executives were extremely concerned about the guest satisfaction scores which is a very serious problem for a company like this and particularly they were very concerned about the guest satisfaction scores in the housekeeping department made that you have been in operation for a number of months that is six seven eight and you were going back to a situation using this outside outsourced situation there had been just as bad with just as low ratings  before it was taken in house so you're going back to a bad situation and so it just and you know an awful lot of your hurdle here is that we're looking at fact finding not necessarily what we would find but what in fact was beyond the pale they were working overtime that was the nature of the problem we couldn't get the stuff and n h s which did have a track record in the area of office and sort of several hotels and one point in the past had the building of the ability to do that that's the right acronym no longer had an office on long island and there were not a very good prospect for being able to improve your manpower for us probably not quite the right word here  remington's normal business model is to bring all employees in house yet in addition on occasion it's commonplace in the industry two years staffing sources like  agree that the fact finder was a time to find that remington was aware of the organizational efforts are being made by housekeeping staff there was suspicion at most and the board only actively involved or in gauged in union activity at most they had a suspicion that there might be someone out there the board in its finding that the right line element of employer knowledge that the first meeting that the union ever had with any employee was not until july fourth and there were no courts in years before that we've also pointed out of our brief the very limited secrets and nature of the of the union organizing activity that was drilled there was evidence that you just putin has some merit to the concern that you raise that initially there was testimony to tip the meeting occurred after the decision in june was made it's very plausible but that evidence is there i don't believe that evidence occurred before june twentieth when the decision was made and there was really no knowledge of employee that there would have been knowledge on the part of the company that the union was at least trying prior to this decision being made outsource is that a fair statement that there is some evidence of that that is in fact of the board's right that the element and that is the element of under the right lying to us even with this minimal amount of knowledge this suspicion did the cult would that did the company take an action that it would have done  statute eighty three there must be discrimination and resulting discouragement of union membership in the facts here do not point to that whatsoever you're on a nice was your honour's i respectfully directed to the looking to h s s to bring new employees it the only reason that some of those employees were not hired by agency was by a just as independent action of applying the routine screening drug testing even thought but remington's directions undisputed in the record was to hire all of the employees rimington in addition remained the employer became a joint employer the director of housekeeping remained on board with remington the two supervisors remained didn't necessarily know how to do from their perspective the only thing that changed was the name on the page the player on the page they kept the same job they reported to the same supervisors and and shipped over to a church i was like at the same supervisors they did the same god and i think had it been shifted over to a different company they knew that they had a new employer in they did have to fill out a new application and  record they were never told either way were we still saying the employer but h h s come involved as well so it has nothing like that in the record is there that they were explicitly told it's the same employer so what we're looking at is there enough there to for each of the employees that they should have known as the same employer well i wouldn't expect that the employees might finally get distinctions and move conversing with the joint employer theory but they had were doing the same job at the same symbol boxers and their applications you want us to draw from the fact it was the same ploy you do seem to require that the employees had knowledge if you can convince me otherwise but is an important if you viewpoint about limiting still being the joint employer they did not pass the screening age and since independently imposed and the others it's hard to reach the conclusion of from the employer's perspective of what was happening from that the employees would have been discouraged in union membership was the essential element in the statute and and nothing changed you know with respect to those employees not hard by h s s through a chain of causation logic but the analysis really should indicate a point when rimington said hire all of our employees we want you to hire all of our employees independent of that h s s made the decision to flights normal screening measures and you result of that those employees lost their jobs but those employees did not lose their job because if you unanimous they lost their job because h s s independently imposed the screening with respect to the employees who stayed and who would continue continue to do the same job it's hard to infer from the record that those employees would have been discouraged in union membership and indeed i mean why reasonable to say that you know after they find out today jeff sessions their new employer that to your employer play in a pinch out game we've got this and it was a legitimate discipline the discipline was consistent with two employees and gauged them some were conduct as the dissent correctly stated because there was no concerted understanding that this was only found to be in a day one violation and because there was no consent because miss log on it was not engaged in concerted activity i think the anyone violation must all must be reversed bright line does apply to anyone violations in general if the issue is an employer's motivation the board generally so the great majority of eighty one violations don't involve an issue of motivation the issue is whether a particular activity was protected in concert but if the employer brings up an alternative motivation if it's clear that this was protected concerted activity but the employer sets forth a different motivation th uses right mind to to evaluate that i'm not aware off the top of my head of any of this court's cases that apply a concerted activity eighty one right line analysis likes crack not concerted in that she had not actually spoken with any other employees or discussed her activities ahead of time that said what is not undisputed is whether remington thought that these and that her activities were concerted if you look at the email attached to her discharge letter the company mentions in several places it's the supervisor ms pereira mentions in several places that she had been talking  about whether she might discuss with this other employee ten before bringing her concerns again to manager jeff rostik in these are concerns about the about remington's anti union materials this is a pipe char just appeared at the wrong time or in fact far now the distinction made was always to talk with a talking to each other and their welfare the same time about porch where she had gone to some of part of the hotel to talk about pie char don't find that useful in all three situations they were unavailable to do their job at it at all but the other two but certainly this woman had a key time when she was needed near the front desk or in the lobby is that wh of that distinction is that really valid that in the board decision yes your honor and as to those two employees first of all only one of them was discharged the other one was given a warning and then quit it was speaking to each other two or speak one of the discharged and the other one was given a warning and then that in other employee equates other important considerations are those two employees were talking to each other about a sports conversation when there are actually customers present waiting to be helped who are being ignored because they want to be talking with each other here there's no evidence that they were actually any at any customers who were looking for mr condit while she was talking to ms pereiro second of all it's she was speaking with a supervisor during these ten to fifteen minutes and at no point during that conversation did ms pereiro tell her that she need to return to her poster that she was doing anything wrong by remaining away from her post and that also distinguishes it from the other two employees who had been speaking with each other it's stands to reason that if she was speaking with a supervisor who did not mind that she was doing that and didn't give any indication that she needed to return to her post that perhaps it was really the content of the conversation that was the issue not the fact that she was gone from her post for ten to fifteen minutes then finally it's also clear from the record that this lobby embassador position is not one that's always present at all in the hotel there's only two of them on  duty the other one being the employee named ten and so in this is a hotel that's open twenty four seven they sometimes even send the on duty lobby and pastor off to do other things such as drive company van so it's not entirely clear that it's really testimony to say that this was a peak time and that it's important you know there's nothing in her job description that says you will be in the hotel at this particular time or that any part particularly peak time is more important than another  evidence standard the board found that there was not enough to show keeping in mind that under the right line standard or the burden of proof is on remington here the board found that just that kind of common sense that they would water in the lobby is not really enough to overcome the finding that they discharged her for a different if the court has no further questions on her discharge on move on to the sub contracting so first of all one thing that has gone on mentioned so far is that mediately after the sub contracting on the very day that it took effect august twenty first twenty twelve supervisor procedure both settle told an employee a housekeeper that it was done because of the union the judge found this as a fact the board found this as a fact the board then relied on that fact and stated that there is no reason to believe that ms rowe cetera was lying that there's no evidence of fabrication and it would find that and it fit therefore found that that was evidence that they did so for that reason  not challenge that finding or even mentioned it in this appeal you know where in their brief do they discuss that they do not challenge the fact that mr soros statements as part of that conversation with employee murray to torres violated section eighty one  and under a substantial evidence standard an employee eight sorry a supervisor stating that this was the reason and the board therefore then adopting that with no challenge is enough to show that this that that was reason even aside from that the the board going on and discussed several other points and one of them about on to whether remington when remington knew of union organization  the running to mention during arguments that there were two interrogations that the board found for sure that only two it happened to be four to twenty eighth and that neither of them yielded any information about employee if she was going to an upcoming union meeting and this would have happened just about very shortly after when the first union meeting was initially scheduled so it certainly stands to reason that she would have known that actually there several different dates but they were all one of them was in early june and the others were in may so she said she was the one who said it was a couple of days before son's graduation which turns out was at the end of may and then at another point she said it was about a month before son's graduation the the l j didn't really resolve that difference he found that it was sometime in may and didn't specify beyond that and the board adopted that finding but that you a finding that the company did know or suspect you know it's suspicion is enough for knowledge if that's still what ends up motivating it but the board sound both here it's not just a suspicion of general union activity the board found specific knowledge of the union activities of its housekeepers and i want to make sure that the board was taken musician that it might have been going on and that's enough region that sort of animal should get unions even if not occurring and that was the motivation that would still be a violation and a one of three yes your honor the board does that is a position that the board takes again i don't think that's necessary to get there here because there was how proceed or oh sarah found out about this there was a union organizer directly going in speaking with employees and it's not he may not have known who all the supervisors were but that's that's speculation it's not clear mistress arrow didn't testify so nobody asked that question of her the court has no further questions on knowledge moving on to the encourage or discourage a point i do want to point out that although the dissent mentions that issue it was something the dissent brought up on its own remington did not bring this to generally the board will find that if there's an adverse action against employees there doesn't need to be any further evidence of specific encouragement or discouragement in the board is steadily found that for more than almost forty years  be the sea change would be instead of having the right line analysis which is if there's an adverse action motivated by union union conduct that's enough to late section eighty three you would also need a separate element to show that union conduct was actually encouraged or discouraged as a result of that first section and that had the board simply doesn't require that even if it did  it's and as to whether employees were actually encouraged sure discouraging i mean that's actually a counterfactual it's really difficult to determine whether union organizing would have been more successful or less successful absent this sub contracting the very fact that remington remained a joint to employer is somewhat immaterial nobody knew that at the time it's not just that the employees themselves didn't know they weren't told by remington or anybody but nobody actually knew for sure that they would be joint employers this wasn't found until the judge's decision in may two thousand and thirteen that's the first finding the board made that these two two separate housing supervisors that would be under age assessors control and it's totally it's not clear whether that would be enough to defeat a joint employer finding but the fact that that didn't happen well in two ways your honor first of all what actually happened when they found out and what employees testified happened was that they told they had lost their jobs they were not employed by remington and they told that they were told that they would have to be rehired by h s s now it has had made a commitment to rehire them if they passed for certain background checks but employees did have to reapply for their own jobs again and some number of employees it's unclear in the record exactly how many acuity lasted for today your honor it was a couple days for most of the employees apparently there was one employee i believe was on leave at the time and had a lot of difficulty getting rehired in a timely manner and had to wait for  s person to be on the premises to accept or application but for most of them housekeeping staff it was very good i think of when i look at the fact that whatever kind of discouragement might existed it very brief w honor again that's assuming that the employees would have known that there was a different that they could still unionize and with both employers they could have petitioned to negotiate with just h s s but then they would have had to only petition for the housekeepers who had been sub contracted because otherwise under the board's joint employer law if they petitioned for a group of if they petition for the initial unit which larger and included some more employees besides the subcontracted housekeepers they would need the permission of both entities to include those other employees who were not employed by h s s in the year when asked about the law gets lots of help on  the extent discouragement is what we're looking at is the circuit board law that temporary discouragement which proved to be without foundation is not enough that you need an actual impact of some sort discouragement in recent court cases is because this isn't a separate factor where the board looks at is whether there was an adverse action taking and firing employees and telling them they need to reapply apply for their jobs including many of them not being well your honor the board that's not what the board was presented with here it wasn't going to the factions only today people these people we have the true your honor but there's no evidence that but some of them weren't rehired so that every single employee were rehired and that we're clear from the very beginning there is no gap and claimant for any of them and it was clear afterwards that the employees were able to continue unionizing without any break that might be a different case from what we have right here i can't speculate as to what the board would say in those circumstances but here what we have is that some employees were not actually rehired than police were told that they need to reapply that it's a lot of forms and send them in so record about employees who didn't apply for their jobs whether there are any employees who didn't apply and all of the employees who did apply i believe there is only one employee that either remington or h s said they did not want  reemployed for reasons other than drug testing or immigration issues so for all of the other employees who were not rehired it would've been for drug testing or immigration issues in the air is not enough to overcome the supreme court's clear statement that the statute is clear there must be proof of discrimination and you must prove actual discouragement case and a case like this where you have only a suspicion of activity union activity no evidence of direct knowledge and in addition you have a clear strong evidence of the legitimate business you think this would be a sea change i don't think so i'm in the supreme court law on this point it's a very straightforward point i understand of course the methodology of proving animists under the right line that's not really changing that law but that law did not change the fact that the statute specifically requires as the supreme court said both elements there must be prove the discouragement and you have to look at the facts commonsensical here there was no significant break the employees came to work that day they were told i think the day before to morrow you'll be working for rachel says they filled out the applications they really went right to work there was no break the hotel is a twenty four seven operation and they have rooms to clean i think there after over a period of a week as applications were processed that is when h s s for its independent is that the company had a terrible problem of desoto and it had been fixed after six or seven months of this new ownership and something needed to be done i mean i guess some commentary losing the flag i asking us to do them in a simplified into one matter when you have the raising money what things that is that despite the very good reasons your client had to try to take care of this housekeeping problem they had and there are other motivations there is knowledge of union activity whether you agree that there was or not there are facts there that we need to say is there some evidence to support them you have some sort of global answer all of that for me to keep me on track from your viewpoint it's a balance in your honor again there was no proof the judge did not make a finding of actual knowledge just a suspicion of knowledge that there was apparently a union organizer doing something in the hotel but then opposite that you have the evidence and the company had a serious problem that they had to deal with and then at the end of the day was there any discouragement of you membership facts are loud and clear that the union kept falling is petitioning and that's a support gro