disappeared and it was going to be costing it costs more to process the chips and to ship them to a customer than the customers were willing to bob's substantial pile of these chips i'll bring up his location which also created a problem and they are tired it's coming in constantly daily day after day they have to do something with to find someplace to put them and if they're not chips  t do something else with them but absent that point a determined to change the nature of his business to change the direction of his ready business by creating a new product and finding a market for it with regard to treating those tires so that he could process those tires get him off of the yard and continue to be somewhat profitable ready it's a business he has an economic difficulties during during that period of time and again the chip market that this appeared not a weighty standard overview and the board certainly had plenty of evidence ail j and the board had plenty of evidence but their conclusion there was no change in direction as was worked done by bargaining unit employees no different than what employers frequently do when they see one piece of the operation going up or down they may make adjustments and that's essentially the finding of the board i honestly i'll tell you my view of the record is i don't know how i could find under a substantial evidence to us that that's wrong and we're on our standard of review i'm not doing what they all j it we're not here to try the case you're not here to give testimony we're looking to boxers acquire new equipment to take on this new venture and another new market for it and creating a new product we've got all this does under the board's precedence and under the precedents of the supreme court does the board have to find that there was a substitution or replacement of existing workers before finding that sub contracting is the acme case that substitution and replacement was not a requirement to find a mile ation here we would argue that there was no substitution or replacement there was no loss of job unit employees so we would and i don't know this court has ever reviewed the acme decision or similar decision certainly the st circuit has and it's a helmet and again that goes that most all of the work done by the subcontractor was work that was also done by unit  employees isn't that necessarily a finding that there substituting a subcontractor for union employees because if the issue was capacity  and there weren't enough unit employees to get all the work done then what you can do is just hire more unit employees right that's correct in and out of the board think found that there was substantial overlap in terms of work and some of the work that was done by nasa employees here that included some work that was previously done by i b j it's the other temp agency that provided an employee it's there was some overlap of that work but again none of those employees from d j s that were there lost anything as a result of that that changed and the testimony of the record indicates that there was an inability for b j to supply any additional recovered i mean not some out and not before us sooner snackman is right and we have never rejected acme suman acme was right that's really the kind of the end of the inquiry you don't have to show replacement i mean we don't credit that kind of an argument in many realms and all that is that you have to follow the proceedings and there may be some cost and inconvenience in going through it i mean the question is whether or not you violated the law and how the next  and possible protection for you is a compliance proceeding that's kind of a strange argument to say but that will cost the time and money to go through the compliance proceeding and it's actually going into my rebuttal time i would like  smile but it is perfectly and consists the which one do you want to go with because it completely inconsistent arguments you want to go with your primary argument or would you rather we go with the perfectly inconsistent alternative  finding that there is no fundamental change in the nature of the company's business when its contracted to masses to the contrary there is ample evidence supporting the board's finding that there is significant overlap in the work basically remain the same looting and unloading tires running the tires through some machines the company points to the so called new business that i was involved with yet the record shows that out of one hundred and aladdin massive contract employees only four of them exclusively perform that work and it's an undisputed finding by the board secondly with respect to the question that was asked about whether or not there needs to be any adverse impact st from a factual standpoint do want to emphasize that the board did find that there is only some evidence of some layoffs and also it did specifically find that it's very possible that there could have been increased opportunities for overtime putting aside for factual standpoint from a legal standpoint there are that are going to be unlawful and that principle applies very well here and particularly where this was a new union that had only been sort of five for approximately one month when the contracting  to cases though i know there are a number of cases suggesting that you don't need to have a substitution or replacement but it seems that in fact most of the boards cases do involve substitution or replacement when they find that sub contracting must be a mandatory subject of bargain it's got your name there are many cases where that might be the case but there are so many cases where it isn't and you never direct the court to page twenty two of the boards free for the board cites at least three or four into the unit in fact the company's even acknowledged it could have hired employees into the unit but it simply didn't want to while that's not an excuse not to least bargain with the union and see where things might go so i don't so i would maybe expand a little bit on what same work seems to me because even in that even though the case that you just mentioned i think same work often means doing the identical work you know you're you're hiring subcontractors to do the same so in this case at least arguably it's a similar type of work but it's you know bob's tires has arguably expanded the amount of work it's doing right they'd have a new contract they've saved you know they've bought new machinery so it's not having workers you know hiring new workers to do the existing work but to do new work so is that is that a distinction with some of the other cases by the board can you cite a case that has similar to determine that a change in customers or an addition of some equipment is not a substantial change in the nature of the business but again even if this court were to disagree with that well reasoned board interpretation at alice i can't overemphasize that out of the one hundred and eleven sub contract employees and that disputed before this court that only four of them exclusively performed this new work the rest of them one hundred and seven are doing the exact same work as the company's employees loading and unloading tires you never other work might have been required around the yard so so they are doing the identical work regardless of again even if th court should consider the cutting of truck tires different than the cutting of car tires because i believe one of the new machines involved getting a truck tires which might have a new but still cutting tire so the board would argue in the st place it is the same work and even if it even this hard to disagree the vast majority of almost all of the some contractor employees are still performing the exact same work and implicit in their argument or you're not doubting some loss of jobs and possibly for overtime but in a compliance proceeding and it's completely speculative at this point the more general counsel would determine whether there is any actual loss of income or work by consistent with his past history as the record reflects which is typically used temporary employee agencies to supply workers the record shows that b j is was not able to supply any additional workers so he went to a different temp temp agency to get those additional workers get those and be part of the b b alternative argument with regard to be one hundred and eleven dollars employees that was over the total of the entire time that the masses contract was in place i think the record reflects that in any particular point in time there are basically eighteen to twenty employees that were working at the same time so when you say that only four out of one hundred and eleven it was four people doing that job but it could have been four different people out