position is that there are four basic reasons why the respondent national labor relations board decision should be reversed starting with the premise and this is been consistent from the very beginning that the employees should have the ability to have free choice to determine whether or not they want to be recognized excuse me represented by the united steelworkers i'm number two the board's finding was unsuitable unsupported by the substantial evidence in the record taken as a whole and three this court's own precedent and then number four the board's remedy doesn't affect you a policy of the act which really circles us right back to  the st point i made which is allowing the employees to have free choice and it starts from our perspective with the the petition to withdraw petition or have objective evidence at the time of the withdraw that the union had in fact lost the majority support consistent with levitz unlike leavitt's though there was no evidence provided by the union at the time of the petition that was contrary with levitz and we believe that that's not correct st of all levitz from our perspective doesn't require that evidence be unambiguous and that's the board's own decision in diverse a care leasing cor and only that the employer shows a loss of majority supported by the preponderance of the evidence as noted in pacific coast supply here there have to in fact  here fully through sort of name by name by name on there and and senate just wasn't able to that it wasn't in fact reliable evidence of this document was such a kind of hodgepodge in this petition the record shows was presented to the employees in a package and yes the st and last page had language very clear unambiguous language and the middle page did not  the record shows that everyone inside those to testify and particularly those that justified that that signed the page that was blank recognized what they were signing again and the the record shows that it was presented in  that same package that's not what the algae found because in fact according to the algae there were two different people collecting signatures it looked like on even the same days maybe it was october th and i got my dates right so that it couldn't  what had happened was the original petition or the original employee unfortunately had cancer he handed the packet to another individual to complete the signatures but it was handed in a packet and then given to the employer by the employees council not even a group of employees but the employees had separate counsel he presented the package along with a letter demanding withdraw and that is the basis for the employer's reasoning that it in fact that the union had lost majority support exactly mr kamali but that's i think that's the difficulty that the board found the board didn't recognition that decision was the petition and if it had also had before it information from the employees who circulated it saying you know we always showed them the front page and we always talk to them  that would present a different case but the board has held that the kind of after the fact evidence that wasn't before the employer at the time it made the decision is not something the boardwalk and setter and i understand that from the perspective of the testimony your honor the employer had what was presented to it as i said the packet which was clear and accepted it as a package because it came from counsel as i said with a letter i think the other important fact to note here and this actually goes to the remedy that even if this court finds that that the employer didn't have evidence that in fact the unit lost majority's or the petition itself in the fact that it was provided by counsel along with a letter provided enough evidence that the petitioner had at least a good faith reasonable d uncertainty that the union had lost majority support and so this goes to the remedy that why didn't the employer then ask for an election year in when you want to do it backwards through ramadan in a proper step from the employer at that point would have been based on the demand by the employees council that it withdrew all recognition or face a u l p at the time and so it made its decision based on the petition and that information in the letter which is why it didn't ask  pretty clear that they know how to stand up for what they believe is their rights in the process and so i'm just not sure why if they thought well this petition a little bit of a math and not repeated language about what they're signing isn't on every page and names are all over the place why wouldn't the company have just asked for the election well again i believe the company's position was in that book that really the names were all over the place and they were ignored or it's just that there was a page that had a significant number of names on it that at the top of the page did not have the information in the package that was on the st and last page and the company at that time made a decision based on the information that it had in front of it and the only thing i might add before i withhold the rest of my time for rebuttal is d with regard to the remedy in the good faith we don't believe that there was a whole mark violation of the act because there was a reasonable belief the board's remedy here is more punitive than remedial it would be an one is just what is the status what has been happening since the employer withdrew recognition and the current time a lot of time has elapsed since the union continue to represent the individuals if you continue to work with them or hasn't been the outcome of the case and the employer and the employees have moved along fine and you know i'm ok and then you had your talk you have talked about here this morning but in your brief about this august st wage increases you and the fact that i'm in gordon did it retroactive and i think was it from december to august st i'm did that include interest i don't believe so your honor i don't know for sure but i would hazard a guess if i don't like guessing but i would say it probably did not with the board's remedy require interest to make them whole or is that just something that doesn't get addressed in this kind i don't believe it was addressed  board i don't have a lot to add beyond what's in our brief but i'll just highlight a couple of points that i want to emphasize the st one is judge clark recognize there was a lot of discussion about this different employees who testified in th but the board so that well you know jay is heavy on that analysis and his decision the board doesn't rely on that for the very simple matter of simple principle whether that after acquiring evidence doesn't matter what the employer what matters for purposes of rupturing the bargaining relationship what matters is what did the employer have before it at the time that it was due recognition so what did it how it had a petition with intent on the top of two pages and then three pages that just headlines and signatures so what the collectors said later the signature collectors or what the employees said later about what was in their packet is irrelevant for purposes of the board's decision here they specifically say after acquired evidence  is not relevant to the finding of the on the awful trial of recognition i just wanted to point that out secondly i'm just i'm a lot of think you are getting at this and i this is the one point i wanted to make about the election on the remedy issue we are four years now after the fact of the a lawful a drawl of recognition so for four years they have continued to refuse to recognize the union so at this point that it's not the board traditionally is not going to say that that is actually going to be representative employee choice at the time that there was actual relationship we are four years after the fact where the union hasn't been able to realize the will of the employee when they voted bunion in two thousand and fourteen and the only other thing i want to  i think i can answer about the interest i don't think the record of this is about the back page related to the august one increase i don't think it's like to think opposing counsel attorneys are all these correct i don't think the record shows that  range of increases would that have been ok even if it had negotiated if it just were in the middle of bargaining here and i'm just going to maintain the status quo we have been ok but it's an unusual violation i'll admit stone container and c x you electric car did you just say yes that would have been ok there would have been no violation not of a violation under stone container and selectric what the violation is so what we had here was a there's been a violation or something else or would that have been there are certain privileges of the employer but you have been one of those is you have to notice an offer to bargain but you don't have to bargain to impasse so i think yes so long as the unions are so long as my board had done something but august st there would their argument and i'm sure mr moderate a correct me if i doubt their argument is look we did it now it's disputed we did it retroactive to august st and so for all practical intents and purposes we pay and on out on actor actress on august st we paid on august st with this retroactive payment so it's as if we had just maintain the status quo so at least that's how i understand it seems like some of the arguments on the braves are gone past each other on this issue that's why i think they understand what happened then your argument is what you need to bargain beforehand but they say look for all intents and purposes we paid august one and you just said it's fine they paid august one we wouldn't be do the same so you know we're going to do x increase notify as of august st instead they went along the employees with the new union and got no increase where they had been getting increases before and only after the employer denies recognition then it says oh and now we're going to give you an increase retroactive to august st so from the perspective of employees looking at what is my union done for me they've painted a picture that is that is very harmful so it doesn't all i'm saying is isn't that why it right but it's so it's fundamentally yes they it's looted the union from the picture so but even if they had withdrawn recognition it still would be the violation certainly that makes it look worse increase came after the union just talking about that now now that we've been drawn see what happens when the unions you know i would if i get up front it's like let's look at a union comes in you don't get your regular august one increase and as soon as they're gone you get it but i didn't but there's an explanation for why it's not in the board decision the board finds that the employer in this case doesn't challenge this violations of the board is going to say anything about if you don't tumble we're we have a problem with your fighting you're not going to see the board say anything other then we 're going to enforce that decision so that's why that's what i was talking about i think at least as i read their exception to they were raised they're very very raising the same arguments just that they have a different conceptualization of it than than perhaps you and the board or the general counsel did they've got this sort of retroactive so nothing happened maintain the status quo view and and so it seemed to me that they had raised and i you know you've given an answer  to me but it's not you know the answer they had a negotiating advance that's the answer that's very different from the this was all meant to this was all a game to undermine the union by union come in no increase and then union goes away and b the employer acknowledged that it didn't start negotiating until august th and thereafter so do we need to go any further than either it just wasn't preserve it was for  did receive it and if you for instance left rolls or left the employer between they are just one and the general one retroactive you would still be entitled to that i think it's got to work out in brackets we're going to make compliance proceeding so  i think it's unfair to say there was no harm no foul i think it's up to the board st to think sure ok there is no harm no foul in terms of the money but let's make sure let's make sure the interest was paid that's appropriate and on top of that all of this also ignores the very fact that the board even under voluntary compliance cases the board is still entitle to judicial foresman all of its decision and at the very least there should be the coast even if there is will compliance otherwise the employer would still be obligated to post a notice to let the employees know we broke the law and we won't do it again so i think that that's getting lost in the shuffle here that there is still a component of the remedy that is tied to this violation even if there is no more money on the table for you know if you one more case law what is the general range for that reasonable period of time and how does an employer know when it's up so your honor corrects the order of the affirmative argument or says that it's in place for a reasonable period of time and i don't know that the board has any sort of bright line in the date certain i think it's all very fact specific just like the barking order itself is very fact specific it depends very much on the specific  imagine that borders and forced and i go back and a year goes by and then a new petition shows up and it's got the words on every single page and it has the requisite number of signatures how does the employer know a faking either with a draw at that point say it's a year and a day or ask for an election can they do it or will the board then say you've committed a violation by asking me a year and day because we don't think that's a reasonable period of time even though we never told you what the reasonable period of time r given that it's a certification bar for a brand new union is only a year i would say that the that you employ or could look to those lines of pieces to determine whether in this instance it continues determine whether it's actually more reasonable now an unfair labor practice say they do it at the th month so i saw some cases that treated this reasonable period of time a six months and that's why it was confusing to me so i say it's of the th month so they can't rely on the one year th month and they go now i've got no choice i have to withdraw and let's assume there's no question about that evidence would it still be an unfair labor practice to do that because the board could later say that wasn't a reasonable period of time or with a more just go no sorry how would that work because the ritual period time is so vague for the employer you know in unfortunately  signatures and intense of all if you just couldn't be clearer there would still be a question about were was there any activity that happened were there any additional ones or labor practices the employer they engage in bad to be party to the employer do other this is none the ideal employer so that you don't have any of those extra nowadays when you've got the perfect petition a month eleven what would you or can the employer ask of them or what are they supposed to do what would you tell the employer to do don't know and i feel like i understand that i'm giving a very un satisfactory answer but i think the best that i can say is that i would advise the employer listen the board had before defining for me administrative law judge of this date certain except six months the board  a reasonable period of time so i think i would have to advise if they were my client i would have to advise the employer listen we don't have a time certain the board has decided that the best thing here is to let the parties bargain for a reasonable period of time we know that they didn't put a time on it so i advise you to bargain in good faith the best you can try to reach an agreement and if that's tails after a certain period of time let's talk about drano i'm nation kilberg on behalf of intervenor united steelworkers union if i might i'd like to take a crack at and rather unorthodox role for me in giving advice to an ideal employer  faced with a situation like the one your honor described it's in my understanding it's never an unfair labor practice for an employer to file an r m petition so an employer faced with we don't bend the order in this and you haven't seen one where they've done one when they have when they're underway to no period of time that's why i was i was surprised at your statement it would never be an unfair labor practice i've never seen a case in which there is an unfair labor practice finding form filing in our own petition and doing nothing else and i think that the order here does not say no when when you tell me the union would not considered an unfair labor practice if i did a month if they filed an r n petition never be an unfair labor practice is just not accurate you're saying now i've never seen one and you know if you had your honor i apologize for the only head in your heart but i think that the the best advice to an ideal employer here would be to file an r n petition if and i do think that it's worth clarifying that during our in petition recognition continues so the employer would not withdraw all recognition during the pendency in our invitation and so they would not be in violation of the order here which i think just requires them to continue to recognize and on request bargain with you so they would still be in compliance with that  clarification election here when there is a petition that shows that there is not what might appear to be majority support f the idea that they are compelled to withdraw our recognition when faced with a petition and a perfect petition i don't think is necessarily accurate you can always file for an   is the right approach and so i believe that that's all the more reason why a scone is remedy is appropriate in this case and over the past number of years has been turned over it's time to give these employees a fair chance at this point to make a employer in this congress case where in fact you know the union unbeknownst to the employer had sort of re obtained majority status and so that farm player had no idea at all and bargaining order the question was you know if you wanted election you could have done that when you got that st petition assuming if you if you had some basis for saying if you if you have to figure out if you thought you had basis for thirty percent you have to probably have done some more in korea much you could have even done that on that petition so it's a question of you know if the employees want something they know how to do it but i don't know why the employer gets rewarded for not having done what it should have done in the st place well we don't we don't we don't look at it as rewarding the employer but giving the employees a choice and the boys made a choice so the point here is that they that the company didn't respect that choice well it did it bit just and it certainly did from the very beginning and actually even with regard to the wage increase i want to make sure we're clear this wasn't a situation where the union got certified companies stop giving wage increases they had given a wage increase the year before after the union was certified i just want to make sure we were clear on that  but they did respect the choice and then bargained and eventually as as we've already discussed received a petition which was you hadn't started bargaining were given the time of the that  fourteen or fifteen i believe fourteen but that there were wage increases that were given after they were certified so it wasn't a situation where they were and not after negotiation mind the union in any way shape or form right me had started negotiating with ing and that's correct that's correct all right your case is submitted