the next case this morning case number three is jam productions versus  evidentiary hearing to address the employee's objection filed in response to union conduct before the election under the board's regulations in the case law it party isn't titled to an eviden hearing if that party raises substantial immaterial issues of crack sufficient to support a showing of objectionable conduct the board and the union concede that neither side can offer a discretionary benefit to employees before the election as this court stated in and larbi versus river city that's objectionable because it smacks of vote buying election we did not present any evidence in our offer of proof because mr hoffman was hostile to us we understood that he was the individual who was helping the union refer these individuals we asked the regional director to interview him we identified him in our proffer he was hostile the regional director not only did not interview mr huffman the evident that the record shows that the regional director didn't either requested union records which we also identified in our offer of proof records which we'd asked the union to provide which would have probably been dispositive of the entire case records which would have shown the number of shows that these individuals would have worked before an election was ever scheduled and the number of shows afterwards we asked the union to produce those records as well they refused we asked the regional director to examine those records and in the case handling manual which the board publishes and it provides guidance to the regional directors he is supposed to under one one three nine four point one ordinarily investigate all objections including interviewing witnesses and examining records he didn't do that well in fact true and the regional director conclude the election and that is the essential issue in the case your honor ok the regional director found that all of these employees were eligible for union referrals any member of the public is eligible if they have stage hand experience but read our objection we never argued that they were not eligible for this work we said in our objection they were not entitle to it they needed to be assigned by the union for this work there's a fundamental difference between eligibility and in title meant they needed to be assigned this work by the union it's a substantial benefit again which is quite the first two as subtle vote vote buying when in a ploy in the unions discretion is provided benefit prior to the  period before the election that you're alleging the sole bribery took place at the shocker or been assigned to union work while the in the employer that this was a regular crew at the riviera theatre right a non union venue that they ever gotten jobs had union venues prior to the month or two before the election where you said there was an increase in that there was a a lot of union work they got there yes well of course this is information insult possession of the union these are their records we're not privy to that information again we asked for that precise information your honor but we were not provided it regional director apparently did not request it even though it was highly relevant to you on cover or offer to provide any testimony from union employees who were not chances for more in the weeks preceding the election who themselves believed that individuals from the shaw who were taking work they would otherwise act to get what we did your honor again because we're not privy to union records or record keeping what we did is we pointed out this employ early in the year well before an election was scheduled promoted three huge shows at the united center this employer paid three hundred forty four stagehand three hundred forty for the union did not select a single member of the show up crew for any of this work this we know because we had the payroll for the three shows yet our offer of proof points out that you know among other shows that the shot crew did work during the critical period before the election was a show at the united center so we compared what we knew about the show crew working shows well before an election was forthcoming and when everyone knew an election you know was going to be held soon and what we showed was if you look at the comparison evidence they weren't working shows to our knowledge at the united center while they were we knew they were not working the shows at united center earlier and they did work a show at the united center at the auditorium theater at northerly island at soldier field and grant park during the critical period but had that fired for part of the period part of the period that misfired by you yes and that supports our our case your honor precisely because earlier in the year when they'd been fired they would have needed to work that's when they would have needed to work but they didn't work any of those three hundred forty four they didn't fill any of those three hundred forty four slots earlier in the year during the critical period they were back to work they did they were turning down work at the riviera theatre because their work in union jobs that's how we know this happened we know this happened because we were offering them work at the review where they were turning it down because they were working union jobs so this comparison creates a substantial immaterial issue of fact as to whether the union selected them in its discretion because an election was forthcoming now the the offer of proof first of all you know identified these individual shows i've referred to we've provided the performer the date of the show the location of the show so we demonstrated in our offer proof that this work was not isolated or sporadic it was concentrated during the critical period before the election and when the union assigned members of the shaw crew for this work that meant they were not picking regular union members or other nonunion stagehands so again what the rich regional director did was he simply found that the eligible for the work anyone can can be assigned this work and so it follows from that this was not a discretionary benefit because this was nothing more than business as usual but again that was not the objection we presented our objection was not about eligibility it was about entitlement to the work it was about the fact they were being assigned this work by the union and this is a substantial benefit which this court has found is a subtle form of vote buying and then we get to you know the argument which i've already alluded to which is not only did the regional director not consider whether the shaw crew was entitled to this work he failed to find out despite the fact that his case handling manual again if one one three nine four point one says all objections ordinarily should be investigated and witnesses should be interviewed the records should be examined and we gave him a road map to do that we gave him the e mail that i had sent the union asking for the data to show the number of referrals earlier before an election was ever scheduled or forthcoming and the number of referrals and again if only the regional director had requested this information we probably wouldn't be here because it would resolve the case we expected this data to show that there was a spike in referrals once everyone knew an election objectionable conduct and he went out of his way to say at this stage of the proceeding because remember we did not have the ability to subpoena anything we could not subpoena records from the unit until a hearing was schedule so that was the catch twenty two the employer was put in but judge fowler said in a player at this stage of the proceeding doesn't have to prove its case he doesn't have to prove his case because he hasn't had the ability to subpoena witnesses or records important simply some title to hearing if the employer has come forward with a substantial material issue of fact which we collins please the court good morning my name is valerie collins and i represent the national labor relations board in this case the board apply a longstanding judicially approved framework in evaluating whether the company was intitled to an eviden to provide the records the jam productions requested why would it refuse to just causes hiring practices if it had done nothing wrong and the we spruced see action so answer question no there is no adverse inference here because perhaps there would be if it were hearing but here this is not we are accepting the board accept everything in the proffer in the company's offer of facts as true  and there's there is no adverse inference and the reason why is they don't have to it's not on the you didn't unions side or it's not their burden to show that what they were doing was a ok it's on the company it's  objecting party and it's a very high burden for a reason these objectives we start with the presumption that all board conducted a large sions are presumed to be fair in it that makes sense we presume that  people mean what they say so if an employee says yes we are in favor of representation or no the board is going to presume that that employee means what they sung and that's the burden on an object and party is very  you request i me you you you you refused its request to provide any information about who work jobs and in the critical period before the election well what do you want the board did not refuse that the union simply didn't respond to its requests i'm not sure if it was an affirmative yes however it's not the board's job to make the company's case for that it is not the boards and i'm going to spike the catch twenty two it's like a catch twenty two so u but there's something a little off here i think a simple answer to your question is that they would be able to show some type of wrongdoing if they produced any evidence that was similar to the evidence that they had for the critical period so what the company could have said is this was unusual we have never had as many people crew were rarely offered union jobs and their odds of receiving and coveted a higher wage jobs went from nearly zero to nearly one hundred percent in the weeks that preceded the election that is something there's  y raise an eyebrow if that were a fact that is absolutely unsupported by the proffer there is nothing nothing in the proffer that suggests that there was an increase but these were highly coveted that they were super high paying there's absolutely nothing there to suggest that this was anything besides ordinary and one of the things that the company wants to highlight is the difference between and in title meant in eligibility for a benefit and i think a simple analogy would be helpful here because essentially what they're arguing is because there we don't know how the union system worked in terms of you know if it was on a meter or whatever how much discretion they had  that's a problem well guess what so are bonuses there's discretion in bonuses as well i mean if this election happened at the end of the year in a union was complaining hey these employees this employer gave all of its employees an year end bonus and there's a problem with that you know that's insufficient i mean the player could have been giving that bonus for twenty years in the same can be said here they were not able to prove present any evidence or anything back that says that there was anything unusual about what was going on here what is the harm and investigate you didn't interview happen correct well i personally don't know your guess the board did not your client didn't work in that what's the harm the harm is the precedent that it would set if if the board is required to interview based on this flimsy factual proffer i mean the board would be hurt but that's all the regions would be doing what more would you want from them by way of a proffer given the fact they don't have subpoena power  they have uncooperative people they have witnesses that while cooperate you have subpoena power you have the ability to investigate what more would you want from them but they haven't provided i think a really simple thing that they could have done to simply say this was unusual we have never had this many people turn down jobs before based on based on any conflict that at union venue's if they had even alleged that fact that would have been something they didn't even do that they said oh well in these two two or three shows in january in which we had fired these people they didn't work our shows well so what they were one they were fired doesn't show you know the unions referral practice there anything the riviera and they were not hired for jobs the united center and then right before the election having been rehired at riviera nonunion shop they end up getting jobs there's literally nothing before the for all we know this was just business as usual and under their burden to get an evidentiary hearing evidence you're hearing there has to be some type of factual issue so here they were able to show yet employees got these referrals they got these union jobs in the critical period without more that's that's not an issue because that in itself is not improper there's nothing improper about giving a benefit in within that critical period if it's just ordinary the problem is if it's new or if it's different or increased and that's where you get the implicit vote buying issues here they weren't able to present any any of their any facts at all i mean they have this one manager who said yes they were all these conflicts they have their records that say in these two or three shows in january and february they did not work even though they were presumably eligible ok that's fine and then they have another guy who says again well these people were fired that they didn't work he shows the rest of the proffer is  huffman saying that you know he would it was common knowledge that he was the main contact between the union none of this is supported by any fact that the that they present it you have them saying that the  stagehands that they may call all twenty one and twenty one of them and they would support their theory there's zero fact in their proffer that would suggest that they also have the union records that they say will double that will proffer is anything about any comparative or i mean they're comparing apples and oranges there's simply nothing there because they think it might be or it's a theoretical possibility that's just simply insufficient to trigger the board and hearing i do want to just mention really quickly because the company mentioned in opening the investigation issue as we stayed in our brief this standard for a region to the keys handling manual which is not binding also i until last night i apologize it doesn't say what they're saying it's said so the case handling manual does not say that a regional director ha to ordinarily investigate these things because the section that they're citing is for when the hearing is actually held and it says that all objections ordinarily should be considered at an evidentiary hearing not that all objects actions ordinarily should be investigated and i think it's telling that there's zero piece citations for that premise so if if there's if you're starting with kind of an underlying and that makes sense because otherwise regional directors would just be investigate and that would never be their whole job anybody could throw anything against the wall into it sticks and then they would be required to ordinarily investigate and that's simply insufficient to trigger an investigation and in the same way that one thing person be saying the opposite or whatever and the board did not hold a hearing and what this court held is you know that's an issue of fact because you have that conflict that's an issue of fact in the board should have held a hearing here there's there's just nothing they are and there's no conflict it's under stupid that the stagehands were working union events during the critical period that alone is insufficient just in the same way that oh if an employer gives an employee at end of the year bonus that does not automatically assume that there is some kind of hidden vote buying purpose there has to be something more shown based in actual fact i thought there was an offer proof from iraq the money that at least thirteen unit of the police who later voted in the election worked jobs at union venues during the critical period and he knew that because of text messages where he tried to get a work with the riviera they said i can't do it i've got this union jack this is a union job i got this job at the northern island or union or united center or the auditorium given the timing of that doesn't that at least raise some suspicion to make some type of investigation appropriate no i'm sorry for the unsatisfying answer it really doesn't there's nothing inherently you know improper about using a union referral system in the same way that there nothing inherently improper about an employer giving a bonus of course have to but not if they have the timing is such where they didn't have union jobs when they were available and looking for work and then all of a sudden they're rehired by the riviera by g m they have union jobs available and they have their regular jobs available nonunion jobs and then all of a sudden they get all this union work right before an election and certainly well there's series no all of a sudden and i think that's the key point here the fact that the turn down two or three jobs in january and february does not show that that was usual that they never worked these union shows before that there was a spike where they didn't get that in turn down your new jobs in january effect where they didn't get offered they didn't get they turned down the jobs that the company had at union venues so that's what they're saying that's where the computer tour that they're using comes from these two or three shows at the united center that stagehands turned down that they were that they had at union venues i mean there's a whole host of reasons why anyone would turn down a job it does not want to magically mean that there's something improper about the unions job referral system and i think that that is a fatal flaw that they cannot show there is anything new or unusual or or improper about these referrals at any time let alone during the critical period i think it would be different if they did say hey but this was really unusual we never had people have these type of conflicts before that's why it kind of piqued our interest no they think they didn't say that he could have easily said that but they did not offer that and so the board found that was insufficient i see that my time is running short i wanted to just very briefly on the challenge ballots i think it's a pretty it's relatively straightforward  so the date in let me back up the stipulated election agreement says that the date of the election is to be true to be determined it also has a very clear cut off for the eligibility but the board did here is simply look at the un in big u s terms of the stipulated agreement which it considers to be a contract and apply it so if the court has no further questions we would ask that the the  have two minutes thank you for the level of evidence that counsel says we must come forward with to show that there was a clear anomaly between the number of referrals prior to an election being forthcoming and during the trickle period means essentially we must win the case to make our offer proof because if there was an anomaly then there is a violation and we w that is not the standard the standard is did we provide sufficient evidence to create an issue of material fact and we did and the regional director you know i've got the director routinely investigates objections raised by parties and sometimes objections are handled strictly based upon the regional directors investigation we came forward with with with evidence showing that something was definitely fishy here we provided the regional director with the roadmap for an investigation because we were not privy to information that only the union had and w not produce and judge or broken or is right this was a classic catch twenty two you know we had to come forward with a level of evidence according to the the board which we could only  employees who were hired right off the cutoff right after a cutoff date and the stipulated election agreement ordinarily they're disqualified but this was not an ordinary situation because the very next day after the stipulated election is eight the regional director blocked proceedings the election was delayed seven and a half months these individuals they have the same interest in the outcome of the election as anyone else they worked more then some of the other voters and under the key quote decision which we discussed in our opening and reply brief they should have been eligible to vote thank you thank you thanks to both counsel and the