the next case up for argument is park view lounge versus national labor relations board good morning may please the court my name is arianna i represent the petitioner parkview lounge and i'm here to challenge the end of your b s decision order that park you lounge and gauged in an unfair labor practice by protected activity and terminations can be circumstantial evidence that goes to the employer employers motive behind the terminology you agree or really agree the word is permitted  in this regard it's it's a question of substantial evidence was not substantial evidence on which they could have reached their decision i have two responses to this question your honor st this is not purely a question of fact this is a mixed my nd response is even if we say yes it's a purely factual issue the standard of review is substantial evidence of the record as a whole so in other words what the n l r b must do is look at the yes and the administrative law judge certainly referenced that e mail and what's peculiar about his decision is that he even said that it was this e mail that broke the camel's back and it was this e mail that about the working conditions right i would respectfully say no to what we do accept is because we have a recording that was produced by davis we do accept the fact and we do accept the n l r b skin tension that concluded the pac and one's aware of that but that's not a credibility determination what piking was aware that a staff meeting occurred and piping was aware that davis said something about health benefits there's nothing in the record to establish that those comments were made in the plural form in other words that davis was speaking on behalf of other employees usually using words like we and our and there was nothing in the record  the effect that packing knew that other employees know that in approval of misstate his comments and again the standard to review here is substantial evidence on the record as a whole and the record simply  because as i cited only something that cuts the other way apart from that inference which doesn't seem to be a reasonable one to me i have cited my case law in my paper that says that just because an agent is aware of protect the concerted activity that isn't imputed necessarily on the decision maker that makes the decision to terminate beyond that here right this is not just imputation this is actually evidence that he he he  said he was going to speak to him to pack and he spoke generally spoke to pad he spoke he spoke to packin about the fact that davis had brought up certain issues on behalf of herself concerning health benefits perspective davis was bringing issues that only concerned her heart health benefits was something that that only concerned her and not other employees and that's what he communicated to brian planking wasn't   he came to a finding that suzanne davis engaged in protect the concerned activity and by the mere fact that one manager was there mr daley and by the mere fact that daley did communicate generally what had transpired in that meeting to brian packing that's that's when the l g a came to the determination that brian packing must of known but that doesn't establish the n r b's burden of proof which is to show that brian packing knew the nature of of davis activity as concert let me ask you if we disagree with you and we find since it's a fairly low standard that there is substantial evidence to support the board s merit decision how can we possibly say that the remedy imposed is unlawful that she isn't entitle to reinstatement would not require us to reject the initial substantial evidence finding and finding that in fact that she was discharged for cause yes your honor i want to i will answer your question but i also want to just correct something for so so i so tense he says that if there's a determination that the employer engaged in a fair labor practice the board me takes such affirmative action including reinstatement of employees with or without back pay so the inf to that is that when an unfair labor practice isn't committed then the board doesn't have that power but then there's there's further language in there there's an exception and the exception says no order o require the reinstatement of any individual as an employee who has been suspended or discharged or the payment to him of any back pay if such individuals were suspended or discharged for cause precisely what i'm asking about because if we find substantial evidence support the finding that she was discharged primarily as a result of her concerted activity how could we possibly find that she was actually discharged for cause at the same time so the standard for the who's the c e o of parkview lounge admitted that he had no agenda or a plan as of january nd two thousand and sixteen to discharge ms davis so the question that the board confronted and i think that the court has to consider in this case is what happened in the seven days between january nd and january th that caused this employer to suddenly discharge this employee when it had no plan to do so with full knowledge of evils of her little disagreements with managers and so on and the board's answer the question of course is that what changed and what was different in that seven day period is ms misstatement spoke up at a staff meeting with managers present and new employees and she raised a number of workplace concerns that employees had been discussing over time amongst themselves she talked about the cold temperatures in their work areas she talked about uniforms she talked about health benefits contrary to what my colleague has said brian pak and the c e o of parks he was not present at that meeting but the evidence abundantly supports the board's finding that he knew what transpired and  inference right i mean there's no direct evidence that he knew was there well the inference is is a relatively small one there's an admission by mr daly on which the board relied that in the context of telling mr pac and what happened at the meeting and what specific concerns employees raised he specifically mentioned miss davis to mr pac and and he told mr pac in and this is a daley's testimony that ms davis had asked about health benefits and that he he answered he provided an answer to the the entire staff on that issue implicitly he was treating at least of that concern as a group concern and then elsewhere in his testimony and these missions are at page  board inferred based on mr daly's admission and also mr pack ins admission that he was told that ms davis spoke up about health benefits and particular it isn't much of an influential step for the board to say he knew what happened at the meeting and he specifically knew that ms davis had raised concerns of interest to the employees as a group and the idea that counsel has raised perhaps mr daley simply said she raised her own thinking that something was an individual concern when we know and mr daley knew from his from his own observations of the meeting that when ms davis spoke up she her comments were met by nods from other employees and she didn't advocate for health benefits for herself she asked if the employees could get health benefits so there's no question and i don't think parky was contesting that she was engaged in protected activity and the board reasonably found that mr packer knew of excuse me of the activity so what are we to make of the tone of the e mail the following day and the fact that there seems to be documented  some weeks must continue to tolerate them indefinitely once she speaks up at a staff meeting right i think what is i think that january th e mail st of all the board did address it at footnote three of its backdrop for this january th e mail park fuz c e o had told davis look we accept that you have a strong quote unquote strong personality we're willing to work with that and he said he encouraged her to continue coming to them and speak up if she feels that something is unfair or not right i would submit that the january th e mail was not out of the ordinary at all for her she strongly and  strongly and fairly aggressively presented her reasons why she thought she was beating being treated unfairly there's nothing unusual about that and she was encouraged to do that by this employer so based on all the evidence the board looked at not only the timing which is in itself very striking and suspicious but parkview repeatedly sort of refuses to confront the fact that there are several other aspects of the board finding that animus motivated parkies actions there is not only the timing there is also the fact that the reasons shifted the reasons for this discharge mr pac and presented one reason at the time to ms davis and then when the state of new york asked parker you to report the specific reasons that were given to ms davis park few inexplicably produced two additional reasons that her service was poor and she had poor is relationship with didn't wasn't there something a reference to performance issues which you seem to me vague enough to potentially encompass the confrontational tone that she took with management that's true your honor but i think that what the board is concerned about is that there were added reasons all of a sudden it wasn't just the reason presented to ms davis at the time and again the form on which these things were reported specifically asked parkview to report what was said to her so the embellished and that suggests that what all of the reasons they gave were not the true reasons there's also the fact that these these reasons these so called reasons are inconsistent with the statements and conduct of parkview at that january nd meeting there was no suggestion of any performance issue that was going to possibly precipitate her discharge in the in the coming weeks or days there was no suggestion that she was in danger of being discharged for her relationships with managers which were all known all of those issues were known at that time and so the idea that all of us these things became a grave issue and warranted her immediate discharge on january th is simply implausible little up let me ask you the remedial question if we were to agree with you that substantial evidence supports the board's decision that this was an unfair labor practice and that she was murdered she was discharged at least primarily or substantially for her concerted activity are there are there circumstances in which reinstatement would bless be barred and her ten c because there was actually conflict or some danger even associated with her activities yes yes that's that is the function of section ten c is to give the employer an opportunity if there is evidence independent of any unfair labor practice of some sort of misconduct that would warrant the discharge of any employee section employer would have to show by a preponderance that or that that there was a substantial motivation in performance issues even though at the same time the board to be saying that substantial evidence supports our determination that when a motivating factor i mean help me with this i let the unfair labor practice the employer has some independent reason why the employee is unfit for further service and so for example in terra core and which are cases cited in the board's brief those cases involved  unfair unlawful investigations or and for unlawful surveillance but even though those acts of surveillance and investigation one or on ma full the underlying misconduct stood independent of any unfair labor practices and so there was no remedy of reinstatement and back in those cases because the there was independent misconduct in this case you don't have any independent misconduct what you have his party's effort to resuscitate it failed reasons for the discharge and to present discredited causes or excuse me just one discredit it was just been a finding of pretext and there could be mixed motives but the lawful anim dominated and that is that right that's right that's right you'd have to find the relative levels of contribution of various motivations to the ultimate decision but no i mean under the right line the board simply has to find that animus was a defense but in order for an employer to escape liability essentially right it has to show that it would have done the same thing with a guard list muslim sect it exactly and so in this case by definition because the board and just to extend things little further of park you had some independent reason for saying she was unfit for example if if it was later discovered that she had stolen from the company i mean then there might be a role for section ten see if you could also doesn't have immunity no no i'm saying she got ok but but but so she doesn't have immunity but i'm wondering about the sometimes reinstatement isn't the best answer because the feelings are going to be so b that it's just counterproductive and i just wonder why that wouldn't be the case here your honor can't this reinstatement is the board standard remedy for this kind of unfair labor practice and party of course when she is reinstated is freed to take action if it has a lawful reason for doing so is all that the import of the board's decision is simply park you can't take action against an employee for engaging in protected concerted activity if she has if she's reinstated and she has renewed problems of the same kind and they can show that they would discharge anyone for that kind of conduct they're free to do so room with the warnings and yes yes and that's also critical in this case your honor that there were no there were no warning flags thank you very much in the heat of the argument in the spa you have three minutes so we talked about earlier about whether or not brian packin had knowledge of a mrs davis engagement in protected activity that's one factor that the enemy beat has to prove under right mind but the inquiry doesn't stop there and the inquiry continues and it's the end of our piece burden to prove that the employees engagement in concern to protect that activity was a motivating or substantial factor leading to her terminations and i want to focus that consumption is that the main reason misstatements was terminated was insubordination her inability to work with management and she has not stood up here and said that this is false she has not made that argument and she's not making  handshake and everything was going to go forward and they were going to work together so she said that basically the last week is when everything fell apart and then we then she's asked us to look at what happened in that week and of course the major and the purpose of that meeting was to tell davis if you want to work here you have to improve your relationship with management you have to be able to accept constructive criticism because we've noticed the meeting davis so from brian packings perspective there's a meeting on january nd he tells her if you want to continue working here you have to get along with management five days later on january th in a separate meeting between taurus my other manager but it's my right to basically speak poorly to them and she accused jeffrey daley of holding a quote unquote vendetta against her so it was that e mail that signaled to brand piking that this employee could not work with management it was it was that e mail that as the ael jay noted was the it was the straw that broke the camel's back i think we have the arguments and we have your papers will review them carefully i just you're you're out of time i'm afraid ok thank you very much thank you for your arguments will take the matter under advisement the next