and after an afternoon your honors may please the court matthew rourke for petitioner across responded eriksson trucking service runners the board's application of right line in this case is not entitled to deference in its order should be vacated because the board deviated from its precedent without expressly and rationally explaining that deviation the board's order is unforeseeable for two reasons st right line instructs us that there are two types of cases pretext cases in dual mode of cases and the board must distinguish between the two when an employer is affirmative defense has at least some merit it's a dual motive or mixed motive case and the issue of pretext is irrelevant the board however did not make that distinction here and here the board found that eriksson's affirmative defense had at least some merit in fact the l j and the board adopted his finding found that he had no reason to doubt mr eriksson's business defense and yet the board erred then when  found that it still the reason was pretext nd when the board engaged in the dual mode of analysis it wrongly shifted the burden to ericsson's and held that the company violated the act because it's not rebut the general counsel's prime aphasia case but this is the wrong standard in this circuit's nine hundred and ninety eight dollars case and or be versus for daniel the court applied transportation management and it held while the n l r b can require an employer to bear the burden of persuasion as to the affirmative defense it cannot shift the burden of persuasion as to an element of the general counsel's case and this makes sense after all the whole point of right line is that even if the general counsel carries its prime aphasia case the employer still does not violate the act if it proves its affirmative defense that it would have taken the same action even in the absence of animists but by that exact last point there's an awful lot of evidence here that this was not just about getting rid of crane the search small cranes or big cranes it's just an awful lot of evidence that mr erickson was really from frustrated by what he perceived as a change in attitude at the local and mashed i was having a hard time getting beyond that i mean you can talk legal standards here legal standards there and see coming back to all those just straight up statements in the record which the one thing you is tricky is those w credited those are just free floating pieces of evidence credited them so i just i'm having a hard time with that understand that you're honoring as you understand the legal standards are important and that's the whole point of wrangling that even when there isn't my point is it doesn't matter here i don't know how it matters here that is exactly my point the legal standard doesn't matter here well there's i'm disagreeing with you about that it's amount of evidence i'm just i just don't know how you we know what the test is we know what the statute says what an employer is not allowed to do punish people for doing work on behalf of the union or a union doing work on behalf of their employees we just know that's the key thing and just very hard to get away from these statements from the key decision maker but your honor the board would have you in the board did ignore eriksson's defense because of it was distracted by that animus but if we did if we dreaded they credit being biased or shading the avon's they take credit at that point but then credits all of this i think it's very damning evidence that's not what he said your honor we have to look at what he said what he said was he in two points st he said the respondent has not responded be has not demonstrated that the timing of the way all of us was based on specific economic conditions as opposed to animist towards the union or look at the timing of the decision this was a one term decision mr hudson has been in the business for ready over forty years he understands cranes understands cream business he understood that these small claim market was declining he knew in advance help me with this piece of evidence i'll be more specific this year what's it mean when he says things like if the union gets off my back i can  hire these people i don't understand that doesn't just destroy the whole case if the explanation for the firings was the crane industry what how is it that he could suddenly rehire them if they got off his back doesn't that show the cause causal connection to his frustration with what the union was making go through but the causal connection your honor is not the issue it's whether he would have taken the same action even in the absence of them getting the same thing  and so mr erickson would have taken the same action and he told in addition to saying some things which were evidence of animists he also told each of the six operators here that he was laying them off because the small korean market was declining because  he couldn't make a profit on it but if he says ok the small crane market is declining and i can't make a profit operating these small cranes at the market is changing and all of that but then he says as  sutton just said but if the union could get off my back i could rehire you that kind of makes me not believe that it's the economics that was causing him to fire him and at the  certainly i mean we just we don't have to actually believe that we just have to think the ael jay could reasonably believe that yes you and there's evidence that mr erickson was frustrated in the l j found that mr erickson was frustrated but again getting back to right line the whole point of bright line is that even if there is that frustration if eriksson's proves that it would have taken that same action despite that frustration it carries its affirmative defense and it's not a violation of the act so we do need to separate the two i understand this isn't how things work in the real world one thing is on one hand and then he turns around and says something else and i understand that that's how things work in the real world but we have to look at this analytically and intellectually in separates the prime official case of evidence o the affirmative business defense and this was a long term decision to sell the small cranes it was the perfect time in two thousand and sixteen to sell the small cranes they all j credited mr eriksson's analysis that he sells cranes when they have been on for ten years or he has operated them for less than ten thousand dollars isn't it true that he didn't actually sell a crane at mr erickson did sell the cranes he did not sell them by the time we had the hearing in this case the board rejected our motion to submit new evidence to show that he had sold the cranes if this were to be remanded in the board considered additional evidence we would submit that all four cranes have been sold at this point that the general council also did not show that there was any work out there for these operators to do which would have cast doubt on mr eriksson's decision but there wasn't because the small crane industry is declining it done the other evidence that they could have used these employees that were fired in other positions sides being a small crane operator so you're one of these were these six the least qualified crane operators that eriksson's employed they were not qualified for any other position with the company when the company did have sporadically work for them to do mr erickson paul the union hiring hall and in fact three of the operators who were laid off were called back and did work for him when there was sporadic work for which they were qualified but in looking at the qualifications of these six operators one was not qualified or certified to operate any crane one was not qualified to operate any crane and then the other four were only qualified to run either the forty or the sixty ton trains and these are some of the smallest cranes that mr erickson own at the time and they are some of the smallest cranes out there so when we're looking at the small crane market deteriorating and a lack of work and small cranes we're talking about forty dollars sixty cents ton cranes there just wasn't work for these operators to do so even if you credit the a in the board's conclusion that mr erickson that there was evidence of animists there are still legitimate reasons for mr erickson to take these actions and he would have done so regardless of what the animists was now this court's opinion in da newspapers is instructive here because in dade newspapers there was evidence that the employer had made the decision to lay off the truck drivers by a certain date and then the employer accelerated that once the union went on strike and the court held that even though the decision was accelerated based on union considerations that the employer should not be punished for what was a purely business decision and here even if we credit the finding of animists and find that the general counsel carried its prime official case the decision accelerated this decision in the summer of two thousand and sixteen because of the union's involvement with some small minor pay disputes under this circuit's holding in the newspapers that was perfectly acceptable and not a violation of the act cases but i'd like to just begin if i could by simply skipping the stone across the lake and just hitting some key points with regards to the board's analysis to demonstrate the board did here and a right line but it always does and should do in here in after finding lawful motivation was established the board then determined that the stated reason proffered for just charging the six was actually a pretext and once  that once protects this established there's no reason to then do any error there ever say erickson wouldn't have fired them but you know but for the crane i mean who did so that's that's what he's really focused on he's saying ok fine there's evidence that would support a finding of animists but where's the finding that he wouldn't fire them anyway so i do need to preface it slightly i am at the wrong largely weaving their arguments in order to make sense of them they seem to be using the word animus rather than pretext and there's quite a large difference so i just want to make sure that well maybe i don't mind if you criticize me criticize me what's wrong with what would be wrong with my asking this question is it appropriate for the day to at some point say ok there's some animists but then there's the declining business i have to ask myself what's the likelihood erickson would have fired them anyway given the decline in business ok so and so what i'm just curious that seems like a fair question in this case you can tell me it's not but it seems like a fair question and did the ala jay ever say well no the only reason the firing happened was animists ok so now the other side has mentioned the difference between a pretext case in a dual mode of case and i think part of the confusion here is pretext is found on one of two bases the st is the asserted reason simply did not exist and nd basis is pretext is found when the surge of reason was simply not relied on in making adverse actions and that's the kind of case thoroughness went ahead and made an alternative finding it so even if this wasn't a pretext case we would still find that the asserted reason wasn't was that the company had not carried its burden to prove its affirmative defense that it would have fired these six employees without the presence of animus so the here the board went double its job and very thoroughly went over both analytical through both analytical models and i think what's fundamental to the company's misunderstanding of the case is because there's two forms of two ways to find a pretext i believe it's taking the reason that was in fact relied on and saying aha so you're saying this little kernel is a little kernel of truth to this i had this long term plan to earth was thinking about long term that i'm going to have to adjust to the market conditions and eventually scale down my use of smaller clients and it's interesting that they rely on a date because date had extremely different facts here that the evidence shows that this was just kind of a plumber in a plan to some time at some point did make some adjustments and at the same time in dayton it was a far different situation where there was a relocation of consolidation to facilities and consolidation of jobs there was a very thorough well developed business plan for this it was presented to the union a year before hand and then as the strikes began to happen the employer at that point said you know we're close to going having a real ok let's go ahead and do it in this court found that and those kinds of situations that that acceleration was fine but here i'm actually quite amazed that in the reply brief when the company was discussing dating it actually says erickson plan to sell the small cranes and lay off the employees at some point but it was pushed to take the action when it did because of union activity this is actually a quote from the reply brief and i think it misconceived not only the vast quantity of direct evidence of analysts we have in this case which seems to overwhelm the normal functions of the operations of the right line but that's exactly that this is exactly what this court the type of case this court had in birch run which is the theory of the general counsel proceeded on which is when you have so your point is that that's an admission of liability but i i wondering i put a question mark exclamation point because if that's at the end of their case what they're arguing that in the fact that they're arguing that the airgas principle that once pretext is found the inquiries that and which i mean they would have had to of required or tried to petition for you know initial i want to not do that principle so solidly in that it in the law that they are parallel trying to avoid that but i also want to say the pretext finding by the board here was know representation of its employees with the cards to wages and with regards to the paper shoes that were coming up and in addition to that it was actually four clusters of evidence there was also the fact that this company had never permanently laid off any employees previously they let people go for weeks or days brought them back when there was a job they kept their keys in their cards they were full time employees but were just brought in this is a construction business they work as a projects appear in here they had never before permanently laid off and here they he permanently them off and then immediately after that within that year twenty six times approached called the union non exclusive hiring hall and requested temporary employees who are then doing the same work that these these employees would have been doing so i don't even understand what they're saying about the board would have to present evidence that there was work that wasn't the st of all that's al so their their burden to present evidence the contrary because it's their burden of proof from the defense so this is a very atypical case for a number of reasons one it's a pretext case and that ends the inquiry the board did additional work went through the regular from defense and said we would have thrown that out anyway we would not have found the three carry the burden despite the fact that we found pretext and i think it's also very important to note that  decision which the board talked to that sort of pent appendix a twenty two it contains everything we basically need to decide this case it has a pretext finding the four bases of it which are summarized  earlier in the decision or the details of those bases but also it notes that the besides the fact the respondent wouldn't have been found to have satisfied that from a defense they make the point that is very similar to what this court found in which is that and i quote the respondent selection to six employees was to not do any particular unit activity on their part as individuals or rather was meant to send a message to the union and should the unit employees to pressure the union to retreat from their activities representing the employees so once again that it's all tied into this scheme which is a typical typically have an employee who you know presents an authorization card and that is good and then is just a plant or something where they do individual activity but here we have a scheme that's the same sort of theory that was in birch run that's what the general counsel procedure on so i just wanted to clarify that for the court case there was any anything in that  honor st bright line does not say that the board or the ale jade can find a pretext on the one hand but in the alternative just in case i'll make this finding as well right line says that cases are either a pretext case or a dual motive case and when we have a dual motive case it's because the income is just across the law we have alternative rulings all the time and i think we tend to appreciate it when agencies are lower courts do that but what the l j in the board did not do here is say that they did not down ericsson's legitimate business defense in the alternative they'll jay said he did not doubt eriksson's would generate business to fit well that's not quite what it said he said i do not doubt eriksson's contentions concerning general business trends in the industry and his long term plans to adopt them but you could think that an economic condition exists but not think that it was the cause of the letting go of these employees industry was to sell the small cranes and use that money to reinvest in the large cranes and this was something that he had planned for quite some time something where he could see the declining hours and small cranes the declining money and small cranes this was less than twenty percent of his business and that it had been just ten years earlier more than fifty percent this was something that had decreased significantly and he saw that the best way the most profitable way to run his company was to sell these small cranes and invest in large point trains which were six sevenths of his revenue in cranes on an annual basis in two thousand and fifteen so this is a decision that he made when we look at what the l j credited he credited that business decision he took offense or he question the timing of the decision but the whole point is getting to the general counsel's argument is that when there is some merit to the affirmative defense this is not a pretext case so the analysis does not stop simply because the ael j and the board found that there was pretext here what the board failed to do was to dig in to ericsson's affirmative defense and instead he simply found he made the made the mistake in the board adopted the mistake of saying defense but what we have here is the ail jay and the board finding that because the employer did not rebut the prime official case it therefore did not carry its affirmative defense and that is not the law th