first case of in the morning and the letter b u versus image first uniform rental serv  september twenty second two thousand and seventeen a decision and order find that my client's representative brian cunningham did not have a motivation that was supported by a reasonable concern over property interests when he called the police in response to union leafleting activity time oh yes excuse me on earth five minutes for a bottle thank you i did not have a  reasonable concern regarding image first property rights when he called the police early in the morning of september sixteenth two thousand and fifteen well why should we suffer and force the board's finding that there's several responses that first of all there is a fine by the n l r b that we have not contested and that has to do with mr cunningham's efforts to have the police exclude the union representatives from the program from the public right reasonable concern regarding image first property interests when he made the call it was or not arguing that he was contesting their findings to motivation based on concerns safety this is simply about property honor we're also not raising these separate concern whether there was a reasonable concern over the safety issues presented at the facility that day are you no question that the union workers were actually going into the driveway area they were making forays into was expressed when he called the police in order to make sure that the union represented respected image first property rights from a factual perspective this case is different than many of the others  which the call for the police was determined not to be motivated by reasonable concern because in those cases such as sprain brook there was no finding no evidence that there was an actual trust pass in this case there is an undisputed  number of four a's onto the private property and from that perspective we think that well even the era of jerry a call before race i think he was saying in effect that look he quote he was disturbed that they were call and then whether that particular motivation was reasonable so on on the subject of component on that on that finding what do we do with the n l r b having a doctor the l g s findings incredibility findings which surly because that finding seems to go to the actual motivation and if this finding is based on credibility that the subject of motivation of cunningham was exclusively to remove them from the shoulder then even if there there would have been an objective a reasonable property interest as to other parts of it if that was not his actual motivation we aren't we aren't going to the time that mr cunningham made the call ok at the time of mr cunningham made the call to the police he had already observed the union flitters on on the company's property on the curbing on the grassy area and entering into the driveway in order to leaflet vehicles ok he then he called the police the union the union representatives retreated to the shoulder and even after the call to the police the union representatives continued to enter onto the property by leafing mr cunningham observes all of that those actions he didn't express his issue or concern about the the excluding them from the shoulder of the road until the can till the police  arrived and in fact i think that if you take a look at the holding in nation's rent where the n l r b specifically found that the employer's having committed an unfair labor practice in that case what they did was they parked certain pieces of equipment property of a nation thread there was a specific finding by the board that the inflation was continuing and we don't have that finding here that the what was continuing are the thing infringement into private property what was continuing i would disagree think i think the holding in nations rant with a finding is that after the call to the police was made that the car that was parked on the private property was moved and i think that finding you can you can follow that through because in that case there was a an expression of concern about whether the union representatives were monitoring the police scanner but the finding was the can be infringement was continuing up to the point that the call with me to the police and here i knew me took issue with it and  if i'm understanding correctly it sounds like your argument is substantial evidence does not support the actual fact frightening but don't we have here a fact finding that after being asked to move to the shoulder that  our position at the bottom is that is that a person in mr cunningham's position seeing union representatives for inger entering onto the company's property on a number of occasions would have had his call to the police would have been motivated by reasonable concern about those private property rights and i think that if you look closely at the administrative law judge decision and the record he when he when he finds these forays he was he was not precise in terms of of the four a occurring before the phone call to the police before a after the phone call to the police but before they arrived or otherwise but i think if you read the record as a whole and he and the admin and the and the l j's failure to try to tweeze out all of those various for his i think the reasonable conclusion that you draw is that they continued more or less sporadically throughout the entire transaction just for two years given that the for a was was so brief and it was on a driveway that came of hanover case for example and in indio grocery there was even a fairly detailed analysis of what state property law said with respect to public rates of way easements etc this case doesn't present those kinds of issues  because there is specific findings that their work trust passes and in both snyders of hanover and in the india grocery cases there was not a specific finding of trust passed and in fact the board decided both of those cases on the grounds that the employer had not demonstrated it had a right to exclude the union leaflet or is or where the picketers from those qualify public areas this case doesn't present that issue because as i said there is there is a a a substantial and  detailed part of the administrative law judge decision where he says this occurred on the company's property so with respect your question your honor i don't believe that there is a a de minimus exception where there is a public radio where the shoulder went right past there  and anyone who wanted to ride a bike deliver the mail whatever kinds of other examples you know would be might have do you know if there was a finding that they were obstructing in any way stripping the passage of traffic or stripping there was there was no respect to employer private property rights and those yield only in extraordinary cases i don't believe that a situation on this where the leaf litter is or are attempting to deliver materials to employees on a unusual for any person to cut across the property but but to take your question and put it in the context of where the property is if if individuals were traversing on prospect road in either direction on the image first side of the of the road the the the the shoulder is is very broad and i think  that page five seventy seven of the of the record there's a diagram that that it's marked that shows that the shoulder was ten feet wide so this is not a situation your honor where there was first property itself the testimony all was that this activity occurred on the shoulder and although under pennsylvania law the image first owned to the center of the roadway as we acknowledged that infront of the administrative law judge we made to that there's a question of whether one force would view this as a trust pass and they did not in this case if they did not they took no action in fact nations rent the board is clear that the fact that the police failed to take action in response to being called also help us address and that goes back to my question earlier because you are you making this part of your argument what what a reasonable employer would have thought but that the predicate for any reasonable this analysis decision to make a finding that his actual and exclusive motivation was to remove them from the folder and that that is not supported by substantial evidence because the record suggests that his motivation was broader than that it's cracked or is that is it that the board the l g found that his his interest was removing them from private property had had thought amongst ourselves it wouldn't have been nice if mr cunningham was a real estate professional or or a lawyer and was able to articulate when the police came in the hurly burly of all this activity to say you know i don't want them in the curb barrier in the driveway anywhere else they can do what they want and and and i think that that's that was part of his motivation when it went when the issue arose and i think if you if you read different ministries of larger decision that when mr cunningham arrived the the union representatives were on the grassy area and one of them actually attempted to leaflet him as he entered into the property and went into the driveway area so he had concerns about that part of the image first property in fact it would sort of be counterintuitive that he would let them be there right and while simultaneously trying to exclude them from from the shoulder so i think that the way to look at it is what was reasonable for someone in mr cunningham's position at the time that those events unfolded seeing the union representatives on the company's property as found by the yale jay and also on the shoulder and i think that his his motivation was reasonable in trying to enforce if we can say this the lesser included aspect of the property right having to do just with the part of the property that's not the stuff that's indisputable control by him first thank you thank you very much you three different minutes given that we went over time we hear that your colleague may please the court kelly has been here on behalf of the national labor relations board i think given what you've just been discussing that we should start with the facts the board affirmed the administrative law judges findings that when brian cunningham called the police the union representatives had already moved to the shoulder and they were made on the shoulder they o j found that they counsel could we could we step back to the board's actual decision because we have to evaluate this in the framework of looking at the defense with this subject of an objective component what do we make of the board's statement that cunningham was not motivated by a reasonable concern over protecting pressure this is language that's from cases such as nations france and i believe even earlier cases like great american that when there is an issue of nine employee union representatives and employer property the question for calling the police whether that's lawful or unlawful is whether or not the employer has a reasonable concern and the board gave examples of that reasonable concern being legally protected interests were safety what was that was the point here making a finding that the actual concern was exclusively their presence on the shoulder and that that was per se unreasonable because it wasn't private property or was the board making the finding that he had a more general interest in the private property including the driveway in the grassy area but that that protecting that was not reasonable given that they had gone to the shoulder by the time the police  believe that on the facts of this case the answer is the former that what the board and the algae found was that mr cunningham's belief that morning was that image first owned the property to the center of prospect around and what he wanted and what he asked the police to do was arrested representatives because they were on the shoulder remember officer of a line of testified when he arrived and asked what was going on mr cunningham said we own to the centerline of prospect road the on the shoulder and i want them arrest him just hypothetically what if he had said i see them on the entrance to our property i see them on the driveway and then call the police look at that would that be or that might cunningham first arrived he testified in the union agent's representatives agreed they were on the grass the grass is image first property so that's a that's a factual finding he asked them to move they moved to the shelter when he went back to them the second time they were to the extent that there was some violation by the labor employee's going i'm a company property that he had a right to call even though maybe they did he didn't see it at the time the call but they were there the allowed to be on company property doing labor work so that why should we send this back to the board and have them to valuate that aspect of it just that there was some violation by the company property now what's wrong with us sending it back to the board and have a m p o with whether or not this was a violation or not of the labor union oh i think this board in this decision agrees with you or i or when they said that before he called police the union had moved to the shoulder of the road this is what the l j found that the union representatives themselves testified without contradiction that after he asked them to move to the shoulder they moved to the shoulder at the time he called police they were on the shoulder when the police arrived they were on the shoulder before he called the police who were in the way they were they testified that they would sometimes step on the curb between the shoulder  going to the grass to talk to kind of him and that's this private property the curb and the grass are private property and their statements that and they were going into the on the curb and the driveway are not limited to the time period before he called the police right well i think they are you are right if you read the l g s decision that says that they testify without contradiction that after he asked them to move they stayed on the shoulder  question is whether these findings are supported by substantial evidence and in the actual record valentijn says that that it was between five and ten percent of the time during the entire time they were there that they were stepping into the curb or driveway and even while the police when the police arrived officer said to me testifies that there is leafleting going on and he sees one of the representatives going to an area that he acknowledges on cross examination may have been on private property the a l j says that that was more likely than not that representative going into the driveway so when we don't have this had been in terms of their activity by their representatives themselves when cunningham expressly testified that even after making the initial call to his supervisors continued to see them coming and get asked them to move to the shoulder he continued to see them coming on to private property before he called the police and the officer who arrived representative more likely than not stepping on to private property when the police arrive why isn't this on all fours with nations rant that the violation of private property interests is ongoing well first i think i need to we need to discuss what's actually in the record brian cunningham did testify that he saw them continually going into the driveway an administrative law judge discredited that testimony if you look at pages five twenty to five twenty two of the joint appendix he says that after after they were on the shoulder he asked them to leave or he was going to call police he went back to his car and waited for the police for half an hour and he did not look at them that's type index five twenty five twenty two so while he testified on the stand that he saw them repeatedly going on  on going back into the driveway he also testified that he was in his car for half an hour not looking at them and did not see what they were going to search stutzman at joint appendix four thirty testified on direct that he saw a union representative give a leaflet while she was on the show on cross examination he was asked about that again and pressed and he said he couldn't remember but he never testified that he saw her in the driveway there but you're did they got to deal with it now they can't deal with by saying they can deal with by saying they disagree with this it's clearly erroneous they did do that they dealt with it by saying my just been doing nothing with it they avoided it back to the board to let them deal with what is the company does not want to be doubly sanction for conduct which if they were trespassing and there was  the and that's the reason the police are called if they trespass while you're at let me say all day explicitly found that that was not the reason the police were caught they all j's explicit finding is that the police were called because they were on the shoulder this is what they all j found this is how how do you suggest we deal with the temporary incursions into private property i think that from the board's decision that the temporary incursions occurred prior to cunningham asking them the second time stay off our property when they were on the shoulder right so he goes back to them and says you need to leave they're on the show you're saying they're going to cunningham spoke to them and they did not come on that's how every day all day is decision that between the unions testimony and the police testimony that they were on and other representatives testified that they on numerous occasions for five at one point she says that it was five to ten percent of the time they're stepping onto private property and that's not limited to the time period before he calls the police in fact again the we have officer substance testimony where he says on cross that what he saw in terms of ongoing leafleting may have been on private property but he didn't find it to be and neither a police officer found a trespass violation and certainly cunningham didn't call their trespasses right but yes i think that i mean certainly the the dissenting member wrote that and i think the majority agree with that so that the the question is not whether it should be characterize representative going onto private property when the police officer arrived doesn't that make clear on the record that these incursions were ongoing that is the only incidence i can find and i cannot find any basis for it in the record instep and certainly does not testify that they were in the driveway and that cannot be the basis for the phone call to the police because it happened after the police were there and there has to be a reason to call police to protect legally protected interests what but they don't want to also pay for the part where the able did as a matter of fact that there were trespassers whether we're not if you don't think there were trespassers then you should already not to the board because we can't we don't decide those things here but the record before the board was they were trespassing years by the union and the board did not deal with it well the question under india grocery outlet and nation trent is was there a reasonable concern at the time they called police in the algae is very clear that he found cunningham called police because they were on the shoulder not because of any driveway incursions and that might be true but if they were in company property they also had a right to goods of all they did you for that extent they don't want to be sanctioned under the n l r b for making a call which was it part because they rock trespassing on company property but the a l j made no finding that their phone to call to the police was based in part representatives removed from the company's property in my opinion i believe the respondent one of the union representatives removed from property that mistakenly believed included the shoulder it that seems to read by its terms that the l g is finding here it wasn't only that he wanted them removed from private the private property it was off so that he had a mistaken belief about the how far that private property extended but why would that mistaken belief negate the reasonable miss of a private property interest in the other parts of the private property ok so net net if i understand correctly now your question is about the reasonable ness of his belief in their property line is not binding as it's the findings as to actual motivation because what that actually said seems to indicate he had knowledge is that cunningham had a concern about the proper about incursions on the private property generally but then is going on to say that he believes that he one of the removed from the shoulder that's true insofar as it goes but it doesn't change what seems to be in a o j finding that the actual robot yes i mean it's certainly i think there's no question about that they do except that the they conceded and that i think there's any question that they can if they do not have a property right that gives them the right to exclude anyone from the use of the shoulder when it's  open in the tories use of the public for mailboxes in bikers and pedestrians i don't think there's any question about that but there are no board cases that i can find where the board talks about the reasonableness of the belief of the exten property right or the party line so all of the cases about supermarket lessees or double eagle casino trying to keep people away from the front of the casino the question is never did you honestly believe you could keep people away from the fr at the casino the question is a factual one could you or could you not and those are that i have looked and haven't found any case where the board or court is inquiring into the reasonableness of the belief because most people don't there was an ongoing trespass and the board found that the employer had a reasonable concern for about two things one he believed that the union was using police scanners because a soon as he called police they moved their car so in pennsylvania  jailable he also had heard complaints from employees that the union was following employees home and the union admitted that they were following employees so he the employer had two very reasonable reasons for calling the police and at the time the call was made it was an ongoing  and concluded that that you know what substantial evidence supporting decision or that it was in correct as a matter of law is is that is the proper disposition to deny enforcement of the petition for review and that's the end of the story or is is there a reason to remember here is there a concern about what the board actually held that the board's factual findings are not clear to you then you should remain answer them given there is a record here and if the board was not as clear as it should have been then we would ask for a man to the board and can look at those issues for you but i don't think there's any real dispute about the legal issues in this case i think it's more a dispute about the the factual issues as a factual issue you did i that at any time that there was a trespass good reason to make a call at any time how could they be sanctioned for that i think if that had been the reason he made his call then we would have a different case but that's not what he told the police and the police gave him the opportunity officer vermonters said you know if they were in the driveway that would be a trespass and kind and was silent so if that had in fact been his motivation i'm not sure we would be here today his motivation as he told the police was to get them off the shoulder and they do not have the property right that allows them to exclude people from the shoulder of them or that they had because i think they agreed to a summary a firmer of the shoulder they agree about and that's all what i found i just don't want the balance of it to be but the board's finding is just that they violated the act by trying to get people off the shoulder there's no board finding that the violated the act by trying to keep people out of their driveway that is certainly not the board's finding cancers again to go to the disposition or if to the extent there's been a concession  petition to enforce the board's order or we're denying the petition to enforce i believe in that brief we asked for some reinforcement on two separate issues because they had not raised them in their brief and that's prohibiting union representatives from being on well and i think now i'm just probably repeating myself because that was not the reason the calm if that motivated his calm then the board most likely would have made a different decision everything he expressed to the police everything he said to him to their union representatives was that they needed to get off the shoulder or he would have to leave it assuming you're right that what's the motivation of not sure that assumption is correct even assuming what difference does it make what the subject is they have a valid reason it all comes down to sort of the bigger issues about calling the police and calling the police to remove union peaceful union handlers are not blocking traffic there's no safety violations is incredibly courses and there has to be a reason for calling the police to remove peaceful union handlers and that reason has to be a reasonable concern such as safety early going protected property interest and on the facts of this case when he called the police there was not a legally protected property interest at stake council what will we we will this is part of what we're called to do to make a determination about what the board and the game found as to his actual motivation and then the reasonableness of of that given the statements in their opinion in the record but as i read the board's brief it asks us to enforce the board's order in full and deny image first cross petition and i view that indicates to me that if we did not agree with the board that the disposition here would involve denying enforcement of the board's order but i think on the first two boards findings there's not contested so there would be summary of  those cases there was a determination that the contact with the police was not reasonable but in those cases there was not a finding of a trust past at any point in those cases involved as i indicated in in my in my earlier remarks that that there was a dispute about whether the employer had the right to exclude people from certain kinds of property qualify public property that's not this case i think one of you asked a very good question the question was if mr cunningham had said the union leaf litter on the driveway or there on the grass with would the result of this case been different and i think that gets to one of my points here and that is what was it reasonable for mr cunningham to do on  on that morning and i think the focus on the precise moment when he made the call it does a disservice to the concept of what was reasonable over a course of time so it in the minutes before he made the call he observed the union leave footers on the company's property both on the on the curb on the grass and in the driveway where this is it still does point it out and that's based on kind hands testimony is observations he made the call five four days after he made the call and one or two for his after the police arrived didn't you report that he did the union workers were the shoulder of the road when you call no one he committed because there's no no testimony in the record with respect to what he actually said when he made the call to the police he made the call to the police and then there was a fifteen or twenty minute hiatus between the the call and the response and during that period of time  from the excerpts from the administrative law judge is testimony that we believe that the administrative law judge found that that mr cunningham called for a couple of reasons he certainly wanted to police the the  curbing the grass and the driveway no question about that he went further than the law permitted and again no question about that's the that's the part of the piece that you've questioned a council about the summary affirm itself but but there is a part of his of slightly differently so that the one issue is after the police arrived mr cunningham asked the police to exclude the leaf litters from the shoulder that we don't contest the board's finding of a violation with respect to that the violation that contested think with respect to the contested issue i think it was an appropriate disposition would be for the the court to decide that under these specific facts where there's no dispute as to the underlying trespasser e activity that this case falls squarely within nations that's correct to the extent there is a dispute however about what the actual finding was oratorial as to his motivation is that a reason to consider sending it back to the board i think in the in these cases your honor i would say the answer to that is is no there's there's no dispute as a as as everyone has discussed this morning that that there were four reasons to the property that they were observed by mr  mr cunningham and that he made to be made a call to the police after observing them we would think that that constitutes reasonably reasonable behavior virtually under any who ever the actor may have been that  that when he saw that he was privileged to make the call to defend his employers property interests if we had a clear cut finding record that indicated there were four years on the private property mr cunningham made the request  off of private property and that they then did and they moved to an area that was unquestionably public property and they stayed there would it are you arguing that that situation is one that would involve a reasonable concern about private property simply because of their original conduct if they had complied with his request i think that's not the case that we have here but if if if he had challenge the union footers on the first occasion and they had then retreated to the shoulder and had remained there i think an argument could be made under those circumstances that his his call for the police would not have because because recall he challenged them they went to the the shoulder he observed further conduct consulted with his superiors and then he called the police so if there had not been that continuing course of fo that more likely than not that it occurred is it is a factual finding that it that it did i mean the under the n l r b these procedures to the burden of proof years are products of evidence and and you know the preponderance of evidence standard another way to state that is more likely than not that it occurred so we view that as a factual finding not a stray comment that is to a matter of interest to the ministry of lodges that that's a that's a fact finding fact it was adopted by the