit of four hundred twenty nine individuals one questions whether demonstrating that the union had thirty people show up at a meeting of four twenty nine demonstrates union support to begin with