maintains that the record evidence did not support the national labor relations board findings on several issues first the national labor relations board determined that dawn trucking did not shut down this entire business operation however  reconcile that with the fact that mr burry continued to drive trucks after dawn fired all of its allegedly fired all of its drivers right the the judge's conclusion was that mr barry continue to drive one truck for the remainder of november of two thousand and fifteen as he was winding down his operation there at this stipulation was that as of the date of the election which the union was successful in that dawn trucking from that point forward no longer dispatched any of its drivers and that was through throughout the throughout the entire duration so that with with regard to that and what is the error in finding that therefore there wasn't a person that down and i am not trying to work the company's argument was that there was a permanent shutdown but it was an employee who was continuing to work so as a matter of finding why did that is reason not a permanent shutdown how could we say that the court order where the border did finding that no it wasn't in texas workers versus drawing to manufacturing corp the united state supreme court stated that darlington was permitted to wind down its operations and that it was still a lawful closing again i would i would acknowledge that the words and actions by dawn trucking  were not as they should have been nevertheless the intent was to shut down the operation and that's that's what actually happened if the words and then intent are not what they what they should have been  very bad optic for my client the state that if the union wins the election i'm going to shut down the operation it looks bad it sounds bed and it would be unlawful if he actually continued the operation he didn't continue the operation that's that's the whole point is that the trucks were sold no drivers were dispatched after the date of the election saved mr burey who worked on several occasions during the month of november while the company was winding down but but there were other concerns was wasn't there a january in february two thousand and sixteen reinstatement offered to certain drivers on the condition that they reject the union right so that's that was one of the factors that informed the board's decision right yes i would concede that there were two offers of reinstatement made in february of two thousand and sixteen and august of two thousand and sixteen and really what the company was trying to do is i guess you know either doubled down or heads its bets it knew that it wanted it shut down i don't think that this individual constructed any decisions before he you know as he made these determinations but he understood that if he made an offer of reinstatement to the drivers and they rejected it he wouldn't actually have to prove that he shut down  operation the reinstatement offers could pass the drivers could reject them as they did and he wouldn't have to go through the process of proving that he shut down it's up his operation but let's let's read the text message text message or february sixteenth this is the text message that was sent to three drivers i want to start work again at twenty seven dollars per hour no union rates no benefits no prevailing wage reply by tomorrow if interested to seven hundred sixteen my four pm and it seems to suggest that reinstatement would be a condition isn't the board's reading permissible again i would acknowledge that the text messages not are fully worded but the text message doesn't state no union it states no union rates no benefits and those are the terms and conditions of employment that the drivers were previously operating under or all my client did was in our fully state that he was going to maintain the status quo of what they previously enjoyed that shot again and again i'm not saying you don't have an argument no you should view it as a shutdown but if it's a question of fact whether this was intended to do is shut down or not we would defer to the board you can't you have to show that there's no way on this record that the board could have concluded that it was other than a shutdown right i would agree and again the argument is not a sophisticated company not a sophisticated individual he wants to shut down his business operation that's in fact what does happen and he really doesn't want to be in the position where he's in today but he is and the whole point was the business was shut down and he knew that if he offered them the driver's reinstatement and they rejected the offers of reinstatement he wouldn't have to worry about a potential back pay award he felt my client felt like he was pinned against the wall that he was going to be forced to reopen his business forced to pay back pay and it's going to be significant for nine months if he's forced to pay back pay so the way to avoid that if the if if if if the n l r b and the reason wasn't going to accept his argument that he shut down was to say ok fine i'll offer reinstatement i'll cut off my back pay the drivers know that i'm not going to operate which is why they rejected the offer and this is and this is where we're at he didn't want to continue his business he did a very poor job he didn't do it the way he should have done it i would have made every recommendation slightly different in the way everything was carried out but again his intent and what actually happened was to shut down the business that's what he wanted that's what ultimately occurred  the trucks were sold sold there's no allegation that there was a runaway shop that he won somewhere else there's no allegation that there's some sort of alter ego double breasted operation there's no allegation that he hired new drivers that the old drivers actually came back that he took on additional work he wanted out and he did a really poor job of conveying that thank you thank you please the court good morning when amos jeff byrne i me on behalf of the national labor relations board your honour's as the record show is within hours of the union or the employers employees drivers unanimously elect in the union mr berry made it quite clear that he was that he was done he was discharging the drivers in fact he never dispatched work to them again however as the discussion has indicated already this morning that he did anything but engage in a total cessation of his business which is the language that is used in darlington and see a complete cessation of complete closure he indicated immediately before the election that he didn't want to be a union company but in his notice to employees that he provided with the paycheck a few days earlier he didn't say anything about retiring the board discredited his testimony that he had an intent to retire that existed long before the union came on the scene immediately after the election when he was represented by counsel within several weeks his counsel reached out to the union justice expressed some uncertainty about what was going on at the property and of course they were the reinstatement offers as your honor pointed out and there was actually reinstatement offers in january as well as february there was the february text but in january there was a phone conversation in which mr breen made clear that he wished to reinstate those who were not the terrorists which the board reasonably interpreted as the individual drivers who had led the organizing campaign he made this he made the reinstatement offer in february as we discussed it more as it has that there is the february sixteenth text message yes and that is the reinstatement offer the actual offer that went out to multiple employees but there was also this conversation earlier in january that also contributed to painting the complete picture that he was not shutting down that what he wanted what is he wanted to continue operations as a nonunion company so he had that conversation in january there was the text message in february whether or not it was in artfully worded at the time he was represented by counsel not not this council but by council he understood his yet obligations under the national labor relations act that arose when his employees sought to exercise or sections having rights to engage in collective bargaining he had made clear that he didn't think he could obtain union work and he didn't want the union there and it was against that backdrop that the board read this text message that in no uncertain terms said no union rates no no union wages no benefits it was not limited in any temp oral sense to suggest that that that condition would only exist until the risk collective bargaining there was never any never any collective bargaining up until that point as i indicated in the record shows the drivers are immediately discharged and so the their you know the status of negotiations that really never took off at that point so unlike the cases cited or ek a case cited by the company this wasn't a situation in which the surrounding circumstances suggested that this was just  conveyance of an offer of how they could come back pending further negotiations this was a take it or leave it offer because it was conditioned on the rejection of the union on lawfully so it did not constitute a valid offer of reinstatement as the board reconciled with the idea of a total closure we have addressed in our brief lockouts carry with them certain obligations that is of course permissible for an employer under american shipping the the supreme court's decision american shipping is developed over the decades that employees employers excuse me have the right to bring economic pressure to bear on their employees in support of their bargaining position or they can engage in a lockout and withhold work from their employees if they believe that there's a pending work stoppage that they need to account for there isn't complete absence of anything in the record suggesting that either condition existed here or there was mr burris testified before the administered lodges that he was concerned that there could be a work stoppage or work stoppages is always possible but there was no suggestion by the employees or the union that that was imminent or ever likely to occur so there is no reasonable basis to believe that there was actually a work stoppage that was the lockout would avert likewise in order to bring economic pressure to bear by locking out employees that certainly interferes with employees section seven rights for the supreme court found that interference a slight because the employees have the ability to end the lockout or to avert the lockout that may be coming and that is all conditioned on the fundamental principle that that the employer has furnished the union and or the employees with clear notice somewhat they must do in order to avert around the lockout and the case law is quite clear that this is not just a tool that can be pulled out at whim to lockout employees but notice must be given of this the typical or per typical example is when there has been bargaining proposals that have gone back and forth in the employer says here's my final offer after good faith bargaining here is what you union and you the employees must do in order to avoid this lockout and we just simply don't have any type of facts that would i support that type of analysis here so that addresses the discharge allegations the it dresses that i believe i' the direct dealing came in the form of this february text message mr burry communicated directly with represented employees about the terms and conditions of their potential reinstatement he didn't bring this to than to the he didn't notify the union of this either before or at the same time as this was communicated this is a rather straightforward in my humble opinion showing of a director dealing well ation i'm happy to answer any additional questions but i also don't always the course thank you thank much i have two minutes if there's any questions and i'm happy to answer them again willing to acknowledge that on trucking and the principal up on trucking mr burey was a poor communicator the only issue was is that he was intent on shutting down his business whether it was because of the union his health or otherwise he has the legal right to shut down everything since that point indicates that he has shut down and yet the n l r b is trying to put him in a position where he's got to pay back pay to a truck to drivers when no work was taken on thank you thank you both your arguments the court will reserve decision