to the shoe purists instructions  as permission i just i have something of a procedural line of inquiry that i would like to pose to mystery on sure you filed an original brief in this case and the clerk's office indicated to you did it not that you were to refile it with page numbers yes and then you asked for permission to amend  and a judge dr sullivan on behalf of the court indicated no you may not amend the brief description of the way the clerk's office did yes and is there a reason that you notwithstanding the order made some know i'm not suggesting it is i just was concerned that the court had indicated in order what you were to do and you took it on yourself to what go beyond that i think that  that concern that i had so thank you for your responses that's all i have think you any further questioning of judge curious judge call no ok fine we'll turn them to an ounce of the national labor relations  thank you your honor that afternoon please the court barber schieffer the national labor relations board the board is seeking full enforcement of its order that the company has committed numerous violations the act by engaging an anti union campaign after learning that its employees were interested in union representation if violations include threats of store closures track the firing unilateral changes to working conditions without notifying or bargaining with the union disciplining and ultimately discharging to visible union activists and refusing to provide the union with requested information there are we believe there are three straightforward questions for the court to consider the board submit that these questions are easily answered in favor of full enforcement based on well settled principles of law a largely uncontested record evident once the web preserve and unreviewable issues untangled we believe that you will prove that we will have full enforcement the three issues are one the board is entitled to some reinforcement of those parts of its orders remedying several uncontested violations to the board properly found that the company unlawfully disciplined and then discharged two employees for union activity and the board properly exercised its discretion in awarding traditional remedies including reinstatement and back pay and the extraordinary remedy of a notice of a notice reading to address the special remedy rather to address the awful discharges throughout my brief time today i hope to make clear what is what is and what is not properly before the court in an effort to demonstrate what we believe is the narrowness of this case so let's start with the unfair labor practices found by the board that the company does not challenge before the court the company does not contest that it unlawfully threatened employees with stricter enforcement of recruits because of their union support the company does not contest that it unlawfully threatened discharge and plant closure if employees selected union representation the company does not contest that it on lawfully made unilateral changes to the terms and conditions of employment despite the exclusive representatives and the company does not contest that it unlawfully refused to provide the union with requested and relevant information the company taking no issue with any of these violations as we stayed in our brief and stablished by the law of the circuit entitles the board to some reinforcement the company has waived these challenges this is what we believe is the st of the three straightforward issues before the court let's look at the nd issue and again i'd like to state i'd like to start with what is in our view properly before the court the nd issue involves whether substantial evidence supports the board's finding that the company disciplined and discharged two employees from multiple reasons in making this finding the board invoked the well known right line analysis which as the court is aware has several analytical pieces here the company's litigation decisions before the board have the least circumscribe which of those cases can be reviewed by this court as we argue in our brief we maintain that the only pieces of the right line analysis that the court had jurisdiction over are one whether the board finding a pretext is supported by substantial evidence and to whether the board's finding that the company did not show by way of an affirmative defense that it would have discharged smith and to me in any event it likewise supported by substantial evidence in regard to these two findings the company challenges the company's challenges are very very limited and they are necessarily cabined by what it argued to the board recall that the board had before it only the company's a numerated exception it did not have a brief in support of exceptions thereof for the exceptions themselves need to have put the board on notice of any complaint that the company intends to bring now before the court we submit here that the company only generally accepted to these findings as to  legitimate nondiscriminatory reasons and all of the specific arguments it now tries to put before the court are improper we list with regard to pretexts we list the improper argument at pages thirty seven and thirty eight of our brief and with regard to the legitimate nondiscriminatory reason defense we lift the jurisdictionally barred argument on page forty one of our brief i won't go back through those now i'll leave that to what we have submitted so under the board you could turn now to the full right line analysis the issue of motive is not in dispute that means the court is not called on to assess any of the considerations here that led the board to find a mall to motivation including the existence and knowledge of protected activity that demonstrated toward that activity the suspicious timing of the terminations and the absence of a new full and fair investigation point being a motivation is a stablished the court's st consideration then is whether substantial evidence supports the board's finding as to pretext i'll take a moment to highlight the underpinnings of the board's determination with regard to smith who the company claimed to have fired because he was tardy once and work through lunch twice without punching out the board finds this is protection on the basis of for consideration st they credited smith's testimony that no one was disciplined for tardy nd the board relied on the absence of any written store policy against working through lunch rd the board relies on the lack of any written consequence for failing to punch in or out and th the board relies on the utter failure of the company at any point to offer any rationale as to why these three instances were so severe as to warrant immediate terminations with regard to mayo and pretext who was fired a stance of leave for three tardy the board relied on the following the absence of any store policy mandating discharge under these circumstances to today was credited testimony that he was often late to work and allowed to make up the time on the back end with supervisory approval and rd credited testimony that he had never been issued any counselling before which was bolstered by the absence of any written documentation to the contrary the company's preserved arguments the ones presented to the board amount basically to this no we disagree you are wrong that's not enough to show that the finding lacks substantial evidence the pretext finding should not be disturbed with regard then to the final component of right mind the affirmative defense that the company would have acted the same regardless of protected activity the board rejected that claim as quote clearly baseless the company could not show that it treated other employees the same again it's a generalized exception is simply this board you're wrong or jet you're wrong this is insufficient and as we argue in our brief remaining argument such as whether smith and today or last protection of the act or whether the company's alleged financial hardship is relevant none of these are properly before the court because the company did not bring them to the board in the st instance as it must to preserve this court's jurisdiction adding up these pieces the court should affirm the board's ultimate binding finding that the disciplines and discharges were unlawful the final issue the rd and final issue again equally straightforward it's the remedy i'll start again with trying to focus the court on what we believe is the very narrow issue before it at the risk of sounding like a broken record the company's exceptions filed with the board control what the company can bring to the court and what the company presented to the board was simply a generalized challenge to the entire remedy without specifics without argument this is not enough to defeat the board's broad authority and remedy in the unfair labor practice while ation that is the sole question the court needs to consider with regard to remedy that the board properly exercised its broad discretion and remedy in the company's numerous violations of the act it's the sole question regardless of the company's newly minted challenges to the traditional remedy of reinstatement and back pay for the two discharge employee those were not preserved before the board and cannot be brought to the court for the st time i quickly add that the remainder of the remedies that were not challenge before were not even challenge before the court so this is with the exception of what they now try to bring as it relates to the reinstatement of back pay the remainder of those are not are not just jurisdictionally barred but they're also waived as not having been raised thank you yes i have two questions or two lines of question actually counsel just the company we know from the record or we have been told is out of business and i tend to agree with four i do agree with the government's argument but we'll see what my colleagues think that that does not move the relief you're honor as we highlight in the in our brief the board is still entitled to enforcement of its order so at that point what that has a court enforced order it can then move the issue then move into the compliance  this certainly is not the st employer to have to close during the issuance of a decision in order and going into court so this isn't it's not it is nothing new the board's compliance i agree with you what  compliance been consist of i'm just more for my own edification perhaps sure actually so the board has a bifurcated process right we do the liability aspect of it st but that's what we're doing right now and then assuming a court of force order it goes into the compliance phase which happens at the regional level the regional folks then who are designated specifically as i think compliance officers then work with the employer st they reach out to the employer and i believe this is the way that it works they  come up with their own process their own specifications for the back pay what they think what they're anticipating the back pay award should be it reinstatement is not possible and there really are truly no weather stores that these employees can be put back into that's under consideration and so the parties themselves the board the regional office and the employer try to reach an agreement if that doesn't work and hopefully that happens and then they move forward with whatever parts of the remedy can still be affected if there is a closure if that doesn't work the employer it's the the process can start again before the board there can be hearing a compliance hearing before the board if the employer and the regional office can't agree on what that compliance looks like now in and twenty there's a it could be here before the board and even that board order after compliance urine is subject to judicial review so st the parties amicably try to the board of party with which to reach an agreement that's the import of my question i guess i'm not familiar with how the company goes out of business and doesn't exist anymore who do you agree with you meaning the board and the  compliance folks right and i guess that would go that would be some sort of issue i think sorted out in compliance i don't know enough about for instance successor employers if there is and i don't know enough about if there is any sort of transfer assets or a secondary employer that come to them saying i think there are other ways just because green apple this supermarket doesn't exist perhaps anymore has closed i'm not certain that compliance doesn't still try to figure out if there's some entity with a strong enough connection still to be this employer that it can try to do something again that something in compliance but i'm afraid i don't know the specifics on thank you thank you very much the one other very quick question that we really did it wasn't analytically more difficult or legally more challenging but it certainly did cost us time because we didn't realize that several of us in the office working on the brief were working on different versions of the brace because different people download at different times but that's not to say surely i believe that our brief that we submitted because at the time we submitted we had only notified the court by by the clerk's office that we had just then discovered that the two different i had no reason before that to compare to p d f so we notified the clerk as soon as we found out it happen to be very late in the game so to speak just on the eve of us filing our own brief so at the time that we filed we came to the determination we will respond to everything so certainly i don't feel that we were prejudiced in the sense that i didn't have the opportunity to respond but i i'm not sure that it's fair to say that there wasn't any effect on us because there was a lot of confusion as i said when different people downloaded different p d f at different times thank you very much i have no further questions thank you