b are using with respect just you can see the wage freeze issue because you didn't brief it yes sure i'm thanking that shit you came from with respect to the wage and the withdrawal of recognition i would agree with the court that the details matter this court or the national barely sions board looked at the evidence in front of it and determined that because wages were impacted meaning wages were involved that there had to be an improper withdrawal recognition but when the court reviews the evidence as a whole and that is the court's obligation to review the evidence as a whole it is not a mere rubber stamp of the national labor relations board decision the decision that evidence is undermined or undermines extent they are the same employees that were in acted in two thousand and fourteen are acting as if there is no union involved today and the evidence undermines the board's decision there were only three employees who testified of the unit employees who were permitted to testify before the board that they were aware of kevin vincent the supervisor's alleged comments that the union was responsible for them not receiving their raises all of those employees testified they did not sign the petition for  decertification one of them said in fact that the fact that his supervisor told him that pushed him more toward the union which is again the opposite of what the board found the board found that because wages were involved it must have pushed the employees toward the union that's not what the evidence was in front of the l j or the board it seems that your strongest argument is that if the employees testified that the end their practices had nothing to do with their decision to oust the union but under mask or slack do we care about the actual reason that the employees gay or do we look at what could have tended to influence  and under master slack we have to look at what the actual evidence was and whether it tended to cause disaffection you're correct in that standard but the actual evidence was that the majority of the unit had no knowledge of kevin vincent's alleged comment the individuals who worked for kevin vincent were in an isolated group in the undisputed evidence before the l j at the time was that those five employees worked in isolation from the rest of the unit they all testified that the only people they spoke to were the other people within their five employee part of that unit and there was simply no evidence that any employee heard or was aware of them additionally or honor the employees as part of that analysis the employees that we are talking about that didn't hear kevin vincent's comments are also the same employees who were receiving wage increases during that time frame so these employees were in an employee development program and as they meet met the next step and that level they received a pain free so they weren't aware of this wage range concept that may have increased the floor or the ceiling in the wage range they were eligible for they knew that on fill in the blank day they met their criteria to move to the next level and they were so used to pay increases as they had been receiving pay increases all along both before and after the union came in a decided that factor but the board is also the one who drug its feet in resolving the settlement in other words the company and the the union in the board had decided to resolve those matters and issuing the final settlement took the board months inexpl because the parties had reached an agreement they were entitled to look at the totality of the circumstances as they did but again they didn't look at the actual evidence and the details in this matter matter it's important to note that at the time the board looked at this evidence kevin vincent was no longer a supervisor ever any employees in the unit so again they determined that wages were a bread and butter issue in front of them and therefore there must have been taint and didn't really delve into the details and the details are important again these are about pay range increases as opposed to an individual's pay that's being affected day to day one of the things that the board in the l j talked about was the timing but the last time kevin vincent was alleged to have made these comments was in april of two thousand and fourteen and kosar put through recognition seven months later in november of two thousand and fourteen again the employees who signed that petition were unaware of those comments and had been part of a program where they were regularly receiving wages are raised raises excuse me another important fact is that wages were not really a big issue between the company and the union so much so that the unions lead negotiator testified during the trial that he would have accepted any wages to serve offered now the l j discredited that testimony is something he didn't believe but that was the lead negotiators testimony a and you know water is gershon over time and yet you are i understand employees are talking about wages these employees again for the most part within this unit were regular receiving wage increases as they move through the employer development program and they didn't hear that issue and they did this is a negotiator who testified under oath that he would have taken any wages kosar boffer regardless if they were lower i understand i can roll my eyes at it too but that is what he testified so your position is that the substantial evidence does not support that because the only evidence really it's on your side tracked there is i don't believe there's any evidence on the union  therefore i think the poster was entitled to withdraw recognition do you have yours your other argument about the bargaining order that separate you mean even if you were to lose on this argument you still believe the bargaining orders improper is that right is correct and all right if it turns into that issue our argument is that the boards argument in their supplemental briefing last week was that the if there's a wrongful withdrawal of recognition assuming for the sake of argument that you all determine that we did not meet our standard and we would run play with a recognition that a bargaining order is appropriate in every case claiming that gets old doesn't apply to this court i would argue and submit that this court's decision in daisy's originals verses of miami verses in a large b for sixty eight dead second for ninety three is a wrongful withdraw of recognition case it determines that the bargaining order under those facts and circumstances was not warranted and that the guests felt to not and on  and that what this court has to do is to turman what the employees sections seven rights were and whether the nature of the euro piece in the employer's role in the decertification petition had an impact and again as i've been arguing to this court this is not that situation when you look at the d c circuit decision in people's gas versus an alarm b which this court adopted in texas petrochemicals the goal is to determine whether the order is not a punishment but remedial in nature and that what we need to determine is whether the unlawful refusal to bargain is whether it's going to have an impact on on the fair election process at the time the board makes its decision a lot of factors should go into that it's been four years since has served with true recognition almost five and the employee turnover rate that something courts are allowed to consider in making this decision this is an extraordinary remedy and there's been no showing again by a group of individuals who testified regularly that whatever wage conduct existed had no impact on their decision to enter a union now the employees help to decertification yeah right but one your honor they voted the union in in two thousand and twelve there was a decertification petition in two thousand and thirteen an election was held and the union prevailed by one vote so one of the things the board talks about is the straw matic sling of support between two thousand and thirteen in two thousand and fourteen and the reality was it was pretty close in two thousand and thirteen and having another five or six swing to the company side and sign a decertification petition isn't dramatic it was a very close election in two thousand and thirteen it's part of the argument of these employees were completely aware of what their rights were they knew which an individual they wanted to put their trust in what they testified to at trial was that they no longer trusted the union the union had done a poor job of communicating with them about any issues dad as a bargaining cetera now so i'm going to ask opposing counsel this question too but why weren't any of our cases cited to us in the briefing that we had to ask for supplemental briefing for our cases there isn't are we agree that it's not d c circuit law our it's just it's the supreme court in us right yes your honor i do believe this more has adopted the court the d c circuit rationale and you mentioned but but you are correct your honor i think that is because the tail j and the board sided seventy d c circuit cases that we got caught up in that analysis and for that all i can do is tell you we understand you all wanted to circuit precedent we've done our best to provide it to you in our supplemental briefing so this is a union that had been in place for two years it didn't win the hearts and minds of its constituents again it had barely survived decertification and remember this is a lead negotiator who testified at trial he would take any wages that were being offered to him these employees were entitled to think he's not doing that good of a job there's been no evidence of taint in front of this court there's no reason to believe that again given the passage of time which is a factor this court can consider that there's no reason that there isn't reason a fair election to not be held today again there was no evidence that these employees understood what kind of conduct was going on and for those reasons i would submit that a bargain in order is not the appropriate remedy this court could order an election this court could order remained but a bargaining order itself is too severe it doesn't affectionate the policies of the national labor relations act and it doesn't give any impact to the employee section seven rights and do you separately protest the public notice reading order yes your honor the public misreading order seems again given to a group of employees many of whom aren't even aware of the union will have no impact on them that doesn't seem to be supported by the facts it seems withdraw recognition from a certified you it is a narrow exception that an employer may do so in narrow circumstances when there has been objective evidence presented to it that is on tainted by inflate their labor practices now the board is never found to my knowledge that a change to employee wages that affects the entire bargaining unit is minor enough of an unfair labor practice under master slack that it that but the circumstances of this case do not show that that's true the wage increase at issue here was two point three percent and all employees would have been paid two point three percent more had this unilateral change not happened it's true that it they wouldn't directly have been it wouldn't have been directly immediate in early january these were phased in throughout after employee evaluations some may have had merit increases above or less than  that but in general the unit would have been making two point three more percent percent more if this on unfair labor practice had not occurred now as to the issue that wages are not a big deal in this particular unit there's actually not that much evidence saying that the board is entitle to rely on its president signing that wages are one of the court precedent finding that we deserve one of the primary motivators in collective bargaining well but here case is to the contrary isn't that a problem well your honor so first of all the union negotiators testimony that he would have agreed to any wages at that point was discredited he said that because he wanted the board to find that they had already reached a contract and they just had to reduce it to writing and that was something that the discredited it wasn't true and in fact the bargaining sessions before that had several discussions  wages which is why it had been drawn out to late november in the first place with the testimony that the processes had it was because of the money to the political parties in that this is what was upsetting was that also discredited your honor the board didn't rely on that it wasn't specifically discredited the difference there is that was testimony by union says to their individual reasons for their  disaffection and the board president is clear that that's not a reliable indicator that the board looks at so whether you want to consider a record that we can't look at what are the facts understand you say well in general we live in this world so you can say any time it's wages this is and it results in this change then this is the result that's kind of like a res ipsa thing basically in this area what is what are the actual facts in this record though that's the substantial evidence refusal to increase wages of employees to the board also looks to time and now employees had their anniversary dates throughout the year and these these wage increases would have been implemented on or immediately after their anniversary dates when they get evaluated so that's when the employees would individually find out about it the other fact the board relied on here is it relied on vincent's statements explicitly blaming the union had a lack of people didn't have access to those statements and didn't know of the state of the record is far less clear on that than imposing counsel said first of all the testimony is that the operators did know the other employees in the unit even though they weren't working in the same office these these operators are the dispatchers as opposed to the linemen which are the majority of the press the unit so those the operators the evidence is that they talked amongst themselves about them there's no evidence that they didn't say it tell any other employees there is no there is evidence is there evidence that they knew of kevin vincent's remarks talked about it and that this was a motivating factor is that any of any of those questions in the record there's evidence that four or five of the system operators knew of vincent's comments there's not explicit evidence that any of the other employees knew of them your honor facts to the contrary on the others there's what there's evidence that if it was believed is to the contrary no your honor there's no evidence that the other any other employees didn't know the commons of instance comments there's no real evidence either way on topped out under the step raises system so they're up these are people who work directly with the linemen in our line and obviously they're going to notice that they're not receiving a raise once a year that they're typically accustomed to  labor practices keep in mind the other legal standard the standard is man's have to show that it gets and tainted by the labor rather than you have to show that it was if objective evidence untainted by unfair labor practices has been presented there's no language there about the burden either way but it's you know it's a legal conclusion on the boards are under master slack the test is certainly the honor but again that's not over the unfair labor practice happened here and there's plenty of evidence of the fact i took your question is asking for evidence of taint beyond the fact of the unfair labor practices themselves  if the court has no further questions on the taint issue i'll move on to the bargaining for now in the briefing in this case in the first round in our responding cited airborn express this court's opinion for the proposition that this court distinguishes between the trial of recognition cases and refusal to recognize cases it calls the first l two was referring to a different type of situation where the board is shown an informal sorry where the union is shown an informal indication that it has majority status so that's when say the union has has never won a an election ok the union is not one and the lection but it has a card majority employees that signed a petition or signed authorization cards showing that they select the union then unfair labor practices happen that the board finds to erode the unions position in that case the board it's a give to bargaining order because the union has never represented those employees the issue is whether the board then looks at whether  does that require remain and in this case no your honor the second issue see here is that the board actually followed vincent industrial plastics so the judge the administrative law judge did vinson and said we disagree with that president but here is here are all the reasons that we're going to enforce the bargaining order and that's the beer going to order the bargaining order anyway that's at peaches seven hundred ninety eight to ninety nine of the  record and we believe that any challenge to that finding is been waived here none of the board's findings there were cited in the opening brief none of it was challenged it was they simply said well vincent says you must individual justify a bargain in order and that was not done here but they didn't do anything to challenge any of the specific reasons the board's gave in those two pages is said one sentence saying the board didn't do it which would have been true if the boarded simply adopted the o j without same one difference here is that again this is an incumbent so this is previously represented the employees so the board doesn't have to overcome a sort of hurdle as it didn't american people demonstrating that airborne express doesn't stand for the proposition that things that that is not a way to distinguish between airborne express and future cases then yes there's a lot of tension and then we would have to follow american rather than airborne express because of our rule of quarterly  might well your honor again the distinction that we have supplied is a valid distinction between the two and gives grounds for following airborne express the distinction we've provided makes sense says to as a way to distinguish between the two which is  one involves a case where the union has never been certified as the collective bargaining representative and the other does if the court doesn't think that distinction is important then yes this is a situation where american where airborne express would have been a deviation but again we think that that is that distinction is important and that's why there's a difference between those two cases and between other two cases in this court and airborne express among the other side in our supplemental briefing discussing withdrawals of recognition from an incumbent union e it found that the withdrawal of recognition was such kind of unfair labor practice this is and that affects the entire unit it deprives them of their representative at a try it deprives them of any opportunity to negotiate their terms and conditions of their employment and it has a very long standing effect it takes a long time to go through board processes and get them the representative back at that point during which they've been deprived the opportunity of being represented by a union o your honor bargaining orders no they don't usually issue they don't have anything to do with repeater flagrant violations but if you're referring to the notice reading it is true that in most of the boards cases they they issue with repeat or flagrant violators in this case the board found that this was a flagrant violation that the withdrawal of recognition and particularly the blaming it o n the union you could see that this is not a repeat violator yes your honor the board did not consider the settled conduct in supporting that we have any authority that says when it's a repeat not a repeat  to say that i mean i believe you know that case is pretty easily distinguishable and that that was a severe violator and that was repeated violator this is not at all and so why should a public honor why isn't that an improper imprimatur of the board on the union activities well this is the board's order your honor it's not it's not anything it is not the unions it has it doesn't cite you know it does it's not the union's language is a poor government officials order that's why the board doesn't have unions read the notice because that would be improper improper leashing conflict with neutrality though  it's perfectly neutral for the board to summarize its findings and state them before the employers employees your honor and the reason the board agents option there is to give the employer a choice to respect their speech rights if the employer thinks that publicly reading the notice is somehow saying that they agree with it in some way they can say we don't want to do this we can have the board agent do so instead the board gives the employer the option to do that to decide which of those  policies and rules as a poet you know are circuits was looked at till much later so you mean only in the bargaining order situation none of the rest is in the merits of this case as opposed to the remedy we think that that the board does not think that the fifth circuit precedent in this area is contrary to its own and i will add that this is a different not equally as in situations sort of by the board than others in that the board in this type of case if the bargaining order is issue is raised to the board the board always evaluates it under the d c circuit standard it says we don't agree with the d c circuit standard and it cites care for that position and then it does as it does in this case it says we acknowledge that the d c circuit disagrees with us and that everything can be appealed to them so here is why it's this is still valid under the d c circuit precedent so that's what the board does here i mean i guess it's it's a little different than to address the points that my opposing counsel brought up one was this issue of the taint in it being lied spread again and the record is very clear that the employees who testified testified a that wages were not the issue and b that they were not aware of the fact that they either didn't receive a raise or that the supervisor had made those comments likely because again the majority of them had received raises because of the way the employee development program or  this issue was just not widespread within the unit and the wages didn't taint the employees under master slap on the anniversary date they weren't off keenly aware of this problem your honor that was their testimony it undisputed in the record the board cross examined them to its intent and to its best degree these employees were not aware again the majority of them had received raises anyway so they were not aware necessarily of some increase on an anniversary date there's additionally no evidence in the record as to when each of these employees into verse three dates would have occurred so there's no ability to look at the timing but the timing that we have in the record is seven months and this court has said days or compare the standard to the facts in this case it just gave me four paragraphs quoting vincent plastics therefore i still don't think the board justified the extreme remitting of a bargaining order we sit here today four years later these employees many of them are unaware that is a factor this court is permitted to evaluate in this process and i don't believe that erick's press really applies in this situation while this court did look at the wrongful alleged wrongful withdrawal of the order in that case came down not because a bargaining order was appropriate because that union that excuse me that company withdrew recognition from that you in within the one year certification time period and this court's order in error expressed limited itself to those facts which is that if you're going to withdraw all recognition before the one year bar we're going to hold you to the one year bar and that is the holding in there expressed it goes through the analysis of the facts as this court has done in the cases that have been before it but it's holding is limited to that when your bar and then finally to respect to the reading issue big picture this court has required it to be a flagrant violation and there's just no evidence in this record again as i keep coming back to the details matter there's no finding that anyone at the company with the exception of kevin vincent was in any way involved in discrediting the union and th comments were limited to those five individual employees within that unit that was their testimony the only people i talked to about it were the people who were other system operators and those employees testified they worked in an isolated room separate and apart from the rest of the unit there's no evidence that anyone at the company was involved in fact the record for the arrow j found that the company in the union had been again sharing very diligently and peacefully for over two years prior to the time that the company with drew recognition based on the petition that came to its attention so these are not severe facts and not something there's no evidence that this company if ordered to go back would not follow the rules of the law thank you your honor thank you