maybe it's one question back from the question you're starting to address in your briefing it's unclear whether you're saying whether you're still embracing the extraordinary circumstances test and saying this constitutes extraordinary circumstances or whether you're making an argument based on this that any time the board's jurisdiction to act is is said to be implicated that there's  circumstances test and say yes we have to meet that but we do or are you making an argument on the basis of this then call it that is there's a free floating jurisdictional basis and we don't have to show extraordinary circuits the focus of that that question has jurisdiction can be raised at any point and point in time certainly we would also argue failing that that if extraordinary circumstances are required that extraordinary circumstances certainly although it could have delegated down to one of the twenty two regional directors but didn't do so here mr sullivan but if the supreme court says that a judicial officer challenge we're not dealing with one particular case we're not dealing with one of many judicial officers are not dealing with the question of application of rules to the facts of a specific case we're talking about something that is the very hear that this is exactly the kind of problem that could have been remedied had it been raised because the statute exams the general counsel of the national labor relations  from the otherwise not ratifying power that the federal of vacancies reform act puts in place for everybody else so you know that there's an implication there i it them to be saying that this shouldn't be a non waiver bowl problem because they've created a circumstance which could have been fixed and they walk right past it they are not permitted to get away with it why don't you well we didn't know you were going to raise it because you didn't say i don't why should we assume that position taken by liggett x is also going to be taken in the in another in another case we rely on the parties that were battling with their positions and you didn't do it so why should your client be permitted to not say something in the context of an administrative proceeding work could have been corrected and have any reason to be allowing you to talk to us right so if we could strip it completely if they strip it almost completely why would we start creating exceptions to that i guess i'm asking you to deal with vista and colony as perhaps suspect because they create an exception that doesn't seem to be in one squirt certainly can look at jurisdiction at any time in the jurisdictional issues and generally speaking are are not waged i don't think that that's the th about overall authority but in the next paragraph in that opinion you know we when you just said that that overall thought he's not at issue right trumps when it when it talks about that it seems to say you know this kind of quote overall authority of the word is not a dish you and it goes   i believe that shakeup that doesn't happen until august twenty eighth almost eight months later after the union petitioning starts so is doesn't that timing lend some credence to the position taken by the administrative ra judge that that by the board in arguing po us that it wasn't the problems back at the end of two speaking specifically that miss shock on the two thousand and nine months and her only offense and the offenses that led to her chair nation which was five months after the union election wasn't the next thing that happened all that we could think is right at the end of the day given our standard of review of substantial evidence when will we read that administrative law judges assessment of the evidence is and the board says we reject those assertions about quality of care because they all appear to have come late in the game of responsibility how are we to deal with that in addressing your reinstate you know don't read state or argue well i think the two different issues because the question of why she unlawfully and ben said for these reasons looking at that record we say it's a put up job to say they're not safe enough to be in a nursing home it's after the fact fabrication to say they're not good enough to be in that nursing home that care home because at that time they put her in positions of responsibility now i do understand us to be looking at that not purely as a regal judgment but as a factual  judgment biting us to look at it by the substantial evidence standard and saying if you look at the record evidence there is evidence that she's perfectly safe because they left her in there and they gave her responsibility and if that's true which the board in circumstances of the other employee said you're obligated to do if you go through progressive discipline you can't go back to that first offense that you didn't fire her work where she actually harm to patients so air brief where questions of safety created by the employees who work performance were braced the the board as i understand it said that they considered the proceedings before the rod discretion in the us so they are saying they've got broad discretion what are you what are you saying and what are you relying on for the standard you're saying we should approach at circumstance for a federal agency that act when the statute says you don't have authority to move forward without signed off by somebody and that somebody doesn't exist so i have two answers in the answer assist at the threshold and so important for the court to understand but if you read through somerset supreme absolutely nowhere where you see in there pretty any argument that this was an extraordinary circumstances you only see an argument that notwithstanding one sixty contrast this case with vista and this is the government actually conceded that there was an extraordinary circumstance and there's a particular reason why you visited what you had was you had a challenge to the board itself we had of someone who was arguing that you where the board is perfectly able to rule on the issue and in fact as your honor pointed out if this had been timely presented to the board the board could have either rule an issue they could have held the case until a properly appointed general counsel that was in office or going to decide to hold the case until there's a properly appointed general counsel or if it's going to hold the case until a general counsel can review everything and ratify it there's going to be the leg and that means that the agency has to gain some sort of policy discretion has to say ok well i want play an expert this is resolution for all the employees involved in this case versus the attendant away that happens when you go through all these extra steps and so if you're going to put someone on notice that it's important that they be put on notice that they face that decision appeals let's just have this ratification now not knock it out and nobody has to worry about this later and that's a policy choice but the board has to meet and it's one that the board is going to make any individual circumstances of the case and what the employer has done in this case  it's the government doesn't think it's extraordinary because now this is unfairly condensing your argument but basically it's just the general counsel stuff the board itself but the this structure of the n discretion about where the government's hand will come down and where it won't so you know the general council does have some unique hours but again i think what people were looking at the extraordinary circumstances exception were not just new vacuum it's a statute about libor and that's a very important senate you because what would make something extraordinary is extraordinary piece of your ability to present it to the board because ultimately that's really what we're talking about here is why didn't you go to the board and give them this argument and if your reason is not a reason why the board would have been perfectly capable of ruling on the argument considering it in due course and acting accordingly acting accordingly then we don't think it's an extraordinary purpose for the distinction makes sense so you have to try to help or hurt well i think it helps on the jurisdictional point and i'd be happy to explain why they think their jurisdiction office is completely wrong and frank haggis part of that and every met with respect to i think to say our argument we are one hundred percent now making the argument that the d c circuit attributed to us were agreeing with their interpretation of notwithstanding so i'm just going give me a everyone agrees would be allowed but if the president put in a two or a three person is the acting official and they're nominated someone else whoever else then the person will be able to stay the acting official subject only to the rather lengthy t don't do that and yours and you're saying yeah but they really meant to say go ahead and let him do that all young men think it's important to look at the exceptions that are built into being one in just take a look at them for a second so who so what think about it in a really interested way anyone is now first assistance and b one is about first assistance and it makes sense there you have this whole the one statute you keep talking about all the things that first the systems have to do that of course the b one provision was written the it was the effort of the nursing home to respond to legitimate concerns expressed by state officials about city in that facility that prompted the stiffer standards and it was  not what happened because really what are we what are we to do we i asked you know very directly i want to ask you what standard do we have to apply when we asked the question maybe this is you know if you wan e it's unsafe to put this nurse back in that facility and the n l r b he's got no better authority or understanding about that than you do and you should let the n l r b walk in and say in their supplemental opinion you know we know the district court held a hearing and we know the district courts of certain things but forget that article three judge we got are in a lot of the authority here you reinstate them that's what i take them to be saying that's the pitch i hear them make this year so what's wrong with that pitch and what we obligated to applaud when we've got a district court judge that also how the hearing at the end i think that there are you know wasn't just going off the you know what you are saying is this nurse who has been documented to have had failures patient safety and comfort and health has to be put back in your facility and you've got to bear the risk associated with it that's what the board is saying and they're saying that's not right that's not fair they should be the ones how us how to bear liability for a nurse we've documented progressive discipline is unsafe if you're saying oh yes we should you can we're telling you to do that not only that we're telling you the article three judge death of walk away from this because we're telling you to do it so i'm trying to get at what's the standard up review now i'm not saying i don't no miss shock i don't know anything about her she might be the greatest nurse in the world i'm just trying to get you to react to their argument and give me the rock what's the standard of review that we need to apply when we're addressing the delicate balance unquote as the supreme court has described board abuses that discretion made its decision on when to be overturned you know as far as the issue of what should the practical squashing should these people have to be put back to work had this argument been made prior to nine hundred eighty and under rather adverse action that even if they didn't gaijin that they if the employer can show that it would've taken the same action even they can but they said that if they had here if they had been able to show that they would have disciplined and discharged these individuals but you know didn't the absence of this union activity beneath that burden they don't have to reinstate them that's the standard of right line so they had the opportunity and they could not meet that burden that was placed on them to show that up something that's fifteen months old to say that she is such a danger but as your honor quickly pointed out and it's a simple fact for the next fifteen months was selected to be seen as seen as a high profile  situation needs to be dealt with and there is evidence in the record as found by the ministry of a judge and from by the board that prior to this your eyes in campaign this type of failure to complete records that treatment records would have resulted in retraining and should have given given the opportunity even at her next shift as unit manager southgate testified to complete those records so here we have a situation where within weeks after the election suddenly that was change no one answered no policy change there was just a leading organizer apparently she said it's an upsetting situation where after that you know the service that your bags these allegations are being raised because of her opinion and birds opinion that she had stepped out and chosen to be one of the leaders of this organiz not to go back but the fact of the matter is that they had the right to make that decision themselves simply because of the toxic environment that was generated by the leaders at somerset at the leaders and never stance to the union organizing campaign  right to say that they will deny reinstatement because they don't want to create a toxic environment where the toxic environment is what they created and so now this at this point it's it's for the interest to go back at some point that this dispute may be over there's another by that because of the difference in the standards so you got a ruling and then you said yeah different standards here ten j but yeah you're saying we're not going to pay attention it's only that it's a different standard it's also that that that that's really what the board are state of affairs does that call into question whether the deference that you ought to get usually maybe you should get in a case like this would it is a fair state of affairs that the board's national cancer sort of temporary injunction there are unit well i mean a strategic decision was made at the time that you know the expert opinion wasn't necessary i believe that the expert testimony that was offered in the ten day proceeding was in response to the experts that were called my summer statement that's exactly what it is and you had to end a board saying no it's not because you made a charge nurse doesn't you know their position is that doesn't alter the record there's there's multiple pieces in the record  record judge weigh in those facts came out one way or the board to no better position to make that assessment than that district court judge i'm just trying to search for a principle of wrong other than your statement that we've got broad discretion to do whatever we think is right that part and you're saying that they didn't need it so what we really come down to is we have an administrative agency asserting forty and saying don't pay attention to that we've got better authority here give us broad discretion and that that's kind of an that's an interesting state of affairs and so i took you when you're the once a kickoff the district court proceeding well again i don't know the district courts determination what is it based on the standard for the district court is not whether or not there would have been destructor discipline in any event it's whether there was a reasonable chance of encode veiling that there was an unfair labor practice and whether it was just improper to restate that in order to ensure that the board could effectuate from here release that it was seeking so it wasn't a determination that was that is  the board's to exercise the board's decision to determine whether they would have otherwise and discharged disciplined or discharged so when i say that that was the board's determination that was their determination it was not the districts that they busted their decision on a different standard and i know that mike and i think somerset's position would be in part you know how long we get dragged along this thing because when we fight on the ground they set up and we they come in and say yeah well that's no good there at some point is there is there are a basis they say don't give a deference you say give us broad deference i'm trying to find a legal principle and i'm also trying to understand is there a fairness standard is is pretty clear that they have to meet on the somerset side of this they have to demonstrate that there would have been a discharge in any event and that short making a pitch that it should impact the way we view reinstatement because their position is they were your witnesses just weren't credible and they o j had the right to make that assessment and that they are so on your assertions about safety as well so can you can you use that phrase there are two separate issues and the board is confusing them either intentionally or where and intentionally  show that we would have made the decision even in the absence of any union organizing that some question is discharging that's rate line and you know that's a different standard there is a line of cases including decisions from this court that when you're talking about the question of green state and that's not the standard that even in the case where the employer has failed to meet its burden or showing would have discharged the employee in any of it i classics was not a reinstatement case your honor i stated that decision for the principle that when you have a question that involves the interaction we're competing plastics decision for the question of the standard review of the an arby's decision in in the cases of all the c individuals shonar there wasn't a dispute that they committed serious and numerous errors of nursing this crowd here for example probably admitted she wanted an institution were acting over the course of years and so that the comments about safety origen well they're just not believable that's a that's a fact fighting right i mean that's a statement from a ok after a full hearing undisputed in the record that each of these individuals needs serious with respect to patient care and it is our position and i believe consistent with h somebody else who did the same thing didn't immediately get terminating here someone else or did something different and didn't get terminated but nobody's disputing that they gave the wrong medications that they failed to transcribe the doctor's not deal with anything relating to a to a three and this person solomon fit under a three and therefore as you use incorrectly decide assistant to the office of such officer sheryl crow for more in the functions two and three say that certain actions may be taken but it doesn't say that they that they shall be taken no matter what the argument challenged in essentially the council and saying well we made a decision that we were going to wait and see how it worked out we knew that issue was out there we knew because of the nature of that issue it was going to be an issue in every proceeding