your honour's among the central principles of law is the importance of words and there are four sets of words that are critical to this case locked out at this time permanent replacement and open positions the record demonstrates clearly  is no striker who never claimed to have been discharged the union itself never claimed to that there was a discharge to the contrary committee outset the union took the position that the strikers had been locked out that fact is fatal to the claim of destroying its fatal because of the that there has to be an actual employee you cannot have a better as what you just there is no case that specifically rules on this issue but it was not just the lawyer or the treasurer for the union the union being the sole negotiator authorized negotiator for the striking employees but also the executive director of the union who made that statement made that statement  consistently made that statement in the course of negotiations all of this is in the record and if we are to look past that fact then we are into the realm of the hypothetical which no longer becomes an objective standard but over retrospectively apply a standard that is subjective because the board is coming in as it did here and saying after the fact we believe we are looking at these circumstances and we believe that a hypothetical straker kulu could theoretically conclude that he or she had been destroyed and with respect that is not an objective sta if it departs from that president must offer a reasoned explanation for doing so there is no reason to explanation here for departing from douglas auto tech and respectfully in that case been a discharge the union would have filed a charge with the board to that effect and no such charge was filed in this case moreover you can look to did not subjective issues to determine that there was no just charge because the strikers learned from third parties unrelated to the employer that they had not been discharged for example through the fact that they were not able to access their four hundred one k money in the in the reduced to one of the requirements of the plan was that they in fact be discharged likewise the maintenance  do not support that a change of circumstances that gives rise to the discharge quite the contrary the complaint states that the only basis for the discharge is the december twenty second  letter from sparks attorney v the the problem with the refusal to be allowed back in under that construct is brief the only other example given by the board to justify this is a reference to picket line violence in the december twenty second letter so we have nothing that's after the fact with that but that that is not the reinstatement under laidlaw which occurred in august of two thousand and fifteen was and is not any sort of basis from which and we could determine that he or she had been discharged that is again that is compliant with with the laidlaw of litigation that is the reason sparks in in response to the strike declared its hiring of permanent replacements no later than may of twenty fifteen having meeting notwithstanding that the union made no effort to ask for the preferential hiring list until late august twenty fifth so obviously the union did did not consider this a critical point even though it was actually meeting in may and acknowledged that the employer had made this statement at least at that time if not about the adverse inference it was harmless i understand that your honor what i what i'm trying to point out is that because the aerial gerri here as a matter of fact that the board had not produced these critical documents the adverse inference falls when that fa and i will i had reserved two minutes for  that you can't discharge employees who are locked out and the reason that's relevant here is that the board found that the employees were not locked out they were in fact discharged now this is the sparks relies on the lookout idea because it sends its response to the employer that is perceived employees have been locked out the problem as with if they are brief is a determination of whether employees are discharged is an objective determination based on what's the reason why police would believe in their position i'm sorry you know and employ your could think it was locking employees out but if it didn't you no way that created in a reasonable employee the perspective or what it is i'm happy to look into that if you like because in this case the board found that employees recently thought they were discharged i didn't go into that and it could be including some facts that were involved in  issue here your honor is that you have an employer who is saying various things and then relying on the unions perception of those things but the unions the unions position as the bargaining representative reinstate the that issue turns on whether sparks carried its burden to show that the replacements were permanently higher before the strikers meet their offer to return to work and so the question is when were the job offers the records the whole records issue is that i'm talking those who talk about the other person for instance on her yes yes so actually answer the terms on which then there are they there as temporary employees are they there as permanent exactly replacement and so it seems like a tempest in a teapot to focus on every inference from those started getting paid and we know from this court's decision gives an greetings that you can work for an employer for two months before you actually found to be permanent so i guess it could have proved that they were not there as somebody you could have shown they were not there at all exactly what the board is saying is you're in a very messy situation here you don't have specific evidence as to when the employees signed their offer letters you don't know exactly when they started any of that evidence can help you know push you in one direction or the other but that doesn't mean that specifically as to this evidence of when they started working that would be somehow a silver bullet you know  and ever said it was locking up the employees in they were told the unions were looking out the employees it was the unions response to the employer saying we think the employees are locked out the in the you've been what i was saying is that the union is not transmits that offer to the restaurant however work comes to the employees perception of the employee's actions it's not the union's job to articulate those weather to the employer or even to the board and also it would be unfair to hold the employees responsible for the unions mistake in this case now if there was a dense if there was at that instant the union had communicated to the employees we think you're doing walked out don't worry that would be a different ballgame but we don't have anything to say s to the extent that you're saying then my letter destructively are productively communicating to the employee they make a big deal out of the fact that he said we are unable to bring you on at this time and maybe there you or staff you we think you've you've trespassing committed property damage i think i think the board's inference which this court the first two employees reasoned with police would consider that as sign that there terminated rather than they would look at the fine print the sale we still have a job i think the board's inference is more reasonable than sparks's on that point and i would say that even if there was any question on that issue the further you progress and you the douglas auto tech case does not stand for the proposition that an employer cannot discharge locked out and police to the contrary it's it goes to the issue of the status of the employees and says that when an employer acknowledges that an employee is locked out the employee has not been discharged the reverse is applicable employer but is not in a conduit from the information coming from the employees the lack of a discharge is manifested again by the lack of testimony and the burden of illicit any testimony from any of the stewards employees about discharge about the indicia of discharge had they filed a claim for workers compensation had they been able to to cheat to nobody nobody there well there was actually uncontroverted uncontroverted testimony from the security company itself or the third party as to what it happened in terms of broken relevant only to the avery heights issue it wasn't a claim of violence that was being used or ever used as a basis for a discharge quite the contrary in the in the negotiating sessions in january  fifteen to which mr souder made reference there is testimony that at those meetings the status of the employees was reiterated to be active employees that is inconsistent discharge we don't have to look to douglas order tech to get to the issue of discharge being impossible here inconsistent with all of the facts in the record we we can't look to facts not in the record we've hired permanent replacement for you because they're committed in their field and when they communicate that they hire them but they're saying that and yet whether that's true or not is employer know oh that must be i mean think about how people take things they shouldn't take personally quite personally if you're accused of being really a bully and having having committed  return the strikers at this time and that your anger management and then return no well a cooling off period in a strike is not an unusual situation right and that's actually what happened here because had the intent not to return how do we explain the immediate contemporaneous creation of the late wallace and the leader use and implementation of the laidlaw list and the reinstatemen of one by one by one every one of the strikers and contrary to the statement made by mr souter the poster has been placed with respect to the solicitation issue and it's pointed out in the brief we didn't argue that issue because obviously if looking at the comments of mr cup of as it was a statement made in his personal capacity that was contrary to the interest of sparks right because statement but it's not and there's nothing in the record before the court about what happened post hearing to comply with the  herring the offer letters were not introduced to demonstrate the start date because sparks was led to believe that the issue of whether they had hired permanent replacements before  unconditional offer to return to work was not before the ale j v the only reason the offer letters were introduced was to demonstrate the number of permanent replacement because the general counsel made no reference in her opening statement before the gale j that the issue of whether sparks of hired permanent replacements was before that body the only issue raised by the general counsel of the respect of the permanent replacements was whether the sparks had hired enough and there do two cases that are critical here the red herring issue about the date of signing the letters is is demonstrated all of you were permanent replacements there was no counter signature wire no statement required no world acknowledgement required the other and that is what happened here the in answer to your question they wouldn't have the such records if they showed these hires had started working on or before december nineteenth we have tended to substantiate sparkes position that they were permanent replacements and that is what happened instruction did the issue should be remanded to the board with the direction that the records for that period be accepted into evidence and and be used to determine the issue of p