thank you your honor may please the court daniel or meet us on behalf of the petitioner corps do restaurants incorporated who are all referred to as corps do or my clients your honors there's three issues that i will primarily focus on today however before i address during the evidentiary hearing he perjured himself not just once but twice and admitted under oath that he lied to my client in an attempt to sabotage their investigation into a critical issue related to his employment misconduct this court was generally give deference the credibility choices given by the ailing j unless the court finds that the choice was unreasonable contradicts other findings of fact was based on inadequate reasons or your honors now move on to my to remain legal argument that's a strong start and it's certainly what you said in the brief but to label him a perjurer so that he wouldn't one wouldn't be able to validate his credibility that's that's sort of begging  question because the usual jay in the board made a finding that in fact it was a sham investigation and that the label perjury was a setup it was a sham so so they don't accept that  one but separate from that confirmation from raw meat is that he lied to my client as part of the investigation its core do its position that we we understand the board said that that's a sham investigation but we didn't have the benefit of his truthful statement or untruthful statement that we acquired at the evidentiary hearing which just confirms that my client's conclusion and at least one of the basis is to terminate him was untruthful this was correct but in addition your honor to answer a question further we're not just relying upon the fact that mr i mean it's affirmed that he lied to us during the best case and he perjured himself on two separate occasions during the l j hearing on its own separate from his employment with my claim materializes that he denied that he was trying to access other people's personal records and that was fleshed out in the hearing extensively you got the right woman text that imply that he did but then is text her don't suggest that he testifies that that was what he wanted he gets credited and yet he's fired for having done that and when you add on to that i think the transcripts unmistakeable that your clients wouldn't let him get an attorney he kept asking for one city put his story in writing with an attorney and it undisputed that there was the access of reitman's phone with a password and all of that could bit he was not truthful to my client as part of that investigation additionally this this court has said that unless there is corroboration from someone who's perjured himself and lied then there needs to be other distal ever evidence to support that so going to the text message from reichman that's the only independent evidence that my plan relied upon which it has a right to the borders of applying a court standard in relation to our investigation and a truth telling standard as if this is a criminal case this is an at will employer situation where we don't have a benefit of him being under oath and we don't have the benefit of written discovery and litigation we have to take it step by step to make our own conclusion about whether he was untruthful your honor in in the jail j evidentiary hearing separate from everything else you mentioned he states that he was not truthful to mr askew no said the person who questioned him during the investigation that that was a lie did you answer the questions related to court do is investigation truthfully mr ameda said yes it wasn't until we had documentary evidence to cross examine him where he admitted under oath that he lied about that prior testimony and of the person that interviewed him on two occasions allegedly asked him who else is part of this investigation as we know in this type of borgen over time lawsuit that type of an interrogation question is illegal and if that testimony would have stood would have been enough for the board to find animus against us luckily enough my client interview i'm sorry my client recorded those two interviews with romney has to demonstrate that that allegation was merely an attempt to in inject an image that never occurred inject allegations that never occurred luckily michael knight had had a recording to disprove what he was trying to inject into the record liar many times obvious see him wasn't convinced and instead saw that this was a sham investigation could you speak to the issues the facts that apparently he was refused an attorney several times and and whether or not an inference can be drawn against your client from having used the password to get in writing his phone ok on issue number one it's a gorgeous position that it's not a legal requirement to provide an at will employee in a non union setting to provide him an attorney and has a right allegations of misconduct and that's what occurred here and we know that just as we use the word liar the board loves to use shadow investigation and they hold us to a fortune one hundred company where a local restaurant in houston texas that was reasonable in relation to investigating this investigation i've investigated the allegations of raw meat is but there's no requirement your honor to provide him an attorney during an investigation and candidly in texas if that's not the proto normal protocol in these types of situations because of a variety of reasons from a practical point an employer wants to find out what does he have to say now w sort of snooping surveillance techniques those in analysts can be drawn inference of and was can be drawn from from the facts here well that's the board's position i would agree with that because i do it disagrees with that if we take a step back and look what happened we have a general manager of a store with an assistant manager who had prior access and need a password of naomi reitman's cell phones we're talking about another piece that we have to understand is that popped up on her cell phone included his name excuse me and beyond that he he testified that he looks through text messages the case law in this circuit and the board from what i understand does not  interrogation or surveillance because it's not in any way prevent teen at least in this situation remedios or any other person from engaging him in concert or protected activity he was simply looking at or text messages i would agree that's what the board the majority the board's argument relies upon remedios his testimony and i think it's very important to focus in not so much on the text message and the allegations of a sham affidavit or anything else but whol it's clear he perjured himself and he lied and there's no way of getting around it around that so that said the board has made it clear that the testimony of her perjury is and haron lee unreliable and absent corroboration should not be the basis for finding a violation of th additionally it's contradictory for the boortz reliant i mean is this testimony to stablish animists on the one hand and then dismiss his testimony and say he misspoke when he lied about my client asking him questions related to the lawsuit and this is why the th circuit has said inconsistent treatment of evidence to ministers the court's deference to it and that evidence does not constitute substantial evidence even under deferential review your honor what the board doesn't want to talk about is it's unreasonable and there's inadequate reason without their consent and putting those on a flash drive you know what the last point on animists your honour's the court has stated that the strongest form of circumstantial evidence to establish animist is to demonstrate the close proximity in time b someone's protected activity and employee discipline excuse me the record in this case shows there's an eight month gap that occurred from i mean this is protected activity of filing a lawsuit and instead in january and then getting terminated in september that eight month gap it's yours now on to my nd point well before you get on to that i mean you say a month gap from lawsuit determination but in fact the records pretty clear that others he's talking to others and others are joining the lawsuit as far as late as september would you say those are protected activities that's exactly right your honor so the record does show that he testified that he allegedly was talking to other employees and allegedly  at encouraging them to join that's protected activity that we had no knowledge about in fact there's testimony that he did this in the parking lot behind some trash cans in order for someone to be protected technically under protected activity generally speaking that employer needs to know that that a person that employee engagement protected activity there's no evidence in the record that we ever even knew he was talking to employees and number two bit he was encouraging in fact i think there's evidence in the records that the to the opposite end we transferred him during that year period plus or minus to two or three different locations i believe that there was a supervisor's meeting that occurred in june july or as did discover that he was doing ongoing concerted meeting other employees who then signed off that's wrong that's not my understanding your honor and in relation to the talking we never knew about that there's no evidence in the record that we knew about it and then separately of the board makes the general argument but there's also no legal president for this court to rely upon the fact that let's for example say i joined subsequent to romney just following suit the fact that i joined does not mean that romney just benefits from my protected activity  they try to make that argument we don't believe there's any at circuit or any other case law that support that position you're on my nd point focuses on core do is affirmative defen and i want the court to focus on one issue that the board overreached on and that's in the record repeal seven hundred and eighty seven thousand eight hundred and twenty five dollars they specifically said that an employee can join a lawsuit or follow a collective action seek the records of other employees lie about it and be protected under the act by that that's not a rule this court wants adopt it creates liability confusion for employers and no protection from data remedies the seeking in this case in addition to that case law your honor we believe berkshire farm applies in this case because of his misconduct that we discovered after the fact meaning that we found out that he lied to us as an employee because of that berkshire farms as we can forfeit his remedies because we would have fired him if we confirmed that he lied to us in that situation so your honor there's two basis regardless of the outcome of this case where we believe the court can deny his remedies because of his serious misconduct your honor and with that  is made that finding the burden having shifted to the employer that the employer has failed before the board to affirmatively approve that it would have discharged mr ramirez regardless of its protected activity so before going into detail on those two points i just want to respond to the opening argument on the question of whether mr ramirez lied at the end for labor practices earing or is overall credibility st of all i just highlight to the court that the standard of review for the board's credibility findings based on in person credibility determinations is extraordinarily lenient and the court generally will not upset those credibility determination that is an extraordinary circumstances but i think more importantly in this case it's important to employer attempted to ambush or a general counsel with the fact that a bad these text messages which no one knew prior to that and what the employer tried to do was to introduce without introducing those into evidence to present them in cross examination so the counsel for the or its general counsel's case and counsel for the board general counsel of jack did and said if you want to introduce this evidence you need to call these witnesses as part of your defense case which the employer counsel appropriately saying this is not this is outside of the scope of direct and is inappropriate on cross examination really implore it to be asking about these text messages that are of counsel for the general counsel's x so it was not an wouldn't do it because it's wrong and had in fact he done that and then denied it to them well then he would be lying and they wouldn't have a section section a violation because they wouldn't have been pretextual they would have been firing somebody who sought to do board also separately found which is a distinct finding that at the time that he was discharged the employer did not in fact reasonably believe that and that finding is based on a wealth of evidence including the scope of the investigation the fact that they waited six weeks  manager which i think it's important to emphasize mr eichmann was who he reported to do at a restaurant and even assuming that the asset manager paid can you confirm other employees ours as well she said the only evidence we have from the record even crediting the specs messages is that he dropped the issue he did not press it or tried to surreptitiously acquire the documents and under florida law which the employer does not meaningfully contest other than indicating that it disagrees with the board is found with that when an employee makes a request for that matter that's directly connected to protect a concert activity simply requesting to a manager is distinct from actually trying to access records surreptitiously for where the employee actually broke into a supervisor's office and stole the documents here there is no such evidence and rd even assuming is even setting aside both of those findings of the board the board also found that even if he had engaged in this misconduct the employer simply failed to satisfy its affirmative burden of proof to show that it would have normally discharged an employee who had worked at these restaurants for several years and had no prior disciplinary history for this one infraction of ass and appropriate or not question to a manager and not receiving any documents not pressing the issue for the board's finding that the employer had failed to case precise was actually a small part of the board's finding that mr mir is protected activity was a motivating factor and so to your st question with regard to the conduct of the interview with mr  espinosa as the board found if the court looked at those transcripts of the interview and read them as a whole i think substantial evidence supports the board's finding that it is not a fear that mr espinosa and interview were design actually find out the truth about this alleged misconduct and in fact mr espinosa was probing beyond that when he knew as a matter of fact that mr reitman had called mr ramirez or at least tested him about the law suit and about the possible involvement of her husband and that mr ramirez was playing the role of the point person for this protective lawsuit and mr espinosa nonetheless prevented him from contacting his attorney attempted to pressure into him into providing access to cellphone went down a list of questions basically indicating a willingness to conclude that mr meir is lying rather than trying to actually find out whether there had been an attempt to access sure there's not really any evidence supporting that mr burroughs testimony with i think it would be suspicious that the employer would not have included that text message in the exhibit that it introduced but even if that were the case it would still be the employer harvard animal specifically talked towards mr ramirez at the point person for this lawsuit and that it was singling him out to try to investigate him and find offensive based on the evidence of misconduct there at a very least and forty two or the board specifically said regarding timing employees continued to join the lawsuit right up until three days before this interview about misconduct four month gap in time supported an inference abandon this where an election had occurred four months earlier but objections to the action were still going on and so the force of conduct was still active and it's still reasonable to infer that the employer's concern over that contributed to his decision to start an employee and also for now that i believe in the opening argument the employer has not taken the position for the st time that the lawsuit in addition i would submit that is reasonable to infer that when you have all this evidence of an individual who is spearheading like to wage an action and employees continue to join exclusively at the restaurants where he works or has recently worked where he is as a board found essentially spreading the last few to more and more employees is it reasonable to infer that the employer would have known more employees continued to join the last two that mr ramirez was still speaking to that there's also the very fact of the text messages exchange that the employer is largely basing its case on which makes clear that mr brightman on behalf of herself and her husband who so i would submit that that argument is waived but it's also simply not the case that substantial evidence doesn't support the board's finding that the employer had knowledge of this continuing effect a concerted activity and also point out that the board relied in addition to finding an innocent on the stoep of mr espinosa interview and the fact that it was not designed to find the truth but in fact was seemingly designed to probe mr  about the last two i don't believe the employer as really responded to that in its library i'd also point out the significant circumstantial evidence of animus that the employer is making a big deal that  allegedly thinks that mr meir is trying to access confidential employee information in early to mid july and that the employer took no action whatsoever for six weeks which does not support the narrative at the borders trying to time merely suggest that when the employer reached the breaking point where more and more employees continued to join the lawsuit that it decided this this actual claim of misconduct from two months earlier it was going to be the basis time you have left could you lose a day for me what the present pending motion for simple mental materials from your standpoint what is it really relevant to and what's the concern yes support of exceptions is not formally part of the record and there's a number of reasons for that one of which is that parties are in fact required to raise any reviewable arguments in the acceptance document secondly the board has particular procedural limitation for example there's a page limitation on the exceptions document for a combines document and so anecdotally i've had cases where employers have filed a brief in support of except are several one hundred pages long whereas normally the actual exceptions themselves are limited to fifty pages and so that is not formally part of the record as i believe the sport recognized even of a client go as  just to conclude very quickly so we would submit that the breeze of support of exceptions does not change that argument because they did not ask for the brief in support of the counsel for the general counsel's exceptions we would submit that and we object that in addition to this investigation your honor we want to put things in context you know the board want to have it both ways our h r director was out of pocket when this issue arose it was restaurant week in houston texas which is a very busy month for all restaurant tours and in addition to december your honor we have the c e o trying to manage an entire restaurant in restaurants in addition to this issue it went to i t v for about two weeks and then ultimately we requests of those records without the consent of those employees we've heard the board say that it's protected activity whether or not he was asking for his own records is really a red herring what the issue is is that he sought the records of other employees without their consent and when he was questioned about it twice he lied about it additionally the board has held that romney has was entitled to lie to shield is supposed to protect that activity of attempting to obtain other employees payroll records that's not a role does court wants to adopt the conduct is not protected the conflict contradicts the board's reasoning in relation to his request because it was not protected and it was fair tish's your honor just on an issue about whether or not ramirez had a right to an attorney that's legal precedent relating to union representation issues which isn't present here this is a simple at will investigation of a company and to him to misconduct  you know unions were not present in no which when it was necessary in the situation note that the board correctly states that the male j s credibility determination should be upheld absent in extraordinary circumstances your honour's perjury it's an extraordinary circumstance if any employee asked to get the employer records of coworkers without their consent for whatever reason he was going to use it that's also extraordinary circumstances data breaches in today's world there's too much liability at stake and that's not a rule the court should implement your honor in relation to the brook shire case that we both talked about that four month gap is incorrect because in the the court looked at a new act of protected activity that didn't exist in this case meaning what happened there was the employee initially engaged in protected activity and then stepped out of that box and engaged in subsequent different protected activity by filing an employee safety complaint here all we have is simply someone engaging in protect that to activity by filing a lawsuit in january and then getting terminated eight months later we still stand by the fact that that's an eight month gap that does not a that does not creating imprints of animist or other points here before my time is up the fact the board wa only wants to allow us to have any reason to terminate if romney does was successful in his attempt to steal those records that's really a moot point core do it did not see any difference between effort and attempted theft any employer put in that situation would have terminated i mean as period and going back to whether we even set forth our firm defense burden we most definitely did by presenting evidence that we terminated other employees for minor instances or other instances of death such as stealing beer or alcohol and for terminated another manager the board is holding us up to very high and we're those that are similar to romney does this conduct if we don't disturb the fact finding that he didn't try to steal other people's records what misconduct of his would you point to other than his answers to those this question was other than his answers has been six questions well you know he sat he was trying to sabotage our investigation by thank you and your honor i know the board had at least a minute or so to talk about the motion we recently filed in relation to the record on the peel that you want to hear any argument on my by my side here ok thank you you