honors my name is kirk holland i represent the appellate develops corporation in this matter my focus today will be on why the board's decision to issue a bargaining in order in this case cannot be upheld under the law of the circuit first the law of the circuit requires the board to consider changing mitigating circumstances in deciding whether to issue a bargain or second the law of the circuit requires the board to develop an evidentiary record on factors such as lingering effects the impact or effects of any unfair labor practices on the employees themselves and whether the employer has committed any further unfair labor practices are remind me of what happened on that morning in the district court was the d requested by the board with the exception of the boarding order and the board never appealed that determination just remind you what his reasons for not doing his reasons included questions as to the majority status as well as the fact that there was significant employee activity suggesting that they did not want to be represented by the steelworkers union and was good though the employees the evidence indicates in was and some of the evidence was admitted into this record some of the evidence was excluded from this record that the employees themselves in gauged in a significant campaign against representation by the steelworkers and interviewers counsel i believe will address that point in more depth  so at this moment there is no bargaining there is no union that is correct there is no there no recognized union that is correct that has now how far are we at this moment as we speak from the election we are now over three years from the election the election was in february of two thousand and fourteen we're now three and a half years later and how much on over has there been among the workforce which are over one hundred employees who were employed at the time are no longer employed by developers and more significantly over three hundred and twenty employees who have been hired with the continued growth and expansion of this we go plant you know it's very close the percentages are very difficult to understand exactly what is supposed to be compared with what so just to make sure we have at least the wrong numbers down one hundred employees out of the original group of products and three hundred and six hundred brec ok and these numbers that you're referring to are in your brief but not in the record right because you've given updated figures that's correct we had one thousand but what date do you focus on as the date that we should be considering in determining whether the board adequately accounted for changed circumstances and will give you a little extra time thank you donna we think that the relevant time period is both now and the court has recognized that in accepted counsel's representations as to the changed circumstances in arguments such as these and also then at the time the bargaining order was issued by the board and at that time the numbers were approximately two hundred fifty new employees i think the number is two hundred fifty five new employees and approximately eighty employees had left so just to try to keep young we get back to my run numbers question we started with that six hundred people who are relevant to this discussion right and over a hundred have left and you say three hundred have been hired t includes two hundred new jobs and one hundred replacements not necessarily not as specific replacements maybe the jobs of shifted but it's would be double counting to say it's one hundred minus and three hundred plus right we w would calculate the percentage by saying the number of employees that were there minus the in number of police who left plus the new employees who hired which would come up with a turnover rate in this case the real point is that they're all a lot of people who haven't been heard from on and what is the size of the workforce at the bargaining unit now presently the size of the workforce is over eight hundred eight hundred eighteen employees which would also mean that the number of union cards originally signed would be less than a majority of this workforce but so it was six hundred it's now eight hundred eighteen correct and as of the time of the bargaining order you had a similar it's that expansion occurred or is that recent though at the time of the bargaining or did the expansion it also occurred at that time the number of flatly refused to consider changing mitigating circumstances and repeatedly denied novellus is timely and repeated motions to introduce that evidence into the record for that reason alone the bargaining order cannot be enforced under the law the circuit likewise the general counsel failed to present any evidence as to the impact of any and for labor practices on the employees without such evidence the board can't possibly have conducted in dallas as required by this court and without that evidence and without the analysis  board says that the change in that they give back on the terms and conditions of employment on january ninth that occurred was so significant a an unfair labor practice that that knowledge of that would have been you know passed forward through the lore of the with the workforce and so on and notwithstanding the departure of some of the people who made important speeches that were also considered to be  is that these were significant enough and extraordinary enough actions that that would be in that affair lection could be assured even were it to take further account of the changed circumstances and part of my concern in dismissing that as reason is that that the it would be creating a system potentially in which the employer has incentives just to delay and delay and delay and create circumstances that have changed and undercut any sense of punishment if you will for intervening in the election in an unlawful way why why why should we take account of these change circumstances overlook the gravity of the board's findings on the ul piece that occurred contemporaneously with the election first of all the law of the circuit requires the board to consider changing mitigating circumstances as this court stated in windsor industries that's the first and probably the most important reason and second the board presumed dissemination and this court has said in marion or that it will not presume dissemination when the issue is whether or not a fair election can be conducted at the do excuse me but the board did consider it said even were we to consider change circumstances in its lengthy footnote it would find that they would not mitigate adequately the effect of the acts that had been undertaken by the employer wh way is that not enough and so on into this please but no seventeen is completely fails to satisfy this court's requirements for evidence and analysis as this court stated in the heads and threads case the board must take evidence and make appropriate findings i will say based upon substantial evidence with respect to change circumstances and other mitigating factors if the board doesn't take the evidence it can't conduct an analysis and it can't make findings based upon substantial evidence so the board's refusal to six take that evidence and its cursory treatment in a footnote is insufficient as this court recognized in j codey where he similar kind of footnote was treated by the board as this court has recognized in jail em and as this court has recognized in many of the other cases in which it is denied bargaining orders in approximately fifteen cases since the issuance of general jamaica towing this court has denied bargaining orders involving conferral of benefits just like the ones that issue  here and in many other types of unfair labor practices and each time it was because the board refused to consider changing mitigating circumstances and refused to develop the evidence or your record and conduct the proper analysis to justify bargaining or just one question the r ten jury injunction was read to the works no your honor and i thought that's a very significant factor the board in its decision pretends as if the ten j relief in this case was never entered and that it did not exist its undisputed and the l j noted this in his opinion that developes has fully complied with the ten j order if it were over three years now when was the read when did was reading occur september eleventh two thousand fourteen and the reinstatement of mr abe air to his former positions also occurred at that time and so there are no lingering effects that are present in the record and in fact we've had three years of good morning thank you your honors thomas iraq can function again can be half of the intervener employers employees excuse me my clients are long tenured employees at novellus they've witnessed the growth of that plant and the indicated they were actively employed during the campaign they studied the issue of representation by the steelworkers and made a determination that they did not want that representation they were particularly turned off by the local leadership and rejected the notion that those individuals should be their representative they conducted an independent campaign during the two months leading up to the election and they won the election they asked this court for the opportunity to vote again front for themselves and for their many coworkers we believe that the  this court has said that there is a obligation on the part of the board to evaluate not only subsequent circumstances but surrounding circumstances and to take evidence on that issue there is evidence in the record my clients presented a petition signed by two hundred employees that that evidence was generated as part of the ten j injunction and included in this record and in that those employees stepped forward pulled aside the curtain of the voting booth and said we had a fair opportunity to vote in the secret ballot election we were not coerced threatened or intimidated by any conduct action or statement made by any negotiate a contract which the board considers six to six months to a year and no deceit decertification petition can be filed during that reasonable opportunity and then if those two parties come together and reach an agreement the board has a rule that says an agreement is an election bar for three years and no election petition can be filed during that period it's a very difficult position to tell someone who has voted against the union in a very close election that leadership that they specifically do not want will control their economic circumstances their livelihood for four years  and we believe that's wholly inadequate particularly where the the board did not take the effort to analyze the circumstances and in addition to the  subsequent circumstances that novellus council spoke to we believe it's important to look at the surrounding circumstances as this court has said so we're talking about the campaign that was conducted your honor spoke about the wage increase issue that occurred early in january incurred the first week of january there were two months of discussions and active participation on all sides the union had the opportunity if it believed that this election cannot be conducted fairly to to block the election it did not do so the the employees had the opportunity to vote and they should have the opportunity again and i confidence in an analog election we don't think we can support our position based on a union election so we would urge the court in fairness to give the employees a chance to vote again thank you thank you very much from the board may it please the court kelly has bill here on behalf of the national labor relations board this court requires the board to do two things when it's issuing a bargaining order explain the need for the bargain in order and analyze the changed circumstances that might mitigate the need for the bargaining order and the board did both things in this case yes in the past this court has overruled the board because it failed to do one or the other having a hard time finding cases where the squirt has been forced bargaining  with on the one those cases where we enforced bargaining order and on the other hand the remarkably many cases where we've reversed we're getting word right i can't and i will say that if you look if you do put the cases on a timeline what you'll see is that the board has learned from this court's and been missions so how i would distinguish these cases is where the board the board has b gun analyzing these mitigating circumstances as this court has directed it and that's what you'll see in the two so where the board overturns and j a l j found no need for bargaining order and the board overturns and then doesn't explain why this court does not like that and has overruled many of those cases that what a lot of this cases we get over old are other cases are where the board makes no attempt to analyze changed circumstances nothing at all there are some cases like heads in threads and pace automobile where there was a strike that occurred after the unfair labor practices and the board makes no attempt to explain why that didn't show the employees still had a strong affiliation with the union but in cases where the board and these are adults i mean the notion that people can't who working in these circumstances in this day and time aren't people to listen to management on the one sided in the union on the other and make up their minds i mean these are not children now and we're not asserting that they are but let's talk about the unfair labor practices here and and gazelle is quite clear that in order for the named remed record you have these unfair labor practices but you've got a ten jane junction you walked you made the head of the company walk through the workforce and read the injunction  any employee would say we're not we're not naked we're not hanging out here we've got government protection and in addition they're just dramatically changed circumstances which seems to me that the board has totally failed to adequately address those in my concern ok so i'm going to start with the changed circumstances and then you can remind me to point of this all what gasol explains is that after there have been disruptive unfair labor practices the unions majority might in fact dissipate because of the unfair labor practices and where the possibility of a fair election a slight not impossible slight the board can issue a bargaining order remember what happened here two days before the election the top officials in the plant and top officials at novellus came to the plant and held a mandatory those speeches and it seems to me i mean i was hard pressed to find anything that was particularly offensive in the speeches i mean these are not children read this they listened to the  management presentation they knew what they were here and they knew they knew what the stakes were they knew these people have set up in this area and seen jobs disappear this is this is an economically challenge area very thought about anything they've thought about their their future and whether unionization is a good thing or bad for me and the record seems to regard these people as as children unable to make  rational self interest the decision remember exchange parts when a threat is made by your employer it sounds different to you than it does to a disinterested here but then they feed you are you properly made the head of the company employees preached out the union was because they took away the overtime and sunday premiums that was the reason they wouldn't why wouldn't reasonable worker think my goodness if just mentioning a union gets them to turn around wouldn't it be great to have the protection of the union full time there's a lot of ways of reading the record and i understand that we have to defer to the board's expertise in reading the record but i think a lot of these unfair labor practices which you know i would be prepared to affirm on the strength of the board's expertise are pretty close run things the board and this court have long found that threats of job loss of restoration of benefits during a union campaign is a hallmark violation that is highly coercive there is no question about that jamaica towing highly co and on this record this is very similar to salvation army into for derry when you restore benefits you are giving the employees exactly what they want from the union the lesson they learn is that they don't need a union are you saying that in the these kind of circumstances change circumstances with regard to the work force is basically irrelevant i mean the board gave very cursory examination to the changed circumstances and not novellas his efforts to reopen the record it really dismissed the says the board does not consider turnover among the bargaining unit employees or management officials in the passage of time in determining whether i guess warder is appropriate and that's kind of a bald statement that seemed to me at odds with there are still a substantial number of employees who witnessed the euro piece remaining at the plant remember that the issue is that how this court defiance turnover and jail them is whether significant number of those who witness the you opie's have moved on well here at the time the board issued its order that's what the court requires the board to look back at changed circumstances at the time it issued its or eighty six percent of those who were there during the time of the unfair labor practices remained employed the work force had expanded by a third of why isn't it not very anti democratic to subjects the whole workforce to the order that was based on a closely contested election and that was flawed in this way those who at the time of the board's order with the additional employees those who were there during the time of the end for labor practices made up sixty six to sixty seven percent two thirds of those right they lost by fourteen votes after employee meetings at which the union was blamed for taking away for trying to take away benefits the union is trying to take away your benefits and if they win you're going to have to pay us back the money and the can remember that after the hour i'm wrapping up remember that after the union after the union election they continued by demoting mr said if we had the considered it it would not be controlling because substantial number of employees still remain but here's the point the only thing you can prove from reading the company's exhibits if they've been admitted is that eighty six percent of the old employees are still there we have no idea how many do employees there are so very carefully drafted submission where the plant  gabriel testified to the exact number of old employees remaining but only the number of new employees hired since the election he never said what the attrition was how many there actually were we don't know who in terms of one hundred seventy us excuse me in terms of the hundred seventy or two hundred new employees are you saying that could be like one guy left and was replaced one hundred seventy times no it c could be that's an exaggerated deal as last of the two hundred fifty roughly hired maybe for thirty forty fifty we don't know we don't know how many new jobs who actually are there because remember the way turnover is is measure on a particular date how many old employees how many new employees you do not know how many new employees there are here we just been told councils just represent us that the workforce is now seven hundred seventeen and had been five ninety nine right but i'm saying that also the board did consider it the way they do in many courts around the country the seven circuit d c circuit where these are enforced where the board for example in q one in the seventh circuit they will preserve their position and say even if we considered and then it gets in forced i'd like to next a very important thing if the law were as the company says we've had forty eight years now this is what every case would look like both in the boards in the court of appeals you would litigate whether or not the unfair labor practice was committed next forget everything you've ever read for forty eight years with the labor board talks about the presumed effect from their knowledge and expertise all that you opie and the court of appeals treat seriously without that's gone what the proof would be the only proof is the actual impact on employees so the company would present the evidence it presented here of hundreds of people wanting to say i didn't want the union in my opinion our campaign defeated i wasn't threatened and what does the g c have to present in rebuttal you'd have to find employees who are willing to testify to help the union in circumstances where the union has lost the company is in control who are willing to testify that i supported the uni want to sign the card then the company committed this coercive unfair labor practice and i changed my vote you can't find those people and the real refutation of the entire argument here is just listen because if someone was coerced by definition they're not going to come out and say i really am a supporter of the union i was frightened then but i'm not frightened now for some reason that's exactly right when he has grounds to be more frightened that's that you cannot find them then importantly here the real r the three categories talk about the tendency of an unfair labor practice that's what it's all about the fifth circuit in the j p stevens case which we cited to you for forty one if second five fourteen had exactly exactly this issue and said you cannot prove it through individuals testifying as to why they voted and by the way in the fifth circuit they had much better witnesses they were union when this is the recantations here it's simply anti union kissel talks about this circumstance that thi these unfair labor practices do not happen a vacuum they destroy a union then if the company is successful it buys unfair labor practices of removing the sort of the desire for it before unionization or sufficiently terrorizing people there's no need for it what for example here because speaks about how extraordinary those circumstances would be in your description suggests to me that it's much more ordinary that there is a significant a hole mark u l p is committed during the course of an election an organizing campaign that there should be a disc category one with category two in the sense that they are talking about us well yes of prior panels that we hear constantly this is the most extraordinary thing possible well that's category one this court always in force isn't category one but category two is lesser it's not it's not it's a significant hurdle absolutely because remember this court moved away from jamaica towing the suggested simply violations and give a significant mitigating circumstance it's hallmarked violations and to judge the coercive impact of those mess with the boarded here where the key is the reason that the workers wanted to organize was the problem with overtime and they take it away and they do threaten and there are threatening things in that speech the one that just jumps yes he testifies the speech rather i'm sorry the speech he gives is this that i had great power i saved one hundred forty jobs in this point bring in from quebec and i want to tell you something we are more expensive now it wasn't a business decision we're more expensive than a union plant i did it anyway who in the union comes it's with where they are it's a crystal clear you all pig absolutely and again they hear it they understand it that is there and the other thing that leaps out of that thing the notion you stand in front of again the people with a board document this letter that you highlight that was in the charges in the investigation the board itself determined that they're coming after this request aeration of the overtime the thing well you've got the union and the union wants to take it away from you when we know in fact the way that you all p works is that remains slapped a soldier in a hospital and eisenhower made him go through the entire army and apologize you milly this is i would not like doing this if i were a employer and this would tell me that you know there are important sanctions available to protect people who are interested in you know activity i'd like to comment on t cases the ten day is not complete relief and the key case is trading ports the famous ten j caissons court where you have everything here except the  this is the best ten jail on the country the circuit the reason why we give the bargaining orders is that without them the rest is meaningless because the union whose power will dissipate the chance to represent the ability to keep the again through here is to keep people mobilized where the company has access to them every day and we do not know that the union is destroyed it cannot win the election two years from now that's why they get the bargain water and again it's not in my power as to whether or not they would have appealed whether or not they would want it but that's the truth that ten j proves nothing and a very very important thing another important case is scold us it was written by joseph joseph smith who was on for example to the general stencils panel and what it  and what guests will says is that this whole notion of for example management turnover recurrence of unfair labor practices did they break the law again it's consigned to the scrushy of the board if it once to the board can consider it it doesn't have to and the reason is this it's right in gasol and employer which is destroying the union has every incentive in the world not to break the law  points the board is trying to say in its argument that it's to started to listen to this court with respect to change to mitigating circumstances it has not in its footnote seventeen the board expressly states that the board in which has been accepted in other circuits refuse me it hears to its position which has been accepted in other circuits but then it goes on knowing that this is the second circuit case to address the changed circumstances it does not admit the evidence and as the court in this case said in the court said in heads in threads the board must take evidence and make appropriate findings that is not possible without accepting the evidence what about what about the comment made that the tendered evidence didn't actually establish the size of the new workforce but just talked about hiring decisions the tendered evidence shows the number of employees who left and how much the workforce has grown and i gave you the figures both at the time of the bargaining order which was seven hundred seventy total employees which shows all of the relevant information necessary to determine turnover which we calculated present time being over forty percent with i'm going to just break the court to a couple of factual questions the point was that a unionized plant it is not in the record it's not in the record as we do what is the fact just out of just not in the record your honor and no words no statements about whether and you're prepared to tell us how many employees work at the plant today which is not in the record but you're not prepared to tell us whether as a matter of fact the saguenay plant was unionized i believe the second a plant was unionized but no reference to it being union or nonunion was made in any of the comments or speeches by what was said was i made a decision when it was time when we lost some work from this plant i made the decision to close down the k back plant instead of taking workers away from here and move the work from the k back went to he in order to bolster this plant and nobody in the union in the union election had any idea that what he was saying behind that was i closed down a union plant and moved the work here to the nonunion plant and i may not be that nice to you anymore if you unionize there's no evidence whatsoever in the record that any employee was aware of whether or not the quebec plant was union or nonunion and with you've got the phone you've got certain conditions today but if the union comes in we are going to bargain with the union starting from not what the world is like today at this plant but from the position of those other plants is that not a threat to take away benefits or attempt to take away benefits if the union comes in no because your honor bargaining is a give and take process it's perfectly lawful for the company to say where it would start bargaining from and repeatedly during the course the campaign the company told employees that it had the duty to bargain in good faith the bargaining was a give and take process and that nobody could predict the results of collective bargaining and it also told the workers in those meetings that the union made an unfair labor practice charge with respect to the restoration of the benefits and that that could lead to the taking away of those then if it's when in fact that was false as far as the letter says the letter doesn't say the union made this charge  there's no evidence that the union made that charge that was something that the board came up with apparently on its own least as far as the letter shows the letter says that the board is investigating the charge filed by the union and is investigating the following act allegations which included the removal or the restoration of the sunday premium paid overtime pay it certainly a reasonable interpretation of that letter to assume that the union included that as a part of its charge but coming back to the point thing about a union charges i'm writing this letter to advise you that it's necessary for me to take evidence from your client regarding allegations raised in the investigation of the above captioned matter and the most negative of davids about the following and one of them is the premium a requirement here is there and suppose the company made a good faith in the snake and charged the union with doing something that the union had not in fact done could that be even it was a good faith mistake would that influence the election of that  an unfair labor practice we're on with respect them for labor practice the board's decision to find that to be an unfair labor practice is actually contrary to a case that's almost directly on point in point inside in our briefs the virginia concrete case where it says that the misrepresentation in a campaign of board action the rescission of the the restoration so to speak is not an unfair labor practice and so we would contend that that is isn't there a difference between a misrepresentation about the board and a misrepresentation about the union there is not a misrepresentation about either and if the if the company was mistaken that misrepresentation is because the board misrepresented it to develop finally i just want to close if i may on the combination of change  mitigating circumstances here five out of the eight managers who were accused of unfair labor practices in this case are no longer employed by novellus significantly including c e o martin's and plant manager smith who the board found was particularly important in finding the end for labor practices but is completely discounted their absence into as a mitigating factor the remedial letters that were issued by the company where they disavowed any implied threats were disregarded by the board in its footnote seventeen the ten j order and the remedial impact that they sought and obtained for the express purpose of restoring election conditions completely ignored by bye the it's footnote seventeen the passage of time three and a half years now since the election the employee turnover that we spoke about and that is in the record along with the continued investment growth and expansion of the of the as we go facility communicating a positive message to the employees about their future union or not those mitigating and and changed circumstances are substantial they were not considered by the board and they dictate the denial of this bargain in order under the law of this circuit thank you very much thank you i will take the matter under advisement