response to cross petition so this case your honour's is about an employer making a managerial decision to discharge marcus acosta and mr acosta and the n l r b arguing that the discharge violated section eight a one of the national labor labor relations act but the vialli section eight a one in destroy an employee the employer the employer have discharged this individual for engaging in protected concerted action this court or it even has to be concerted action to be a violation well and violations happen without concern about what your authority will hear first and in terrio knife this is this court second circuit justice friendly emphasized that the courts in the board must closely it here to the language of section seven particularly concerted action he was explaining that the history of the statue was based on organizing employees wanting to create a union picketing so he saying it was born out of the organized of the statute that it that is for them and if it's protected it's concerted activity for them you are dealing us that there is no precedent of this court in which a violation has been found based on other than concerted action no no then there is an exception and it deals with an overbroad policy so now  the employee engages in activity that violates that policy and the employer discharges that employee the this court the board will say could say yes this is a violation but why what's the purpose behind the purpose is to prevent the shilly of other employees engaging in protected concerted activity it's all about if it's all about concerted activity one is the your salary or the working conditions or anything like that an employer and employee or an employee refuses to be bound by that and he's fired and you say that is not cannot be a violation of the of the of the statute because well that's not the case here if ellis what is the case ok here are the employees it's undisputed the employees were discussing their wages it's undisputed management encouraged its employees to talk about working conditions it's a progressive organization that wants to understand its employees it was needed to in the record by mr acosta when he was examined at the hearing he it mig yes i talked to my colleagues about wages ice management encouraged me when i went to them management said go back and find out what other issues regarding your working conditions so i better understand it the issue here he was not fired for talking about wages he was fired because he had a history of needle in management of other employees from the gaging in this action other employees had no idea that there was such an objection this employee had a history of need a ling management this was just the last act that she did again to create a problem so the confidentiality agreement for employees from discussing their salaries side discussing their salaries with other person is actually no if you look at the statute i mean if you look at the statement it dealt looking at ok what i should look at well must regard all nonpublic information intended for internal purposes to be an agency trust artfully drafted the action by the employer in this case would have no chilling effect on other employees engaging in protected concerted activity so it is no consent concerted activity and there's no chilling of concerted activity we're now reaching beyond what justice friendly said needed you needed to adhere to the statute so supposing a group of employees wanted to say to the outside world this employer is forbidding us from telling you well with this employer is requiring us to work for only seven dollars and fifty cents an hour are they allowed to do that to tell the outside world yes they should be allowed to do that they should have and that is tell them that they're not allowed to get this you could argue that it wasn't artfully drafted but again that read it and tell me do these words tell an employee you are not allowed to get together and carry signs of clearing to the public we are forced to work at this for this employer for only seven fifty an hour are they allowed to do that or not according i guess to the language of the policy i think you know could create some m big ambiguity but that wasn't the discharge even if it's only an ambiguity is in that would gives rise to a chilling effect it would only give rise to it could give rise to a chilling effect but not in it certainly not in this case because he was not fire action by the employer could not chill would not did not and would not shill other employees this guy had a history of insubordination he would ask him to do a presentation and he said no i'm not being paid enough he's constantly need a ling management this is allowing the board to come into our place here and tell us you're saying the rule and they will kill something he's entitled to do but he wasn't fired for doing the thing it prohibits he was fired only as you view it for not agreeing to the rule is that your point force for signing it under saying under duress and for all the ot effect noncompliance in effect it's noncompliance all right if he does and if the route if the rule chills and he won't agree to something the chills wise and at the end of the case because it didn't it wasn't going on in reality he admitted that they were talking about really all of the years he didn't sign the rule he didn't agree didn't agree that the agency needs t confidentiality statements because they deal with people with that medical issues and with and whether cave shoes have to do the medical issues of the of the people they work with have to do with the salaries of the people who are employed no know that that was the crux the main part of the confidentiality statement is to allow for for these employees to sign confidentiality statements if they did which they did and mr costin di year before and they were freely talking about their wages management courage them to talk about their wages rule talks about the medical information oh people who they work with all i see is the working conditions salaries contents of employment contract i do have contributors half of staff addresses and phone numbers internal budgets nothing if he doesn't even mention the thing that you say it's entirely about i'm speaking of i'm sorry i'm speaking of the clients of the yes he doesn't talk about that it doesn't talk about her about her keeping confidential their medical histories and so forth you know of the first two paragraphs  again the my focus my main focus here is about the discharge that the discharge was not for him was not because a cost that we gauged in that activity of talking about his wages there was no chilling effect looks like that's what he was fired because he said you just terminated yourself i don't know what was in the mind nicoletti when he said that but when you look at what happened situation but again it's undisputed that it wasn't because he was talking about his wages he was in gauging and not protected activity that all these cases say was necessary there's an overboard policy you engaged in the activity that was supposedly shouldn't have been prohibited and you were fired that could be a violation here he was not engaging in that talking about wages that wasn't the reason much please the court with verdict appearing from the national labor relations board from the discussion so far i can see that the court has a very good grasp of this case i'd like to emphasize a few points in rebuttal to the discussion as occurred so far and my colleague statements the l j with regards to the other reasons that they claim let up in the history of believe is the way he characterized it the l g specifically found that those reasons were contrary to the evidence presented hearing and also in addition were pretextual in other words as a cover for the real reason for the discharge which very clearly hear this is a very straightforward case and very straightforward set of facts in march twenty fourth meeting  and wasn't disputed before the board probably says simply because it was such a clear threat and speaking of threats we can move them to the eighty one context and the language of eighty one clearly says that employers it's unlawful for an employer to take any conduct which can include interrogations statements of various different factual situation throughout the industry that schill or interfere with employee rights in this context when there's an unlawful rule and i think that the panel understands that portion of the board's argument the board will protect employees from their refusal to agree to that unlawful law on the upholding the rule i believe the one of the most thorough cases to review is a sin test case that we've cite the d c circuit case that we cite in our brief on the other hand the vanguard case and this court that was necessary this is a facial unlawful rule can be unlawful on its face and when you're looking at an explicit prohibition on exercise employee rights we look at the the mike which might help if if i may turn to i just want to i didn't get a chance to respond to many of the cases that the other side filed  i just want to note as a generality in every instance where they're citing another case or either citing it out of context or they're citing a portion of the case that involves a different sort of eighty one or eighty three that does require a threshold showing of concerted activity i don't find anything that would fall outside of those two characterizations but i could go in more depth if you like but here i just want to emphasize that the board was authorized by congress to make federal labor policy and also has the ability to define the contours of section seven and here they found it the board has in many cases this is a small line of cases but it's a different one of cases than cited by the other side in which the board will protect an employee for refusing to agree to a lawful provision of any kind and in  that in that sense the denson case of the board cited protected employees from having to agreed to a provision to continue employment they would have to agree with provision that they would work without union representation that's a very clear case that was one of the founding cases in this area in the keys or was a provision that could be read by employees as profit hitting them from filing an unfair labor practice charges but the board and whatever the factual scenario is that runs through these cases the underlying principles the same and the board deals of course as you know with many different factual situations and takes a look at the circumstances and on the evidence as a whole making these assessments so the principles the same but it's applied in many different contexts and here they the context is very clear the mr costa was fired for his refusal to agree to those portions of paragraph three in four that he signed under duress and when mr when he was asked in the meeting the march twenty fourth meeting do you understand sign or be fired what is it you don't understand mr costa actually answered to paraphrase he said i didn't understand why i cannot discuss these things with employees other ploy used the media non employees i thought i had a right that was the statement he made mister nicoletti said sign or be fired again so he signed under duress under duress under dressed you have to realize he was in a meeting with two h r managers one very upset with him demanding he do this signing under duress would seem very appropriate to me  immediately mr nicoletti said you just terminated yourself it's very clear the reason he was terminated was for refusing to agree to the provisions unfortunately from my perspective there was a missed opportunity or that that was why i was fired yes i mean even if it were not very clear from the evidence if the board founded and there was a basis in the evidence for finding it that's correct i wondered if the panel had any other questions about other eighty one cases in their concert activity principle that he's doing ok and i just want to note that in footnote six the board noted the threat had not been accepted to and the other side had a full i'm sorry the board in footnote six of its decision and noted that the other side had not filed exceptions with regards to the threat signer be fired they could a father a motion for reconsideration of the board if they wanted to dispute that or or bring anything to their attention which they also could have done with the board's theory stated in the first two pages of its decision and i see my light is almost up on i just want to make sure that there is i've answered the panel's questions ok well we would like to request that the court in force aborts order in full  so first it is a case that you what is the case that you mentioned in which judge friendly you quoted from judge from the what's the citation of that case on terrio six three seven f period two d eight forty were not cited in council's brief so it doesn't give us a chance to respond but the case is that worse cited they dealt with a different issue this is called the tables dense in air contact highs are those four cases they deal with a different issue the issue is this if in those cases the employees were involved in concerted action they the employer then said stop don't do that concerted action and the employees said no i'm going to proceed so then the employer fired them and looked the issue that the court was deciding in those cases was what's the insubordination by the employee for refusing the direction of the employer did that supersede their protected rights under section seven because they were engaged in concerted activity and the court said would least it wasn't in the is the again the whether it's the second circuit or the board it's either you indeed should not activity or the it again it goes back to the chilling effect is does the employer's action  chill others and in here in these facts with mr hostile and the situation their actions certainly did not and would not chill the other employees from engaging in this activity sorry they cited it in the section dealing with the standard but in their section where they say this is all the rule that expands concerted action beyond what judge friendly justice friendly said it should be should stick employer if that employer fired the person for engaging in that activity that was supposedly approach should have been prohibited right so here he didn't that wasn't the reason he was fired and he was freely engaged in your theory is he he should assign a even though it says don't do something and then knowing that if he goes out and does that he's protected by the ak so your theory is not just an invitation the laws well no i mean here it might my theory is that this the board the board can't sort of stick their nose in here and change and affect our agency's personnel decision when someone is acting alone you know won't action that and was not fired for engaging in something that  was shouldn't have been prohibited so we wasn't he was in gauging he wasn't fired for engaging in action that should have been brave but it he wasn't fired for concerted action he has this admitted there on the least on the record admitted that he needled them he was insubordinate and that he he did sign it but then under duress so in those in that they can go as as the exception as i discussed find it's not concerted activity but it's activity that would otherwise chill other employees from the concerted activity that's sort of where it should stop anything beyond that the board is now really getting into situations that it shouldn't it should only get into situations that deal with again concerted activity this is based on organizing