committed unfair labor practices and i believe the record is is complete if i may this starts with the real question of the n l r b has never adequately defined when wage increases are given on a regular and consistent and predictable basis this circuit had the problem and the acme di i case where you sent it back to the the  you won't do it so we're talking to force and what i think is important to look at is the n l r b found that the credited evidence shows that they responded informed employees upon their hire to expect periodic wage increases once every six months and in fact a substantial majority of employees received wage increases of at least twenty five cents an hour at least one time  year from august two thousand and nine to generate two thousand and twelve regular predictable to me is just that you're going to get twenty five cents an hour on your anniversary date you're go this argument with respect to i'm having trouble my which which violation if you are found as to the wage increases the wages regardless of the mighty other threats to not give wage increases which were not threats at all which will deal with in the moment could you adequately raise the brief it in for your argument i believe that the only thing we didn't do is mention eighty three it was fully argue because to have it out the board relied on the violation of it is a once we indicated in the brief that to have an eighty one you have to have a hostile motive and or as the board calls it the union elements and well what the eighty one you have to have a hostile mode of that's the bronze food case involved a lockout and the court said that the supreme court said no there was no hostile motive shown severe for it was not good one and the browns fruits case had to do with temporary spices to allow them to go on in the courts and the supreme court in both of those cases indicated the hostile motive was necessary to have th in this case the problem is this circuit has said that when the there is contradictory evidence the board has to take that into account or has to explain why it didn't do that the uncontracted to the evidence is that those are not indications of a hostile intent toward the union so we go back to the board never understanding of being able to articulate what is an actual regular and predictable and with we look at the wages in the testimony it's not supported because despite what the board found the testimony of one employee was that about every six months even twenty five percent of fifty cents depending upon performance and larger raises every one to two years if you look at the chart if you look at appendix seventy six doesn't h increases thereafter that doesn't support the five the other one says you get at receive annual pay increases on the anniversary date which was not consistent but if you look at the joint exhibit one and you look at the char b it certainly shows there was not so how how you determine that and that the idea of a hostile intent what if mr woodcock who made those statements was uncertain or confused as to what the law requires because i don't think anybody certain what the i don't like the record if you're going to use this as being a regular predictable increase the anything else and requiring them to do that i think the board would say it's concern was that you were talking about we're not going to do raises because because of the union or because of the union thing well  election if the union comes in we won't be able to keep doing this now why isn't that sufficient just for a one even if you didn't have a consistent practice because the question is you have adopted they did that but the l a they did not look at and explain the contradictory evidence to that they just simply said we accept their credibility and you have to look at the specific language used i believe the specific language was if the union comes in i'm not able to give them or we're not permitted to give them something to that effect it's not if the union comes of i won't give it to you because the union coming in it's a question of what what does how is  and how do you know he's put into a quandary if you give the raise and it's not regular and predictable that's unilateral change and you get an unfair labor practice if you're not able to discern and comes in we won't be able to have wage increases why isn't that sufficient and even the dissent thought that was sufficient and even persuade us because under the american ship building and under the ground foods there has to be a hostile intent and there is no hostile intent in those statements it's a statement of what he's a believes he's able to do or not able to do because even if a reasonable employee would have understood that as being hostile to the letter they should vote for the union anti union that's not enough in your view under a day one i don't i don't agree with that because i think the i don't agree that it turns out there is how a reasonable employer would have interpreted it correct because if you things that normally did day to day would have to be negotiated and he specifically denied that statement so you didn't didn't take into account the entire circumstance the second conversation  october or december of two thousand and twelve he said we're not allowed to bring ideas and what cox said at the same time is what has been done in the past was discretionary and everything had to be negotiated everything had to be negotiated i'd be in just as much trouble as i am for not doing it when you look at the conversation as a whole you look at that a reasonable employee is not going to believe that they're doing it because of union animists they're doing it because he's not certain union organizing drive he simply said if that's what you want to do i'm not going to stop it the other thing that i think is very important to look at is the issue of the christmas gifts  algae found in the board supported that the the gifts came from mr and mrs woodcock from their personal funds it started as a project with the company gave a potluck and then as the company grew and became more successful mr and mrs woodcock out of their personal funds provided gifts and what the n l r b looked at ignored was the fact that some of the gifts were cash but many of them were were previous sometimes a gift is a gift and what do how well the n l r b went out of their way to do that if we look at the charge in the complaint the woodcock's were never named in that only their employees were told in their hire that they receive regular wage increases they did receive regular wage increases and there are more cases that are cited by the board that section a opinion did go into that but there is evidence that there were it may not have been every five months or every seven months now might not have been an exact wager here but there was evidence that employees did receive regular wage increases they were but what if that's wrong and there still be  eighty three violation off your honor part of that it would be up it would be up to the company to me that argument to this court is simply to put that aside i think i know your point on that it's important to put that aside for the moment if there were not regular  wage increases just assume that for second there were not regular wage increases could there be any through violence there could be a need and again there could be an eighty three violation and if the employer is acting out of unlawful motivation or they're doing it because the unions come onto the scene it's doing something other than what it normally would have done because of the union and there's evidence of unlawful motivation there can be is actually so they're not continuing even the irregular wage increases because of the regular they might have thought it was actually wrong lawful to continue the irregular wage increases correct your honor they could have thought that the the the so called no win position so to speak is actually raised for the first time by the company it's reply brief and twenty two that's an argument that was made to this court in its opening brief the board in its decision at page fourteen of the record did talk the second i take your point is that mail i got your point on that but suppose they this is why the regular and predictable of them only seems so key if they if they weren't regular and predictable then it would have been reasonable for the company  think we shouldn't continue these your regular wage increases because that might be on lawful and therefore we're not going to continue the irregular wage increases i understand well settled on that but it was incumbent to build a record of that for the defense is going to be it's incumbent in response to the board and they argue that these were your regular i thought that's been a consistent argument throughout as a general proposition regular predictable in the context of a section eighty five it was it was totally appropriate for the board in this case to find that employees wore even apart from that situation at the employee's war receiving regular wage increases looking at the chart almost all the employees or maybe a few that are at the outer ends that they might have received a wage increase for a long time but most of the employees did receive at least one if not more than one wage increase during the course of the year and there's no evidence that employees are ever gone over that as a whole the employer i don't know why the no win situation just isn't built into this problem just by its very nature and so what's the employer to do if they say all right we're not we are far from the cat's exception in this case there's nothing like about these things things happen here and there but there's nothing automatic or predictable about either the timing or the amount either one neither one now if the employer does anything it won't be consistent with the past practice and so that will be charged as an eighty three violation will it not and so what are  election the employee was told mr were caught cold employees shower that there would be no raise if they chose the union and i would just point out that the company's entry is challenge that on credibility grounds and asserted that shower cannot recall the specifics of that conversation his testimony have few pages thirty five and thirty six is that all you can recall all of the details you can recall anything of the conversation except that one line that he definitely recall that one line that's correct but it's right there might have been correct if the wage increases were not regular and predictable for i'm not speaking a one point i'm just saying to carry over the eighty three on this point really and then the other thing of course was the same and that was made after the election when an employee asked about a raise that he was expecting to receive and at that point mr president were coxwell the employee that he can get a raise because of the whole union deal and that everything violation the one re man eventually found that there was no after the court after the case came back to this court after him and ultimately found that there was no section eighty five i only asian and again if the company's argument here the board addressed some of the court on their taxes and your honor said in the words brief and they're not on this particular exact situation the board has recognized i believe with an affair with his court to provide apologize that and i arrested termination tax obligation presumably because they understood that it was a gift they also understood as a board recently found as essentially a term of employment that was being given your earlier this i couldn't be doing but they haven't been the initiator a lot of decision which was adopted by the board actually did did reference a case where an employer had tried to argue that it was coming from the individual owner and not the company and that would be the h receiving a christmas paintings from the owner of the company even as to that though i think i mean it's not quite the cast tessa doesn't have the automatic but it seems to me for a timea reasonable expectation is part of wages there has to be some stability as to what you are receiving and some of yours i guess it's a raffle ticket so you might get something you might get nothingness and there's a completely erratic amount and bonus for him would be unfair because he just started and that's pages twenty six and there are twenty four of the decision in forty nine fifty three of the testimony of the appendix employee gravel he started in two thousand and eight the evidence indicates that he went from one hundred dollars to three hundred dollars over a period of several years and that's what wage i mean this wasn't the most compelling case right so you have two thousand and eight only one agr only want to get one in two thousand and eight and two thousand and nine all we have is that gravel said he got some don't remember what twenty ten no one got anything and twenty eleven we've got is a lonely year you have all three of them getting something and one of them increases but if there is not either sufficient time period or sufficient predictability is to let their getting you're going to have them player back in the right has has the morning winds tails limp lawyer loses situation because whatever they do someone's going to say that's not what i should thought i was going to get until the very last of predictability inconsistency seems relevant to this issue to me as well why am i wrong for thinking two points first as far as the overall amount of money president would co knowledge that he spent about ten to fifty thousand dollars a year so we have a general framework and as far as the individual employees there is a consistency there is one year we're mr woodcock or president woodcock approached the employees in whether they would be willing to give up the christmas bonus because an employee's house had burned it and so that's why one year nobody received it the company know how that helps you haven't hurt you that seemed entirely unemployment related payment and it all went to one person and no one else got his it's like he's just you know as consistency again there are the three employees employee shower he started in two thousand and nine they are waiting right now like he had to come here to go to the safe and he felt like he had to go to the employees or he just wanted to give a heads up by the christmas party was going to be a bit different  just very quickly in employee shower he started in two thousand and nine there was some confusion about the year that the money got donated to this one employee but apart from that his testimony was consistent in the context that he had initially gotten a fifty dollar bonus an obviously the board characterizes this argument was the testimony from president we cock was it was ten to fifteen thousand haven't you heard the as far as the pay increases that would be that would be a determination of compliance matter and as i tell people frequently i find myself to be short for my weight the perfect weight for six to look at the cases that are cited in the briefs are pretty clear in my mind if the employer exercises discretion as to i'm out timing or who gets the wage increase then it is discretionary it is not fixed and it is not predictable when you look at the chart that was developed by the dissenting opinion of the board it very clearly shows that the wage increases were not fixed predictable and typing they varied over time the question you asked is what is this is about how do you figure the amount in question is perhaps answered with a big question mark by the document that was produced by the compliance average the classifications wages or maybe i will average the total wages and give each person at that flies in the face of being regular and predictable i find it very hard  sit here and in good conscience and straight face say that what happened here was regular predictable wages which is what indicates it's also interesting that they they turn gifts from the woodcock's gifts that mr miscible o'clock paid out of their friends and they change it from a gift to a bonus i mean that's a nice turning the word but these were gifts that's all it was and sometimes a gift is a gift but even if you look at the language about christmas gifts the board said that the responded granted christmas payments to employees rang fifty to five hundred dollars and you look at the actual testimony that of shower says you get along jevon a bonus around christmas time of between fifty and up to five hundred dollars if you look at it w actually got he was employed three years he got one gift of one hundred dollars which would have been his third year there is no evidence in the record to show any employee ever got a five hundred dollars gift or bonus the other employed gavel said you get a bogus in december he didn't mention the frequency or the amount and what he got is one hundred dollars in one year he got three hundred nine other the other whose name i always have trouble pronouncing you've got something to that effect that a fifty dollar coffee ghar ghar and that's the evidence upon which the board found that the responded gave away gifts bonuses of between fifty and a hundred and if it's has to be supported by substantial evidence where is the substantial evidence in the record mr or mrs woodcock did not keep records of the gifts they gave the t the money or things i don't have records of the gifts that i've given to my children and grand kids over the years i don't know what i did i don't know the amount of money they did the same thing they can't be considered a part of the employment because it's not based upon that it's based upon their goodwill and how do you determine it if they provided clothing socks t v s strips how do you determine that ok the total amount is his is ten to fifteen thousand of everything not the dollars and now and there's no substantial evidence to support that i ask that you decline to force the boards or thank every thank you to both counsel the case is submitted