contacted us the only with the only way we found out that the subpoena was not complied with was when we showed up to the hearing that day they could have called us and you could come expecting the tool that's a neutral site they could have brought up what was in front of the workhouse  ones who started this and this is being union activity the court in greater omaha stated that there was no one was for surveillance because that statement meeting while those two employees were being terminated cannot of course or restrain their procuring inactivity in so so it could be deemed surveillance so i don't see how that puts you didn't make the argument before the word it seems to need that you can't make a new argument here is going to strike tomorrow we're not a part of the n c d c i'm asking you are you going to strike with them or do you want to take advantage of those are to me to make as much money as you want we'll let you come in early let you stay late fall in business for one them certainly i'm prepared to discuss those and if your arsenal questions otherwise i will respond to the procedural claims that they have opened with as where in the walmart decision of the case handling manual busy ala jake at the discretion that are are not to show they are shown for the limited purpose of cross examination in the board's p c and let me and which i make two points about talks about that they may be permitted to retain nine if counsel for the respondent desires which they did hear responded may be permitted to retain the affidavits until the hearing is closed provided that there retrain for legitimate trial purposes that's not the man that was the that was the prior language used to be correct the footnote three in walmart which is cited and that language was if he so desires counsel may retain that language was changed at some point to the language that insisting citing wal mart that he had the right to retain sight in this decision and neighborhood and all that there's nothing preventing them from asking them again it's hard to know what you want to ask if you don't have the information from we're on or they've got to counsel gives to review these before they cross things if you look at them in light of the direct examination that went just went on it certainly in my years of the board often people that when they go to cross examination they're doing for the purpose of impeaching a witness because the testimony changed it again at the hearing much like the sequester issue they were asserting some type of a right to something but not making any type of showing even a bare minimum explaining what the what the purpose which direction a little bit absolutely  having knowledge of the employees union activity and the exception to that is in the mass layoff context but here that the board suggests that that that principle is not cabin to cases involving numerous discrimina motivated was a motivating factor in an adverse employment action and right line is a test of the board you run it has that has the board satisfied has it to the general counsel of all the elements of right mind in this case it doesn't seem to wha did your honor because the general counsel's theory of the k yes was that based on these statements that had been made that the the motivating the motivation here was not individually whether either of these men did but it's that then these technicians as a group but then how does that fit within right mind which requires an employer's knowledge of each individual's that we want of that is understandable in a case where the adver action is predicated that the theory of the case as it is predicated on what that specific and what we did certainly in a very traditional write one case based on circumstantial evidence we don't have the admissions that we have here in union activity he's going to have to show the employer knew about that these are going to have to show some type of animists whatever his case is going to be here the general counsel's theory was based on the evidence and  certainly a unique case it's very novel it would be from my perspective wonderful of all of my bright line cases have undisputed statements basically you know for geisler the board talks about that this is a veritable admission of that his layoff was unlawfully motivated and you certainly will be canvassing discharges probably you know your honor there are cases which are sometimes known as black sheep white sheep where employer in order to get rid of the union here is discharges people who had no union activity or might have been against leave but they're still protected by the act was messed laughter she was there prior court precedent that said you don't have to these direct type of admissions of the normal motivation that are credited in undisputed as we stand in the court of appeals and i think you know to blink away that evidence you know unless there i'm over time unless there are any further questions thank retaliatory firings as long as they don't do it on that just three or four people what would have to be a mass layoff because one because we would have to know whether they were involved in the union or not if we were setting the layoff where we didn't have to know whether they were preview or the conduct approving activities or we would have to do it on the straight right like test whether we would actually have to know whether they were approach where did the board say using the words being consistent where they said found retaliatory firing applying the same tax where only three employees were fired then there would be no inconsistency but that would have to be a mass layoff isn't there isn't a rd bracket precluded by the terms of right layoff so so he had a situation where there was an employee let's say the record isn't disputed that he was against the union and he said i i don't want him i want to keep my job i have a sick wife and kids and i need this job i need insurance when you lose you know very popular employee in the in the union gets moved  whether it's an awful terminations charge or it's a disciplinary charge and we just have to be separate wouldn't it couldn't be unlawful termination if we do not know or when you're in your hypothetical just wilkins that we knew that he was not pro them or teach them a lesson is to fire this innocent guy who's going to lose his job and his insurance and his kids as wife or so but that will teach a lesson that when we come we won't even be able