others the international association of machinists and aerospace workers versus the national labor relations board each side will have twenty minutes here the circumstance i wrote a letter to the court advise and judge lectures on the faculty at boalt i'm also on the faculty as an adjunct i've been there for three years teaching labor law courses i've had no contact with judge lecturers far as i can remember during the course of my teaching there but i didn't want to question raise later about some relationship given the fact that technically we have the saying university employee i see so the question to me is whether i should recuse on that basis and i submit to my recollection i've never situation to situation and there are so many variables factors most of these cases however arise in the context of employer refusals to bargain with employers resist these orders are there any cases at all where record is overturned standards away from granting barking orders that it leads to the situation where in this case the board didn't i want to try to convince the court that like in the cases where the board orders bargaining the bo extraordinary explanation for denying an extraordinary remedy not that i'm aware of that changes the board's obligation to explain to some degree reasons for denying the voting or argument is that prior to the morning change in about two thousand and four the circumstances of this case would have resulted in a bargain in order as the a l j recommended and the a l j goes through all the findings which  board to change the standard that's the argument and that's only part and part i'm also saying that looking at the findings of the l j and the factual record some of the particular reasons given by the board for refusing  footnotes like it tends to do all of this sort of focuses upon march of two thousand and two when mr goh lindo who is it minutely and no one disputes the chief worker of the chief mechanic who whose interest in organize he's doing all the most of the organizing in the shop and pride march as the judge describes it the employer goes on this hunt to find out who it is who's doing organizing the shop and they ask some service advisors they ask a technician here asking for a partner but what the board then says is that given the circumstances and this is this is really what they do in a footnote it's the board's decision  everybody knows he's the person who supports the union yet the board says in footnote eighteen union organizer james road hurst testified that three other formally active union supporters declined to attend a union meeting after gillanders discharged because they did not want to lose their jobs the judge found that this testimony demonstrate the impact of response actions well that's our case we think given the fact that rove hearst says i had a meeting scheduled two days later where we expected a large crowd not only from this dealership in every other dealership and the regulars says he talks to the three other kind of team leaders rogers talks to the three other mechanics are kind of helping to lead the organizing under the window and they all tell him they're fraid to lose their jobs they want the organizing effort put on hold they're not coming to the meeting the board says that this testimony that you're citing was uncorroborated hearsay that's the judge found that to be true given the circumstances in this circuit the judge's findings are part of the record and that's for the corroborates and those two factors along and given the timing of show up and participate in organizing and voter says i couldn't get people to come to meetings some people would talk to me one on one we couldn't get people together at all corroborates the fact that these folks the three other lead organized yes because we argue about the hearsay and the board responded in this footnote as to why i mean in your brief to us was just part of your argument to us in the brief  i'm not the answer is yes because we relied upon this as you have a section in the brief called no not now section called yesterday but the board in this week explained why the board could could sort of ignore it but the fact is the cases they hearsay the board majority relies upon a hearsay statement saying we recognize this is hearsay and uses that hearsay to find it critical fact to deny a barking order in a in any way well that doesn't make sense because if the three folks who were helping organize and no one else shows up at meetings and everybody else in the shot knows that the one guy is out there past not cars trying to get people to meetings is fired for no reason and then from two thousand and two to two thousand and five the employer continues to take this argument that they have pretextual reasons for firing it's got effect more than five it destroys the organizing effort and everybody in the shop knows that the lead organizer was fired because he was out there supporting the union and employer had no reason except pretext to fire him so i think the state speaking realistically you have to be a moron to work in that and a perfectly satisfactory employee i mean that now that's two plus two makes far as far as i'm concerned and you know my point here is that the board's rationale just doesn't cut it and it's possible they could explain this and i'm not i don't think this court has the power to simply i'm not asking for a pardon i think it's got to go back to the board to reconsider and and this is further kind of a here's my problem with that remedy as i look at the board behavior post two thousand and four it's going to reconsider write a slightly different order on you going to be exactly where you are now where you are i will disagree for the foreign reason that i you know we may get other board members that the current president will point will take a different look at it and this is kind of exacerbated by their kind of summary description on the next page of the decision here we find that as in the cited cases the discharg issuing a remedial bargaining order there's a wide discretion i don't think there's any dispute in terms of remedial relief fashioning remedy as opposed to finding a violation the discretion is bro r the problem with bargaining order case is that as ever all the circuits looked at you got to explain your reasons for issuing barking orders because you're in effect ordering affirmative relief the same i think it's true here that army or maybe even some other administrative agency where the courts turns it back saying well the rationale that you gave it's unconvincing it's not that you can't come to the same answer but you need to give us a rationale  supporting law do you have not necessarily with a guess what order but more broadly what supporting with already do you have for a revealing court extending a back to the to the board saying you know you've totally fouled up here look at the evidence and board and the board just recently issued a follow up decision expecting every man and changing its decision and remedy in a case called champion holmes this court in another case called st vincent hospital did the same thing it was  if so how much weight should be given to those particular unfairly in fact i was the other half american which i never got to the board traditionally does look at post bargaining order conduct to see whether  the the unlawful conduct can be remedied and in this case you have not a lot with one interesting exception there the board found that there was one further effort by the employer to interrogate one employee about using activity that was the franken horse incident in two thousand and two and they point out in a footnote that that incident long wouldn't be sufficient enough and i'm not disagreeing with that but there's another thing that goes on in this case which judge finds that they didn't bargain good faith by delaying by just being unavailable now i took the position that that is further evidence that the employer is continuing to violate the act in the employees know it and all the board says about this there was an injunction and they don't think or they don't explain why that conduct for sixteen months found by the judge and doesn't go to three to be ex further delay or further refusal to bargain doesn't impact the buying my argument here i think they have the right under the law to refuse to bargain they run the risk that if the port affirms the buying order their continued to refusal to bargain in this case between november of two thousand and two and two thousand three which would have been subject to bargain orders but i didn't argue that their conduct warrants a bargain or later because i understand that's the doctrine here my argument is that you got a district court order intervening which they refused to comply with and didn't bargain when it was in order to bargain well that's about one little corner that if you find judge parks recommended order not supported and is the board did then you really can't bootstrap and argue that conduct between november of two thousand and two and two thousand and five when good morning your honor may please the court my name is fred jacob and i represent the labor board i'll be sharing time with counsel for the intervenor mr rice and would like to split it two thirds one third approximately thirteen minutes and seven minutes  your honor as you've suggested this case ultimately comes down to whether the board of used its discretion and declining to issue a guess a bargaining order based on the facts and the unfair labor practices that it found work committed the board asks the court to deny the petition for review and affirm its decision this steelworkers case that this court issued earlier this year really does speak very much to the issues in this case the steelworkers case initially states in very clear language that the board's order this climbing to issue a guess all should only be reversed if there is a clear abuse of discretion and then the essential holding of that case goes directly to my opposing counsel's suggestion here today that the board is required to issue an explanation extraordinary explanation for not ordering the extraordinary remedy you know bargaining order and steel workers as your honor observed  that the ford when it orders only traditional remedies is not required to issue or to explain itself in any extraordinary fashion instead it's only required to explain itself in the same way that it has to explain itself and any routine case which is a reasonable ness reasonable this review for two to ensure that the board is acting within its discretion and fashioning remedies again the board discretion in fashioning remedies is extremely broad and i believe the supreme court of state and we've noted this in our brief that it's only to be reversed when the board's order seems to be a patent attempt determine whether bad things happened because in any case we're fashioning remedies that things happened an employer has violated the act a union has violated the act and congress has given the board a set of remedies and a set of authority that it can wield to to remedy the sorts of violations instead with the board has to consider is simply whether a fair election is possible and this is a category category two just a case where it's  it by its very nature could go either way this case involves at heart when the board reviewed all the decisions at heart again some very bad actions the employer here clearly practice in almost every case in which there is an organizing campaign majority status could be impacted and that's why congress made these acts unlawful so the remedies here were tailored by congress to these particular violations and the board explained why i felt against the order was not appropriate here and it's very detailed language that given the size of the unit given the fact that even at best five to six employees extent as as its presentation make clear we're fighting about the politics of the president's political appointments to the board and i would suggest that even if you look at if you look at the cases we've cited and how they're distinguishable the pre two thousand and four cases that we've cited or th in its brief we've made clear why they're not on point here and that there has been no change in policy affected oh come on i'm sorry come on well you're on the board is the board is entitle to change policy to some extent you don't have to run away from the fact that it can do that well your honor i'm not suggesting that the opinions of the political decision makers who are appointed to the board may be different than they were under a different administration  been no policy change at the top of the sort of you know the change in legal framework or doctrine it simply is that the way administrative agencies work they reflect the party in power and they reflect the prevailing political whenever anybody introduces an argument with candidly as you did there's a there's trouble coming i'm willing to accept the fact that under our system it's not limited to the board and minister to the agencies can change their policies and they can do it by rule making or they can do it by education and it appears to me that there has been a shift in the board's willingness to enforce this workers so  very very tight x when they ask you specifically with respect to steelworkers yes i just rewrite it and judge gray was quite clear in saying that there's broad discretion and we're not going to interfere with the board exercise of discretion in adopting the default remedy which he calls not issuing the gesso order and she's very clear in saying that while courts have insisted on pretty clear where we are but the argument as i heard it is a little different from sort of the tail of explanation the argument being made on the other side is that the explanation is simply wrong and servant one respects conclude that for example the board conclusion that the firing of mr glenda had not that much in fact we did we discount the uncorroborated hearsay  that firing was not directly causative nobody shows up twenty four what do we do that if the court felt that way i would suggest first the conclusion that the substantial evidence that the congress put into into the act itself if the board finds that if the court finds out the board with was completely unreasonable i would suggest that it should remain and the case to the board to conclude that we would disagree with that a remained would be necessary in any event if the court agrees that gets the order was appropriate because there are a host of other issues that would need to be resolved not just all the unfair labor practices about refusal to bargain bargain there were a handful that she recommended finding but the board didn't pass on any of those and given that the board didn't pass on any of those i slipped a cog this is not your fault did not pass on any of those i m decision but it's under no obligation to do so and once the board decides the ultimate issue it is under no retroactive penalty for having not complied and that's why again all those unfair labor practices that occurred after the bargaining order the board didn't consider did the board consider that there was an injunction if you go to several courts that they're really completely ignored well your honor i think it's interesting if you violated and recommended dismissal of those portions of the violation there were a handful of violations found and i don't believe that the board considered a to board policy the board whether issues of bargaining order or declines issue regarding order looks at the at it as of the time the initial violations and because ultimately the board never passed on the merits of any of the violations given that there was no bargaining order so we don't know whether they they would have been found to be violations or not because the board you still not clear whether the record shows whether a majority of the members of the bargaining unit one of the union or didn't want the union resigned cards or you know i don't think that's contested i think it's been assumed that sixteen car were signed in the bargaining unit fluctuated between thirty and thirty one members so under either count the board assumed that a majority at some point before the unfair labor practices had supported the union and the cards are in the record i believe they are and the board's supplemental appendix but as we've made clear in our brief that's a prerequisite to finding against all there are lots of unfair labor practices that impact majority status and the board uses traditional remedies to fix them the board just simply good morning i told rice on behalf of the intervener sales and service doing businesses toyota i will just note that i was the one that brought the united steel workers opinion to the attention of the court obviously the board's attorney has now addressed it at some length so he's stolen some of my thunder since that was certainly one of the things i was going to mention to the court we do believe that decision is very important in terms of evaluating the propriety of of the board decision not to enforce a bargaining order under these circumstances so i will just note a couple of other things relative to the chronology of this case from the employer's point of view first order and i believe that certainly if the answer is the petitioner didn't cite any and if you look at the cases the petitioner did cite in his brief almost all of them involve cases where the board had agreed that a bargain in order  issue and they were under circumstances that were far more egregious than the facts here typically you know almost every case where i guess the order issues you have had either a threat of a plant closure and actual plant closure multiple people being fired inquiries into people's immigration status threats of violence if you go down the list of the cases that have been cited by the petitioner there is no comparison between the fact off the table but what do you make of the argument that the board has not properly characterized or maybe not properly understood the facts here and that we should therefore correct for the board's understanding of what went on send it back to them to decide yes or no is google order based on what we tell them are the facts your honor from my perspective and my reading of the board decision i don't see a basis and i and this is also based on the boards on brief i don't see a basis for concluding that the board didn't understand the facts the board may have reached some policy conclusions based upon the fact but i don't see anything fundamental confusion on the part of the board they simply looked at a set of facts and reached a policy judgment that was different than the policy judgment that l j parker reached but that's their province in fact in the united steel well it's obviously it's reaching a judgement but i think it's not as if it's said the sky is blue when the record was clear that the sky was grey it noted certain things and reach conclusions about whether it health that something was disseminated in the unit or whether it was whether the highest ranking officials committed certain practices it took note of all those things and simply reached a policy conclusion that it wasn't enough let your adversary points i think with good reason to footnote eighteen and the board concludes at most and this is now just a factual conclusion by the by the or at most the testimony would only support a finding that a total of five unit employees were affected in any way by the respondents unlawful conduct wow that's a stretch in my view we have sixteen cards signed we have mr go indo fired on the second of march we have an organizing meeting called for two days later and nobody shows up and yet the board appears to be saying well we think only five people were affected by the unlawful conduct well you're right that was that just doesn't make any sense to me i think i respectfully disagree in this respect if you look at the record the last card that was signed there were sixteen card signed i think we all agree there were sixty hartstein now we point out in our brief that we believe there's a different context here that that l j park should have considered which is that she sort of tortured little appeal because they mourned and decided that's correct before neither decided it was good or bad but my point is that the sixteen cards signed were a very thin small fragment of the service department so they were they were sixteen out of thirty or thirty one so i got that our next but my point is this the last card that was signed the union petitioner has characterized this as some sort of inevitable juggernaut that was occurring that was then clearly an unmistakably derailed by mr glinda extermination and i think a reasonable person could conclude otherwise and here's why the last card was signed nearly a month before mr goldman though with terminated there is no evidence that there were any meetings face to face meetings with anyone between february twenty fifth and march the scheduled meeting on march twenty fourth that's nearly a month so our position is that the union campaign as it were was losing steam anyway and we believe a reasonable person could conclude that the failure of people to attend some later meeting notwithstanding a few people here say testimony that the board properly didn't but because under unfair labor practices how does that help you your honor my point is simply this that the board has discretion to look at the facts and reach its own conclusions and this court like any other circuit court is only supposed to reverse if the board has made essentially a judgment that is so bizarre that it is counter to the purposes of the national labor relations act so i think it's deference and besides which your honor and i just want to close with this because i realize i believe i'm past my time and that is that this isn't a case where there is no remedy there was a remedy their employer was required to make a posting in a public conspicuous