how can with a ten part test and then when they do it and when the board ends up saying ok the one that we probably got it wrong on a factor for wasn't that important  underlying word decision you know the grievance procedure just to focus in on my concern that i have in this case the grievance procedures is the thrust of your argument that there was a grievance procedure in place but there were these what you can characterize as confusing comments from someone about we're going to try to locate  that that could of misled the workers into thinking that they didn't have to report back to work at the time so what do we do with that fact so let's put it aside  relying on the grievance procedure but the problem here seems to be this fact that there was some confusion in the discussions in other words some way didn't say apparently you have to go back to obligation to inform the employees so that's so i read that one and i think that's true obviously we take that as true but there seems to be more than just an omission here at least the fact found by the board there seems to be an affirmative statement and i know we could argue the facts for another but the board found in a firm of statement by some way that seemed to indicate the workers that she was trying to locate whom and weren't and weren't there  the response is again your honor number one the strikers were well aware before the strike started that neither coolly nor cook the food and beverage director of ailill but why did she say that she didn't know that there was an unbelievable amount of confusion initially there were one hundred strikers in the cafeteria right i understand that cheap the and that was said three by three different people over the course of hours the the hotel your honor didn't even know the purpose of the strike until nine o'clock when another strike leader patricia simmons placed a phone call the human resource department of the hotel the confusion on both sides was our view the reason for the strike the ultimate reason for the strike was the suspension pending investigation of a call poised sergio radios who was suspended pending investigation for stealing from a guest that's the serious issue in a hotel then just occasion was ongoing at the time and in our view when you look at factors one together with factors four and seven about the availability of an effective grievance procedure and not on them to turn to a legal question it seems to me that your position is that there's a gloss on quiet flux when there's a grievance procedure and in a fact one there is a grievance procedure then the employees are not allowed to have all onsite work stoppage is that your position it's not that they're not allowed to educate when up it is earlier found that factor weighs against the protection of a job action so it's not a per se rule no it's not a perceivable and what in those circumstances what could overcome what facts could overcome the grievance procedure to allow the workers to still have an onsite work stoppage even though there was a grievance procedure in this particular case just generally we don't believe that there were factors at the middle to work stoppage there are cases where the board has said and the board has said that courts of agreed that a reasonable amount of time for a work stoppage is from the civil even if there is a grievance procedure but in the cases cited brief the unifying factor where work stoppages were found to be unlawful were in those cases where grievance procedures actually existed and as we have here the other factor that we think the court needs to focus on is how it can you waited the reasoning for the strike was this wasn't about employees own working conditions it was about i thought the they thought the coworker had been disappointment and they might meant the board's view was that the employees struck because they were concerned that ray is was actually suspended for his union activities that's the board's final right  not what we are saying is that when you wear your reason for the strike which is attenuated versus the existence of an affective and ongoing grievance procedure is here we're going to see if we can get these people you want to talk to these folks we're trying to see if they can get there and in my mind that that changes the the the factoring quite a bit if that had ever been sa policy and there's footnote twenty five of the board's opinion because the the memo had said you can use the cafeteria during breaks for bringing things to the attention of supervisors and managers  that is a leap of faith taken by the labor board the simply and supported by facts simply because the hotel modified its policy to say the cafeteria was the only proper place for  employee breaks does not by any stretch of the imagination particularly in light of the history of group grievances state that they could only do grievance meetings with hotel managers in the employee cafeteria while it also didn't just say breaks and said that was a place you could discussion of digital workplace concerns with your supervisor your manager or home and resources i don't cook and vargas had a conversation vargas said we're leaving we're going down to the cafeteria and we need you to come to responded i can't i have to stay here and take care the guests in the factors those are quite factors for consenting in light of the court's finding that the company for open door policy in fact encompassed group complaints in the board entirely agree with that finding second the board clarified one of the factors it's factor three which deals with whether it works not the interferes with production and finally the board reconsidered its overall balance of the factors to determine that this work was indeed protected under the to begin with factors seven for the board reasonably it's assess the impact of the open door policy on both those factors factor its many considerations are in play what the board did was say that the availability of the grievance procedure isn't decisive when especially when the other factors either all favor protection or at least  you didn't didn't the board say that in response to our observation first time around it appeared that that that was critical to the whole decision making process here so that the first time around the board missed it right the board overlooked the fact that there were that there is this grievance procedure in that we sent it back we said ok said our account for that and they had they account for that they got it wrong the first time they said there was no grievance procedure and so therefore and there was why isn't that changed everything about this so the board's explanation of of that will first of all deal with the two potentially problematic cases which that the board distinguishes in those at the coal mills case for thirty case and the camera manufacturing and its board notes in both of those cases the employer explicitly invoked the grievance procedure and in the end stood firm on that procedure in the cone mills case the employer also explicitly rejected demands and the camera manufacturing base were in fact the board so that would seem a basis for the board to do what the concurring member did which is to say the grievance policy would be hugely significant why don't we affirm on that basis suppose we agree with the concurring member i think the board might have gone too far how about how do we resolve that here so i asked two different questions you can and in fact on page six of the board decision that's ninety one of the appendix the board relies a lot on the belief that the employees had that kumi or cook might yet meet with  them in the boards where it's demonstrably contributed to the employee's decision to persist in the worst stoppage of response the and again that that action that consideration impacts many of the factors and so i do think that's the crucial point here i think the difference between the majority and the concurrence is is simply the relative assessment of weights and i think that when one how long into the work stoppage were they when they first told that they might have there might be an opportunity to speak with management so i believe after he third warning that some iowa gave to the employees that's when it dialogue began to develop it so what if she did just what if she had not said that she'd given the two warnings and then the third time just warn them again and didn't say anything about well look out right what do we do with down about one hour into the work stoppage and based on the many cases that the board relies on in assessing the length of the work stoppage a one hour work stoppage would still fall well in the print private property interest and organizing activity right and so you're telling me that the that the that a group of ponies with knowledge that there's a grievance procedure that can be followed can conduct an on site work stoppage for an hour in the face of at least two warnings to get back to work and that's protected activity that that's the balance well i would call of course attention to the camera manufacturing case which was the second arguably specifically noted that the work stoppage did remain protected for quite a while and it was only after about three hours three and a half hours that it became unprotected and there are other considerations there more specifically to the case and this is what the board really does rely on these conflicting messages and this goes to factor four which which is different from factor seven in that factor seven is just discussing the mere appeal availability of the grievance or sheet seizure the factor for goes to the adequacy of the opportunity of the employees to present their grievances and based on the fact that many management official officials conveyed to the employees that they cutting consideration the overall assessment here that it weighed slightly for protection although the board does note that that this is not a decisive factor either and if the court were essentially to disagree with the words assessment a factor or it would not change board's previous decisions stated that it's not considered an interference with production that would weigh against protection if the only interferes with the company's operations is due to the employee's suspicion of their own wor do in this case the board found that this fact away strongly in favor of protection because there is no evidence that the amount well is an argument well there is no evidence at all in the record that these employees in any way blocked employee other employees were not striking from entering any of the areas of the cafeteria for example the cafeteria itself even though the the company states that it does the the l explanation and it began goes back to a basic principle here was that if these employees had chosen to go off site and do it a picket line or some other sort of protected activity off the hotel premises this the same sort of interference would have occurred and as with production and for that reason because those sorts of activities are premises were undoubtedly protected it was very precedent for the board to take this approach to what the word interfere means because i think it at first glance when someone sees the word interfere you would think that by not doing your work and requiring others to fill in for you you're somehow interfering with production but what what was the authority the board relied upon to say that that sort of camera decision the board there specifically right relied on the consideration that quote the employees there were entitled to persist in their protest for a reasonable period where quote the work stoppage caused little disruption of production by those who continue to work and there are several court cases and to the same effect and then the board also relied on just the more general principle that as i understand  i'm trying to get is why should we understand the word interfere to be so limited because there's no ssion but the operation of the hotel that was it was interfered with right hundred percent occupancy they so the border light heavily on section seven thirteen both of which affirmatively protect the right to strike and so it starts from that basis but as far as this in an interpretation of interfere being reasonable it's because the wife likes  test focuses on property rights and to the extent that property rights are implicated here it's because of the employees remaining on the premises and so the only sort of interference it's tie in has some sort of a nexus to th have interfered with production which which is relevant to the consideration of balancing property rights is to the extent that there will be things got to be it's going to be somehow different than if it were an offsite strike right restatement essentially collecting many various considerations that the board over decades had developed it was attempted rationalizing or at least laying out of those considerations and to the extent that it may have been too broadly worded i think this case goes a long way toward providing better guidance on this thank you thank you very much service industry employer we argue that brief it does make a difference whether the board agrees with that or not we had one hundred percent occupancy on the day of the strike one hundred but isn't there a board precedent that says that they weren't making new ball here were they using their board precedent that says the inquiry that you're supposed to engage in is to ask whether the interference with production here is is like or are dissimilar to the interference with production that would occur in an off site strike and they're saying it was the same nothing's happened here different than if they had formed a picket line outside workers or gotten sunni people need to fill in and that's not a presence this is that's not the type of interference with production that cuts against the employees and the answer to that although the board didn't state it is absolutely yes how is it any different than it than if there had been a picket line form that side with the seventy seven two hundred employees  what's the difference between that and what happened here there is no difference your honor ok that would happen anyway so you're saying to the boards of all on this is just wrong we think that that factor is not as some as more and s said ok ok there's no further questions thank you very much thank you very much the case is submitted