the next case today is national labor relations board versus main coast regional health facilities appeal number twenty dash one thousand five hundred and eighty nine attorney ran flat please introduce yourself for the record good morning again your hon and may please the court one of the fundamental questions in this case is whether there's any meaningful limitation on what counts as concerted activity for purposes of the national labor relations act in this case over the course of several weeks the employee wrote a series of newspaper articles about her workplace weeks later and in response to the newspaper articles that she had read the employee in the privacy of her own home off duty it without any involvement or even any knowledge by any of her fellow coworkers and her own letter to the editor of the newspaper given the facts that we have in the record employees act of writing her letter to the editor did not said bank concerted activity with any of her coworkers under any reasonable interpretation of that word in the board's determination that her conduct was concerted is not supported by the case law the board's determination that this activity was concerted hinged really on two main findings neither of which are supported by substantial evidence in the record the st finding is that is young the employee quote was in fact a party prior discussions with other employees regarding their concerns over the staffing shortages and physician resignations that she discussed in her letter and quote well if we look very closely at the record the sum total of the evidence that relates that finding is a follows one she testified that there was quote word of mouth and quote that several doctors were leaving the hospital oh people talked about and quote the fact that doctors were leaving there was quote general talk about the doctor's leaving end quote and that the c n a zz nurse assistance quote would say that they had way too many patients to care for end quote that's it that's what we have in the record ms young when she testified chose her words very carefully in her testimony and she never once testified that she herself actually participated in or had any conversations with anybody in the workplace about any of these issues the general counsel as the party with the bird of proof here never followed up on or clarified that point and there was no other witness that came in to testify that they'd ever had any of these sorts of discussions with  testimony in the record is simply not substantial evidence to support the finding that she was in fact a party to discussions as opposed to perhaps just overhearing things but not actually being an active participant  discussions isn't this isn't this it's it's sort of constrained view of normal human interactions that you're asking us to infer must have taken place you paynter sort of has a secret eavesdropper head in or around the corner listening conversations isn't the board title to read what she was saying is that she was in those conversations i don't think that's a reasonable inference for the board to make your honor this is a hospital setting there are lots of people lots of employees that all work in general areas so number one it's not out of the bounds of reasonable is to think that she might have overheard conversations between others that she was not a party to but i don't think it's a reasonable inference for the board to conclude that she was a party i would say that's speculative because the inference that she was a party on the balance of what we have her testimony in the record is just as likely as the inference that she was not a party in this she merely overheard things him was asked did you have any conversation with other hospital employees before you wrote this letter to the editor and she says well of course there was just a general talk about the doctor's leaving and you know it was very upsetting for everybody that that that well of course you seem to suggest she was part of that conversation doesn't and that's that's any inference another inference is that of course there were general conversations as opposed to of course i was a part of th conversations i think that at most what we have is is i hate to speak in legalisms but a mere scintilla of evidence that she was a party this is gushing i don't think it rises to the level of the substantial evidence standard let me let me ask you in miers the the board created a definition of concerted activity that had two parts in it it said opportunity that the board would require that the activity be engaged a whip or on the authority of other employees and not solely on behalf engagement is is enough to say to satisfy that side it seems like what you want us to say is that with you want to change the or to and that is the  the it has to be with other employees east and on their authority as if she had to have the authority or it or the or were doing it on behalf of them explicitly  our i think that myers is very helpful for us to to contrast what or or to actually compare what happened in that case because in miers mr the employee actually the evidence in that case was not that he was a party to any conversations actually the evidence was that he overheard a fellow employee saying something to somebody else and in miers the very case that set forth the analysis that we now use they said that that was not under any reasonable construction concerted activity so i think number one that's an important point number two the next the next key finding even if we were to agree that ms young there is evidence that young did engage in these conversations which of course we dispute but even if we accept that is true the next step in the inquiry that the board made was that these discussions or excuse me her letter to the editor w logical outgrowth of any of these discussions that she had in the workplace there's no evidence on the record about that in fact the evidence is completely to the contrary because ms young testify very directly in various  that her motivation for writing the letter to the editor was because she wanted to respond to prior newspaper articles that she had read that was that was what sparked her letter yet or not it had anything to do with anything that she had spoken about were overheard in the workplace she wanted to respond to newspaper i think it's from the text of the letters that she wrote certainly suggests it has something to do with the conversations that occurred before because that's what the letters  well her or her letters is really it's just it's a response to a series of articles that she had read she's not talking about any of her prior conversations in her article doesn't exist he doesn't describe it was being said at the hospital in the letter well she she doesn't talk about any of those those interactions and earlier she says you know on this date the st article came out and you know i agree with that and on the next date and next that a way of saying that the most immediate cause of her doing it was what most immediate cause of her writing the letter was the prior articles in the newspaper but in terms of logical outgrowth there is every reason to think it would be reasonable to say that her only experience hearing what the concerns were at the hospital led her to read those articles and think they deserve a response as opposed to information i think the best evidence we have on that your honour's is her saying that she wrote these articles to respond to such a good read not because she wanted to you know  inform the community of what other communications were going on at the hospital but what other employees were talking about possible she wanted to see if her zero dollars two cents with respect to an article or a series of articles that she had read in the newspaper previous violations or does one do the job in other words if we were to agree with you on one but not on the other does that make do do we need to reach the other well certainly in terms of the remedy that would result from this case in terms of reinstatement or what have you to the employee or post notices if there is a finding on one of those two counts and you know certainly there will be a remedy that flows there but i do think that my client number one is intitled to make sure that if there are findings on both counts that both counts are proper under the under record and under the law so if  one of those accounts was mistaken i think that we ought to have that clarified but i think that to an extent whether there's a finding under eighty one dollars or eighty three dollars depending on how things  could alter to some extent a remedy in terms of extent of notice is to be posted or what the case maybe and i do want to talk a little bit about this concept of union activity because it's a phrase before you before you get there i just want to tie up one loose from the special a concerted activity yes if the record supports the conclusion that she did have the conversations that you say the record with that argument well because argument in your brief i believe we did because we addressed the myer standard so even if she had engaged in these workplace conversations  her act of writing the letter her individual act of writing the letter is concerned activity if she engages in that act on the authority of other employees which there's no evidence of that she engaged in that act with other employees you know the testimony was i didn't talk about this letter to anybody else nobody knew i was writing it nobody had any idea about it so so that part of the miers to test would be out the nd part of the miers to test would be if it c circuit that says you know if a board initiative agency like the four is not going to follow or is going to depart from or expand upon its prior case law they always need to talk about that address it and explain why they're doing that and in our decision the court's decision i don't even think it references miers if it does it only does it in passing but there's certainly no discussion in there about here's the miers problem one part two part three and why we think that this satisfies all those criteria well could i just just quickly follow up on that i mean it seems to me it's important to remember that miers miers want to miers to the board toward a little bit toward ojo or order to simply say that you know the burden isn't that high in terms of what constitutes activity with other employees it seems to me that's something that deserves a lot of deference too we have a very clear formula what what needs to be proved to show when individual activity can be deemed concerted and the board in our case doesn't even run through that to say here's why we think this satisfie it doesn't satisfy or here's where we think miers went too far didn't go far enough and under the auspices of this case we think that we want to move miers from a to b or eight to zero whatever the case may be and here's why way it's the board seems to be taking a step back to or yahoo standard i'm not saying going all the way back but it seems to be taking a step back toward that standard in this case well your honor on the last point i would disagree because i think the key distinction between miers and the out of case to provide a hypothetical on the facts of this case the facts of this case were that mr young was there is no employees working for the employer should have a concern about it's a clear issue that other employees presumably would be concerned about that is not sufficient evidence of concerted activity however in meyer's to and part following the supreme court's opinion and city disposal the board made very clear that if there is evidence that an employee has a truly through complaint and the individual employee asked on his own initiative without addressing any other coworkers employer or in certain circumstances to the public and returning to part of your earlier questions it is true that in this case it was not part of the bargaining unit but i make two points st of all in  s and that is more about the substance of a complaint and whether the employees are tapping through their working conditions together that is not dispute in this case the employer has not raised a challenge to that finding moreover the fact mr young had a direct interest in these selective grievances because as part of her job she works directly on a daily basis with the nurses and in fact when the nurses were understaffed it affected her own work so that she would have to for example take up nursing duties on an ad hoc basis in fact she had that concern about staffing levels for many months the evidence shows that she had actually contacted her supervisor party simply identifying it as a sole member yes your honor well i think that argument does not hold a lot of water if the court actually looks at the testimony or of the transcript excuse me from the ad for later practice airing when this dispute about how what the exact phrasing of the relationship between mentos and more hostilities or named was under may not proper corporation law but i think it was clear at all times that the purpose apply to eastern maine and the employer it actively consented to that at the hearing and as a result the counsel for the board general counsel had no reason to think that this issue was still in dispute and so for questions one of which relates to this let's assume the parent wasn't joined at the party just for a nd that the parents not appeal  well that is part of the issue your honor a point that we make in our brief to the extent that mancos is alleging that it does not represent eastern maine and eastern maine is not a party then maine coast would not have  the employer's reason for terminating the employee was not due to the specific content of her letter pertaining to anything related to union activity even though the letter contained such stuff but instead simply because it was critical of the hospital and has a business related reason for terminating employees who are critical of it does the a d l j s decision that the board of firms address that argument to be protected the only material legal issue is whether that conduct is in fact protected and if we assume that it is protected no no no but i'm saying is their argument is that they did not concede that they fired her solely for protected activity or for criticizing the criticizing the company is not a three protected only union activity and they're saying that we're not firing her for the union activity we're firing her for the criticism so what's the answer to that just no your honor and i think it's important to clarify that based on the arguments that the employer makes the in total and so if the board finds that sending submitting this letter to the editor was protected activity an employer cannot say yes we discharge her for submitting this letter but it wasn't because we  the situation is that an employee is an occasion union activity and employer says we're discharging you for that activity such as being away but it's not because it was union activist because for example we have a workplace role that defense if the evidence shows that protected activity in whole was a motivating factor for the discharge that is a violation of the act and an employer cannot say we were retaliating against th reason for the discharge was miss young's decision to send this letter which the board found it was protected as a whole but if i could make one other quick point responding to your question regarding the right line argument that the employer raises the mixed mode of argument as well as the rest point that they make it's important to point out that those arguments are ultimately irrelevant in this case because as the administrative law just noted as affirmed by the board  footnote fourteen of the decision five point is a counterfactual turnitin the board's primary finding is that the portions of the letter that the employer identified as being the basis for the discharge which is missing saying that the hospital chairperson short showed an eastern a into the employee and that hospital management was out of touch with the day to day work at the hospital those are protected under any theory so the employer has not identified and even allegedly unprotected portion of the letter even assuming that the employer can parse out the letter in this in that way so this is not a motive under any theory and i'd point the court to the mound desert island hospital decision again in that case the content of the letter was actually very similar and the court held in its opinion that the criticisms of the employer were  intertwined with the actual protected protected expression of grievances as they were here when this young was criticizing the hospital it was part of her protected concerted and protective union activity and mr mr white's if you could mute please and at this time would attorney randy look please and mute his device and you have three minutes of rebuttal time please introduce yourself on the record good afternoon again your honour's this is josh rant on behalf of the respondent i have a couple of quick points that i want to make and then i want to turn to this mode of analysis the judge there was just asking about the two quick points st attorney white said that there's evidence in the record that ms young had communicated with nurses about their patient loads that is absolutely not in the record even if we're to assume that what she testified about was a conversation that she was a party to there's no testimony in the record that she had any interactions with bargaining unit employees or nurses the testimony about patient loads related to c n n s who are not nurses and are not members of the bargaining unit so that follows up on judge smith's point earlier about how a lot of these other cases where employee makes a press release or goes to the newspaper they've had some interaction with the bargaining unit we don't have any evidence of that whatsoever here in fact her evidence was that the st time she ever heard of this petition or the complaints that the nurses had raised there in was when she read the newspaper so that's my st quick point the nd quick point relates to the status of you may just the record if you look at it very closely the general counsel's st motion was to add you may jest as a party respondent which was objected to then after colloquy off the record the general counsel came back and the  record will show either she or the judge refer to it as an amended motion to an amend and that the amended motion to amend was to change the name of he responded still singular not plural d the responde mean coast to go into the properties and systems of other people who are not or other entities who are not part of this and have have any appeal that in this case i don't i don't see any grief on priests admitted on behalf of them no but but you honor maine coast has and it's a problem for maine coast if they are required under the order to go onto the properties or systems of others and do things that they may not have the ability to do on pain of contempt and that puts them in a very difficult unfortunate situation where either they have to you know go do something that they may not be permitted you or potentially face a contempt action so it does matter to me in khost that's time your honor may i very briefly  charge and in my view under the reading of the general motors case which came out after our case was decided when there is a question about whether or not the the discharge was to eighty three that you had a business purpose in firing her because she was criticizing the hospital that itself is not union based i understand an r v to be sent back you just misunderstanding how the law applies here if the activity you've identified is writing the letter and that letter as a whole is focused on union activity which i know you dispute but granting that it is if it is it doesn't matter that you say no we were just because he was  criticized i think that the motive matters in two different ways one way that relates in a three and one way that relates to healing one for the eighty three when the employer provides a legitimate business justification for the action that they took the board th has to put forth evidence that there was an anti union motivation for that action so that's the e t a three just based purely on terms of the statute what do you say about that the n l r b response that they just that's not right they did just i did cases saying that that's not how it works because if the inherent in the activity you have done to fight it is the union activity then if you don't get that you don't get to do that well then that gets back to the earlier question about race of the day talk about union activity and it's not entirely clear what that means because the statute in the case law does not talk about you know activity it talks about assisting the union forming joining those sorts of things there's no evidence here that she assisted so it's not even clear what the union activity was for eighty three underpaid a just and thank you