you know as morning it please the court and larry because the engine i represent petitioner kept a in this matter this matter is before the court on our request petitioners request that this court direct the national labor relations board to conduct an evidentiary hearing into a number of objections that were raised at the time of an election of a representation election held under the rules of national labor relations that it is interesting to note as i election can be conducted and which makes an election fair but there are submitted detailed affidavits and it's important understand this because these detailed affidavits contain certain types of conduct that in and of themselves could violate the act the affidavits were not refuted in any way before the before the board made its decision that is to say that the regional director had absolutely no evidence whatsoever to refute any of the allegations made by the various affidavit swore submitted by individuals who were affected by the conduct that is they were bargaining unit employees were picked up punitive bargaining unit employees who were subjected to the type of conduct that is being alleged that petitioner alleges violates the problem here is the question of how much evidence can be presented at at about that or about the time we submit objections to the conduct obviously this court has addressed this on multiple occasions the first time it just said it was in bell drew was based upon a supposition that there was no violation of the act could you please get down to brass tacks and essence of saying what are the specific instances of misconduct that you claim occurred yes or at the affidavit show and the evidence that was presented is that one there were multiple telephone conferences conducted at least twenty four so when you were talking about the peerless plywood standard electioneering twenty four hours before the before the election and there  multiple telephone calls done by the the the business agent multiple telephone calls at night under circumstances that suggested coercion and in fact resulted in coercion if you listened and you believed the affidavits which ar refuted that resulted in coercion there were it's multiple attempts to contact employees within that twenty four hour period there were attempts to gather employees outside of the building on the day of the election there were attempts to gather employees put them into a group and as you know these compelled a group meetings within twenty four hours prior to an election on lawful the question is were they coercive were people actually coerced into doing that well that's a question a fact that needs to be ferreted out during  during a hearing and not by a conclusion that i don't think that could have happened most importantly him perhaps the one thing that might sway all of us is this idea that there were discussions with regard to the immigration status of these employees let me ask the court this if in fact they the tables were turned and the employer was accused of making a statement to employees with regard to their image immigration status if they voted for the union would you have any doubt whatsoever that such statements would constitute coercion and that w election results would have been overturned in a minute and frankly he would have had to guess a bargaining order that would have rick what it was altered i guess a bargain or saying you can't even have a fair election under the circumstances well here we have allegations that the union was making comments and suggestions that the employee would employer would retaliate against employees if in fact they voted for the union so it seems to be a bit complicated and responded in fact did raise some issues about why it's conflict with the reasons convolute is because we had about five days to collect the information and put it into an affidavit so that we could get a so that we could get a hearing this is not a situation where we presented to the court absolutely no evidence whatsoever we presented quite a bit of  comparison to some of the other cases that have come before this court this court alone has said in numerous cases that we don't have to prove our case and i'm i don't think this court or any other court has actually developed what the standards are i do want to address one factor about what the standards are however and that is that the respondent has suggested that we have a heavy burden and that's the language used in the brief we have a heavy burden to establish enough evidence to have a hearing that's simply not the case of the metro truck body case they mentioned heavy burden but only in the context of setting aside an election so the question becomes what's the standard that we have to apply to get a hearing because that's all we're asking for we are not and i want to make that clear if it's not been clear that we're not asking this court to set aside the election we're asking for a hearing and those standards if you look at this court's history and that would be the bill foundry case in the valley bakery case those standards are a little bit looser it's not a scintilla it's not clear and convincing it's not a preponderance but there's got to be a standard somewhere in there that short of quote a heavy burden because if we have a heavy burden just to get a hearing what's the burden to turn over the turn over the election it's almost impossible is beyond a reasonable doubt i don't know but it doesn't make logical sense to for us to suggest that we have a heavy burden in fact that's not what the case law says there is one case in particular that was cited in the metro kruk body case decided in one nine hundred seventy nine by this court and these again are on the circuit decisions valley rock five ninety fed second three hundred one nine hundred seventy nine that's where the language of heavy burden was first suggested and it was in the context of overturning an election by the board after a hearing and in fact in that case one affidavit sufficed from an employee to allow the the petitioner at that point the employer to go forward with the hearing and so the hearing was directed in the valley  in substance all of these issues need to be discussed in the need to be brought out in terms of evidence we haven't had for example an opportunity to cross examine the union representatives who were present and who are making the threats who are attempting to  course employees we haven't had that opportunity that we get an opportunity to at least suggest to a trier of fact that this conduct in the manner it was conducted on this occasion in fact coerced not only these seven employees but a the immigration threats were that if the union were a let not aleck did then and then the i the the i nine so would be checked and people would be terminated correct so a sensible it's a retaliatory act you voted for the union you lost we're going to check your ionizer we're going to fire you is it your position that that would occur independent of how the individual worker had voted well i think what would have happened your honor under the certain again we're speculating and one of the things and that's what in my mind requires a hearing but one of the things to consider is the employer would have the opportunity if you believe the union to decide who voted and who didn't and internally you know that that happens that i know that this  ployee voted for the union the unions out i'm getting rid of this employee because i don't want him anymore so the threat is retaliatory if you look at the valley bakery case frankly that's exactly what happened the union was suggesting during the election period that the employer would retaliate against them and fire them if they didn't vote for the union even though the ballots are secret even though the ballots are sick i i think it's naive to believe that in a in a small working community one doesn't know who voted and who didn't vote for the union i think is that's a n e we arguably shouldn't but i think in the practicalities of the business world everybody knows who's voting for whom so it really boils down it comes back to the same issue and that is why do we not get a hearing over these very specific allegations that were alleged i will tell you that in the suit in our in our reply brief that we went through all of the cases that respondent cited where some of the conduct alleged didn't result in a in a  overturning an election the irony of all of those cases the irony is that each one of those cases was as a result of a hearing they work as a result of a decision not to have a hearing and there's a result of the regional director deciding i'm not going to grant a hearing every single one of the i think we cited ten or fifteen of them every one which dealt with some of the very same issues that we're dealing with that we raised the petitioners raising as the basis for overturning the election every one of those cases were the result of a hearing and not the result of the regional directors decision to forego a hearing how difficult would that be the hearing is a day or two or three or four and by that time we would have the opportunity to subpoena witnesses cross examined and frankly the witnesses who are who  affidavits on our petitioners behalf would also be subject to cross examination as to whether they in fact were cursed or harassed as a result of the union's conduct so again if we were asking this this tribunal to reverse the election overturn the election set it aside i think we'd have a completely different argument here i think our burden would be much different than what it is now we're not asking for that we're simply asking for one thing haven't pav hearing let us have a hearing and by the way i think the regional director regional directors conduct can be measured also in the manner in which it handled the one objection unrelated to the conduct of the of the election but related solely to what happened in the in the hearing to determine whether the would go forward and that is this decision about the sanitation workers that it is ludicrous to assume that the board would have left these sanitation workers in a state of limbo which it is that they're to our mind is show that the regional directors the system making was kind of misguided it was it was preferential tend to lean towards the unions all of the unions argument and left us without any any remedies what do we with well no i don't think so and the vote was twenty three to fifteen there were four sanitation workers if you take them out of the equation assume they don't have the right to vote on that they all voted in favor of the union is still one thousand to fifteen so the board says this doesn't matter and in terms of whether there are properly part of the union or bargaining unit we can determine that later on but in terms of how that might have affected the vote is totally irrelevant i agree i understand what the rich are saying your honor however but the problem is that because the board said they're neither excluded nor included they sit in the state of limbo are they in the bargaining unit or are they not currently but what does that do to your i mean i don't understand how that helps you one way or the other if it's only if it's only looking at the board's conduct as a whole so looking at the board's conduct as a whole in denying us a hearing on what we all agreed upon in a stipulation that stipulation was once the election was over we would deal with those for it not in a separate proceeding it doesn't say that in the stipulation we have for employees who have no status if for example that i don't understand why that tells me that you should have a hearing it's all again it's only one part of the whole we should have a hearing on all four all five of the edge objections it's one part of the whole the reality is the simming for the moment that the objection is to the outcome of the election your objection is not as to who is within the protected class union i agree with that and that's that's true i agree with that  let me leave you with this thought in leave myself with some time for rebuttal one thing i can say is that we have to look the court should look in your case law has suggested this we look at the totality of the circumstances the cumulative effect of the conduct and that's in the cases that have been my name is rebecca johnson and i'm here on behalf of the national labor relations board to start i'd just like to clarify the standard for obtaining a hearing on post election objections i believe and i briefly say that a heavy burden in overturning an election in order to get a hearing they simply have to present specific evidence which if credit would warrant setting aside an election they simply have not done in this case in their reply brief they also claim that the board somehow usurped somehow did not live up to their duty to investigate that's not the board's role here the board simply supposed to look at the objections and the offer of proof on their face to determine whether they have met this threshold showing an order to have hearing and they simply have objections as alleging a perilous plywood violation the board's peerless plywood rule is very narrow is simply prohibits one of the parties to an election from conducting speeches to mass assemblies of employees on company time if you look at each of the affidavits and the objections the company simply has not allowed to peerless pilot violation of these types of contact with the union or with the employees were not on company time they weren't in mass a mass to somebody at most they were and small groups if you take the evidence to be true and it simply does not fit into the board's narrow carolus plywood  rule and the board also on the requests for if you found that the company had a large additional electioneering and surveillance claims the board found that these claims were waived because they were not present first to the board but even if  you were to look at them they also did not do not fit into the board's prescriptions on electioneering and surveillance turning to the so called threat  board has broad discretion in this area for supervising representation elections and they've sort of carved while they aspired to laboratory conditions for their where there are elections they've sort of carved out different areas to determine whether conduct is coercive and in the context of threats of job loss or immigration status like this they have found that the course of nature of this type of comment derives from a party's ability to carry out that threat and here view threats can be considered illogical so a reasonable employer hearing this would know that the union could not carry out this throughout the union cannot fire employees and could not check their i nine and this court and valley bakery has sort of acknowledged this principle that these types of threats are illogical  where where the union is targeting employees on mass rather than union supporters valley bakery is distinguishable because there the allegation was that the union was claiming that the company would fire and soyuz had signed authorization cards thereby presenting some type of support for the union in that case the thought wouldn't be a logical and a reasonable employee could tend to be coerced by that type of moment and the company produced affidavits from two employees on this issue that you're just talking about that's right why not hold a hearing if you have two employees that say i was i believe i was threatened him this way  types of comments and found there wasn't a primal face a case you know of the nature of threat is in the eye of the beholder in the receiver if you're sitting on your front porch in your neighbor across the street walks by and says you have a beautiful house here i hope nothing happens to it that's one thing if tony soprano walks by your house and says you have a nice house theory be a shame if something happened to him that could be a threat why not find out through a hearing devised a sort of threshold showing in order to sue and serve that only only something with substance gets passed to to a hearing stage and i could understand one could understand if the threat was if you vote for the union union people from mars will come down and and kill everyone with brown skin that's perfectly a lo a threat of the nature that relates to immigration status why not find out if it was pervasive this is simply simply the sort of cantars that the board has defined for these types of these because you're saying that the employer in fact would not have had access to the information or are you saying something else that there that they couldn't determine who voted yes and no but that's not what the company   i'm trying to figure out if one of the one of the arguments you're making is that the union wouldn't have access to the information as to the immigration status of the workers and therefore that the union is going to do this well it can't be true because they don't have access to the information is that the argument that's right and also the company is not alleging that the union claimed it was going to check their immigration status the company is alleging that the union cl listen if you vote for the union the unions are going to go and find out which one of you guys are here illegally and they're going to kick you out of the country you know but the unions claiming that the company is claiming that feel sorry we can't help here because we will there be no union that's right and that's why the board also analyst this under midland campaign propaganda which the board has a very lenient rule for it does not into the truth or falsity of campaign propaganda it's simply looks to see if whether there is whether there is a forgery and if there is a forgery then the employees perhaps cannot recognize that campaign propaganda propaganda but overall the board looks to employees as mature individuals who can just turn these types of comments and to term and whether this is mere puffing by the union or whether whether they actually have the ability to carry out these types of threats finally turning to the employer sort of how the of the circumstances argument the board is not required to conduct totality of the circumstances argument and this court has said that these types of arguments should be approached with caution you can't use this type of argument to turn a number of insubstantial objections into true challenge which the company is trying to do here the reason director appropriately looked at each of the objections found them each to be to fail under the standard for getting a hearing and properly found that no hearing with warranted in this case i'd like to pay as been ordered the order before the court is refusing orders to pay to bargain with the union as the representative of a certain classification of employees these four employees are neither included in unit so they are not required to bargain with these four boys in any event the board acted within its normal procedures in putting the voting t upon council to sort of know the the board procedures under which he was practicing the boards and deviate from its usual standards and so there did a post election hearing hon morning honors caroline cohen on behalf of bakery confectionery tobacco workers and graham miller's union the eighty five i'd like to first know by pointing to the court's attention the first objection that was filed by to pay to the sanitation workers inclusion in the unit is indicative of the validity and merit of the rest of the objections as it is a frivolous objection and the appropriate course would have been for the employer to have filed the u c petition for clarification of the unit and that gives me a two i think a good opportunity to compare the two certainly objection number one is one word is relatively easy to look at the decision of the regional director not to hold a hearing because these sanitation workers even if they not properly boning it wouldn't have affected the outcome and you can later determine through the procedure you described whether they are part of the bargaining unit or not but let's jump down to the two affidavit from employees who said for lack of a better description they felt they were threatened on this immigration issue why isn't that the kind of issue that at that there should be a hearing to find out if it's true and if it's pervasive i would first jacked your honor's attention to the fact that one of those affidavits was not signed and the fact we have one signed affidavit from an employee who voted in the election and said that he felt threatened by some statements that were made to him why not find out of the whispered basis well understanding that the behavior is courses and here i would jacked your honour's attention to the line of authorities which look at whether threats of job loss are course of enough to taint free expression in voting and election if you look at and i would be versus down tamp it services pacific grain products the court found that it's illogical for an employee to believe that an employer would out or i'm sorry that the unions prediction that there might be job loss are here that there might be a potential that the employer would check immigration papers with illogical there is no way for the union to know for certain that the employer would in fact check immigration papers if the shoe were on the other foot with that word or i'm not sure if i understand the question if the company in the course of a representational action potential union member if you vote for this union we're going to go check everyone's immigration status and get rid of anybody who's not one hundred percent  the standards to be applied should be applied equally as between unions and employers is the objective an aim of the act to sanction and share free expression in an election so the answer to your question is no it would not make a difference in the  is the question is whether there's well actually the the relevant in korea i'm sorry let me correct myself is whether there is an ability for the actor who makes the expression to carry out that threat i know i'm here illegally am i going to be really confident that this company is without power to bring the immigration authorities down on my head i'm going to be terrified my little boy or call the employer calls up the ins folks and says hey i think i've got some real legal here i want to come over and check well i think the union i think the company has the power to do that i understand your point your honor however i think the authority that kept a fight is indistinguishable from the alleged threat that occurred here and one of the cases that are a services case there was a direct threat by an employee who was known to support the union that the employees might be deported if the union won here there was a statement that was more equivocal that the employer could check i and i in papers and if the union was in place the union could protect them and the union is not prohibited from sharing protection to its employees who it represents if it were to win the election so i think the authorities d ok and any further questions from the bench thank you thank you thank you and you've saved some time thank you just two comments one is the valley rock case that i previously cited that was have employees believe that he was being coerced and threatened and what the court said this court in my circuit said is that you can't infer as a matter of law that he wasn't coerced or threatened and that is a standard that this  has you can't infer as a matter of law that this individual who provided the affidavit saying that he was concerned about the is immigration status based upon the u s comfort you can't infer as a matter of law that he wasn't coerced therefore as in the valley a hearing was granted mind you i will i would i would i suggest that if we look at the cases that counsel for the union has cited all of those cases were decided at the hearing stage and not at the pre hearing stage where the original director recognize we have very little time to gather the type of information that we want and frankly if we get to in depth in the inquiries as to whether the conduct was coercive in the nature of the conduct the first thing that happens to us is we get