our companies and we're here because the national labor relations board improperly certified the union to represent certain of our employees in burlington new jersey  all our reasons are fully briefed and i just want to point out a few things for the consideration of word of particular day person is a threat to a nailer named mr barlow the board simply wrong in its conclusion that the threat and promise to mr barlow concerning his livelihood that there was no evidence that the forklift drivers can be selective in choosing the stacks of the stacks of pallets from the docks and bring them to the naylors there are assigned nailers that the port the drivers have to go to but there is no evidence to support that the drivers are distracted on where they pick up the stacks in fact the evidence shows that they can pick it up on the dock or in the yard there's no support for the conclusion that  they can and there's no discretion in choosing where those pallets come from this is critically important because this error is the basis for the board's conclusion that this was quality of the piece stacked itself all right he mr rios said specifically there was no indicate you couldn't control what was in the pile but which pile you're given you can control and that's the that's the thread was about his ability to make a living because he made peace rain right so the more work you do the more money you made so the the key here is the board ignores that any delay ok and when you are given who are you know if you can control most of these in this stack are bad didn't pass it you also have to consider the circumstances of the threat mr bar low was a nailer who was asked by mr le rocha to come get into a car with two paid union organizers and these two pave union organizers and mr rocha got in the car in a small little space and the conversation goes essentially paying the union can do stuff for you and in the course of saying they give you can do stuff for you the issue is we'll get you more money and mr barlow says well even if you give me an extra dollar an hour it's not going to help me because my piece rate is what the issue is and then the row says well if you work with me i'll work with you and everybody in that car knew he was the one that controlled the the quality and quantity of the  know i believe that the fact that the two union officials are in the car and don't repudiate or or say that's not true means they adopted it at least by their omission his statement if you're sitting right there and there are four people in europe in a car and one guy makes a threat you then you're the one in charge and you don't get away from it i think the union did adopt it but let's take a minute and talk about  day it was immaterial he said it would have would not have impacted the boat because it would have been twenty three to twenty one it just mr barlow changed his vote it's twenty two all no majority and a new election is because the standard for the about the agency piece the board concluded that he was a mr low row there was a special agent but he didn't tell us the scope of the agency what was he an agent for we would say that he is an agent at least so far as all of the campaigning and organizing work that he did the union conduct in using the rope extensively as his eyes and ears yes and it or mr cecil in the others had zero contact with a halfway house folks they weren't able to contact them talk to them or anything these halfway home house folks pain we're not allowed to leave the premises so the only contact that those voters had was through mr la rocha and one of whatever other the folks and if you look at the testimony of all of the halfway house folks they all threatened by mr lew wrote that the board wrong we fail to draw an adverse inference with regard to the failure to call mr larocque this is not a situation where there was some evidence on one side and her opening counsel for the evening in her opening counsel for the union specifically referenced the fact that they were unsure whether they were going to combs from the room so they had not to mention the fact she was a this is your problem that factors on why he discredited him but but this is on contradicted evidence so so mr goodbar why couldn't it be that the m j having heard his that the controversy between timing and e because of the status of mr the rope because of the the fact that he was there to be called and they didn't own the reason they didn't call him they knew he would have to tell the truth and he would know he would have to admit these things i drug rehabilitation as a campaign tool admittedly because he wanted to appeal to the bone robinson folks he testified that way the reason i brought up the the the drug rehabilitation is because of the i know there are drug problems in the robert so so the fact that he knew he was involved and in drugs he used the campaign tool of rehabilitation supports that he incorporated all of counsel for the national labor relations board i'm one of the critical points in this case at least from the board's perspective is that the company had the burden of proof before the board not only as to the allegations of misconduct before the election but also as to mr the rochas agency's status or excuse me status as an agent of the union  and the board quite reasonably found that the company failed to carry its burden on any point turning to the agency issue first mr larocque had no actual authority from the from the union to act generally as the union's agent and that's absolutely clear on this record the company is pressing the suggestion that you might have a parent authority to act if you might have already at the relevant time and that too is not supported by the record a parent authority requires a manifestation by the principal to third parties that would reasonably leave those third parties to believe that someone is authorized not to have mistresses will certainly use them for a lot of things called the key member of the team and what about the point of his ritual of the halfway house it's a little bit unusual fact pattern here right it is it is your honor and then in other cases we've relied upon the of the of the general agent not abdicate his role in this campaign in the way that you see a union agent abdicating is role in say georgetown drafts or some of the other fourth circuit cases that are cited by the company in terms of the halfway house issue in p y mr cecil did go to the halfway house he actually testified that he went there he left campaign literature and he left his business card firm place to contact him and he was assured at the time that his information would be passed on so it isn't for lack of effort on his part that he was unable to access those employees perhaps and he also was available in general i don't think we know definitively on this record what proportion of employees lived in a halfway house it's clear that there were a significant number inside but he met employees across the street he met them at a nearby he he met them over their lunch he met them in a train station on their way home he prepared union literature he distributed that literature he solicited authorization card so this is not in any way a case factually that can be likened to georgetown address kentucky in tennessee clay company in the fourth circuit cases and also unlike in p p t industries and guarding marine which are two other cases the company site there isn't any kind of conduct anything that you can latch on to in the record by the union that would convey to employees that this person is acting on our behalf what the company is relying on essentially is association and that's it and this court at least to my knowledge has not found that mere association is enough to create an agency relationship and that's absolutely clear in part from overnight transportation which is a case of this courts in which the court found that simply being the fact that union agents were around when purported union agent employees were acting did not create an agency relationship or make their conduct attributable to the union so that that is the board's view in terms of the agency issue turning to the actual substance of the objections the board really doesn't see anything in each of these or any and anything in them collectively that would create such a tainted environment around the election that the election has to be set aside statement and he said i don't so we have to take him at his word but in addition with the with the crux of the board's finding on that issue is that these forklift drivers at least on this record no explanation in the record as to what exactly that may be and perhaps mr devine and eliminate that for us but notwithstanding that testimony about what mr barlow thought there is no testimony from forklift drivers or other employees that yes these these particular good stacks exist and they can be found on the dock and forklift drivers are at liberty to go and select them and go out of their lane assignments i have to disagree with mr divine on his characterization of the record the witness gary cooper who's the manager of the facility in question was asked how are palace to live and what he said is there are leaders signs and those lane assignments in he is under his testimony he doesn't say that they're restricted to any particular area mr devine is suggesting that they're restricted to the area where the pallets are actually delivered but that isn't what the record shows and so what we're left with on this record is the suggestion that there are lane assignments that forklift drivers have to use they have areas of responsibility in terms of who they deliver to and there isn't the kind of latitude dying well they were there were several reasons and there again it page three thirty of the appendix one of the persuasive points for the judge was that little denied the threat that if supposedly he had made to time  and it given that one threat was on support it was contradicted and the judge credited little overtime and the judge found the rest of the threats to be suspect in addition he found them suspect because the kirby threat in particular which was the death threat the most serious of the rights involved apparently occurred in the company or is it in the vicinity of twenty to twenty five other people and yet there was no witness who testified to this factual issues like this in the handling of evidence are owed a great deal of reference of deference and in this case the board doesn't believe that the company has met the standard which is it for an early high it is that the showing has to be that the findings of the l j were hopelessly incredible self contradictory or patently unsupportable and the board just doesn't think that the company has met that burden in this case if you look at page three thirty of the appendix you'll see that the judge has cited how do they go to the yard it just doesn't make any sense to do it is so assume that they can take that evidence to the any stacks they want to the naylors that you know there is not substantial evidence supporting the  the poor in that regard in addition to the counsel for the government seems to imply that mr cecil met or successfully left stuff materials with the bow robinson pose that is not true the evidence is is totally clear that even when he mailed it it was return paces georgetown address he g the tennessee case and also the bristol textile case from the n l r b all of those cases a very big reason that there is no agency found is because of the access the ready access they otherwise have the other piece not only did he not call the road but they did not call the imports tail and who was the other paid organizer who was in the car with m