employees advocate for more money a better schedule a different boss every day employees get together to discuss where to complain to get advice sometimes they meet in person sometimes over the phone by e mail by group e mail text snap chat facebook probably some other social media that i'm not aware of because i'm too old and in all of these cases the employees are talking about too wide they're talking about working conditions and things that employees wish were different but when his advocacy for better working conditions crossed over into insubordination when does it go too far when does the manager have the right the responsibility to other employees to take actions that's the question i believe that's presented in this case i think it's also the question that's reflected in document one hundred and eleven that was presented by opposing counsel where the n l r b seeking assistance and setting those guidelines the scope that call for input is more directed in the union context and mexican radio corp was not a union shop it was never an indication that the employees were attempting to form a union or to otherwise collectively bargain right now the standard is that what difference would that make i mean the difference it makes is that if i'm a union shop or if my employees come to me and say we're considering advocating and forming a collective bargaining union then i know that i'm covered by the national labor relations act and i know that protected concerted activity towards that activity to say that the only way people can have concerted activity and to have input into their work is by say you to join a union i think that the distinction is whether the retaliation or the discipline was directed towards the employees for banding together or for the message that they were sending and i think the distinction is important this was not a case where people were terminated for banding together but for insubordination calling for other employees not to respect the manager that was in place making accusations about their shareholders that they were embezzlers and engaged in fraud and that they none of them deserved respect i think i think it makes it very difficult particularly given the fact that those accusations were were disseminated to all the employees and were discussed among other employees and the employees that were green with it were why people can't get together to to say you know i agree with that why do you assume that the people who said well you know me too were agreeing that the employer is an  because well one of the responses was i agree one hundred percent but for purposes of one hundred percent if what if they said a one thousand percent would be ten times one hundred percent but but that's the issue here if the e mail had simply said that we think we're being treated poorly by the manager and we think that the typical should be adopted and that's why i left my job this is the original email holder and everybody else said oh thanks for bringing that up and we think that's great i don't think that this would have gone the way it did if that was the extent of it but that's not the extent of the e mail the e mail went far beyond simply saying that there were certain issues that had been raised that hadn't been addressed and the question of what of the mill had included just simple sounds toward the end and because of all of this i think we should organize collective bargaining i think that that would have also had a different effect i think it would have had a different response from management and it would've it would have the mere addition of those words or whatever i will i do believe so yes your honor and i think what you can't lay out grievances if you will without including that language and come under the protection of the i don't think it's i don't think it's that simple but i think that when the i don't think that you can say that every time employees group together to raise issues about workplace that's too inclusive it covers every dispute between every manager and every employee in every way but here there's what it was that went interactions were all brought up as a basis to lay a foundation for a pattern of having raised issues and there was no discipline as to any of those other emails to managers or to shareholders there was never any discipline for any of the meetings the only time that there was an attempt to discuss this these issues with the employees was after the e mail was sent and after that the aborted conversation with the st employee none of the other employees that were claimants here had any conversations with management beyond that the st date the st employee ran up stairs and told the other employees were all fired because we responded to this e mail and they all walked out the door you're saying that they were all fired because  mail itself was insubordinate contain vulgar language and it was a personal attack on the management that the distinction that opposing counsel draws is that for purposes of of establishing protected concerted activity that e mail because it raises working conditions is protected concerted activity and by agreeing with it by adoption the agreeing employees are also engaged in protected concerted activity but in his brief he says when you look at whether the the foul language the in support the potential insubordination and the negative aspects of the e mails those are not attributed to the agreeing employees they want to have their cake and eat it too so that only the workplace condition complaints are adopted by the employees but not any of the negative that was the distinction that i was drawing i was not conceding that they were terminated for agreeing with the email i think the unfolding of how people were disciplined and how they left their jobs was quite a bit more complicated than that as laid out in both briefs so i'm sure i am just so i'm sure i better understand what you're saying the what you are objecting to in your argument here is that the n l r b wants to sort of pick and choose out of the email what it is the other employees agree to and then use that saying that's concerned about timothy that's good that's that's the activity at the basis that the underlying e mail creates the protected concerted activity but in terms of looking at whether it goes too far you only look at the responding emails and since they don't contain profanity or any insubordination that the may please the excuse me or others may please court michael jackson for the n l r b as the board reasonably found this case involves the company's response to its employees repeated concerted attempts to raise their share of complaints regarding their working conditions efforts to raise their share concerns constitute a concerted activity for the purpose of mutual aid and protection protection under the act and i guess maybe i should pause here just to respond briefly to the point that was raised  being a union shop a nonunion shop that that point your honour's is is completely irrelevant section seven of the national labor relations act is extraordinarily broad it applies to all statutory employees regardless of whether they have formed union or attempted to form a union includes not only the right to form joint or sister union but also the right to engage in other concerted activities for the purpose of dot dot dot other mutual  protection and i would direct your honour's prince i mean there's just a litany of cases both from the circuit courts and the supreme court on this point but principally to the case nine hundred and sixty two and a large b v washington aluminum that's a supreme court case it cited in our brief the cite is thirty seven dollars to us nine holding that employees in a non unionized facility undertaking no effort to have formed joined a sister union nonetheless have engaged in activity protected by the act when they join together to try to improve or protest their working conditions but back to where i was going so the employer numerous attempts to raise these complaints they had to management including there were twenty nine were clearly concerted activity for mutual aid or protection under section seven of the act and the company clearly discharged them because of the email replies additionally substantial evidence supports the board's further finding that the four employees the four discharged replies were not so objective egregious as to cause them to forfeit their statutory protection and i'd like to focus on that point for a bit if i may responding to an issue that was discussed during my colleague's presentation i think she is right i think the salazar is correct that the central issue in this case is did the otherwise protected activity employees do we look at e mail or do we look at the e mails that may agree with it one hundred percent well the primary focus your honor is the reply e mails of the four employees because it is their  jobs that were terminated by the employer it is the complaint allegations litigated in this case concerned only those four employees it's their exercise of their statutory rights and as the board has recognized in the crown plaza laguardia case is the best example i can to you which is in our brief that you know the consequences of an employee there statutory protection are so dramatic so severe that when you are analyzing the loss of statutory protection in a context where there's multiple employees involved it's critical to focus on the conduct of each individual employee and not to go in them together that's that's not appropriate because it is such a severe consequence you to look at the conduct of each employee so primarily the main focus is appropriately on the four employees who applied the board did also look at miss palanker and its content and determined reasonably that in context especially in the context of this ongoing three month effort this you know the employer would like to present this case to the court as if it began and ended on october t thousand and fifteen and nothing could be further from the truth this case the story started in august three months earlier with the hiring of mr frey to and from that point the employees repeatedly discussed among themselves their complain claim that whether this is true i have no idea that it was not common and industry for runners to have a equal share in the pulpit and they also objected to the sharing of tips with mr petro who the compan s companies excuse me the employees viewed as a manager and they felt that since he continued in their view to be a manager and because in their view he continued to exercise substantial influence over people's schedules that it was not petro should have an equal cut or any cut in the pool tips but your honor to be clear the wisdom of the employees grievances is not at issue in determining their protection that's also set forth in the washington aluminum case  so the four employees the board looked at the whole context the e mails were continuing dialogue continued the ongoing dialogue that had been going on for three months about all these workplace concerns employees were both discussing among themselves and raising to management compiling lists presenting them to the manager sending emails coordinating the filing of of health department complaints they also were a reaction to the employee's perception that management had been very indifferent to their complaints had not sufficiently addressed their complaints and in one instance on august twenty five in the case of mr frey do have actually a course of lee threaten to fire them for raising  isolated comments scattered throughout this punk email they're not central to the driving message of the email and none of those issues had previously been discussed or raised to management what had been repeatedly discussed among employees and presented to management or all of the protect and concerted complaints about their working conditions so if you look at the employees replies and remember your honor that there replying to this e mail is a unitary and you look at their simply stated agreement in their replies to this email as a as a full single document and you look at it objectively and in the context of that three month repeated effort their replies and moreover  email this is why she's copying her employees and her coworkers excuse me she's copying the coworkers on the e mail because she's calling them to continued action she's saying please continue to stand up for your rights continue to stand up for what you deserve so in that whole context with their replies objectively they were merely expressing their agreement with and support for ms plonkers criticisms of management's role in the ongoing dialogue and their perception that they were being treated unfairly the emails were also it's undisputed nonpublic these are circulated only among the management of this particular facility and about half of the employees in that facility there is absolutely no evidence of any dissemination to anyone outside of this facility there was therefore no cause of you know loss of business lost customers lost reputation there is none of that the board also took account of that factor and moreover because the employees sent their replies undisputedly while they were not at the restaurant while they were off duty on their own time there can be no claiming there is no evidence that there was any disruption of operations i have only ten seconds left i'm happy to answer any additional i just wanted to note that while opposing counsel concedes that there had been no other prior ickes ations of criminal activity there had been no other personal attacks in any prior discussions between management and employees and prior to those attacks there had been no discipline there had been no reprimands to anybody for raising any of the employment issues that they had repeatedly raised the fact that they were consistently asking for more tips and runners run the food from the kitchen to the tables busboys clear the tables  and the tip pool had been constructed and organized by the employees themselves the fact that a couple of employees of the waiters and waitresses wanted a different structure the fact that it didn't happen doesn't mean that management wasn't listening or that management didn't make a decision it's own discretion on how who gets what shifts who gets what positions and how the tips are decided and again there was while these issues may have been raised from months there was never any indication that there was any discipline because of it and while there may not have been any any public dissemination and therefore no disparage man or defamation there certainly was a potential loss of respect by the managers and the shareholders of mexican radio corporation and in their ability to manage the other employees who were all privy to the accusations and characterizations of that email even when they didn't actively participate they didn't actively participate they were all copied on the e mail it certainly was directed at more people than just the ones who agreed to it as a practical matter the resolution in a national labor relations board case requires not only that the aggrieved claimants are made whole with back wages but that they're also provided with their job back and then an announcement needs to be posted in a public of the restaurant restaurants closed so we didn't get the drawback well nobody's going to get their job back but that the notice that's provided by the national labor relations board details that the employers acted  wrongfully in terminating these employees and that will be posted in an empty restaurant and it will be mailed to all of the employees who work for the last three years at their last known address so that the public ramifications of being found responsible for an employer under this act again create an environment where activity such as what seems apparent to some may be of the personal attacks and the accusations of criminal activity are not just condoned but they're actively disseminated to the rest of the employees as activity that is supported and encouraged by the nationally with the responses sent to all of the employees they have not been sent normally with the rect they were all reply all so whoever the indian nation versus the united states department of the interior thank you