inquiry into the employer's true motivation or an attempt to weigh the illegal motivation against the law for one to see which one is more compelling as a board in the right mind set it doesn't matter of the unlawful motivation was  we don't dispute that that was likely when the decision was made we do argue that evidence of statements made beyond that are relevant to not disclosing the move to the treatment facility not not telling the union or employees about the fact that there be a facility there that they could apply to not facilitating their transfers to the clinton this to the union and not facilitating employees in our case we are arguing that that is that is evidence that helps shine a light on the company's thinking in closing the middle  activity on the last wind the board some skepticism or the idea that it was impossible that the company would have made twenty million dollars that's meant to rid itself of the union that's in this place analysis of the nd step  there enough to sort of put it over the finish line to get to that decision made so are you making are you making legal argument that they didn't analyze it by applying that  company wanted it they modernized facility and that they desired to increase profit within it is likely your best point on the record to support your theory that it was the anti union motivation that put learned while being there so i think that those are examples of the type of evidence that's in the record that makes it difficult or it makes it possible for the board that this isn't tangled the waffle motivation from past the initial general counsel's burden to show that unlawful motivation is present and then it moves to the nd stage to show that it's a team player at that point to demonstrate that it would have taken the same action in the absence of union activity and again i think the questions of opposing counsel in the court have shed a lot of light on the fact that this really does boil down to a difference of opinion on how the board chose to view the facts in this case and if that's what it comes down to the law is clear that the board is entitle to the problems with relying on that evidence looking at it the way that the board looked at it for instance where the was appearing in the slide presentation the bullet point pertaining to the union being having a two hundred and forty seven restriction in the contract that was a excuse me the limitations in the remedy part of that power point where they say this is what the new facility is going to fix it's one of twenty nine dollars bullet points so yes i mean your friend pointed out there was a upfront finding they were it was part of their decision making calculus and so with the board was supposed to do was say well was it a tipping point i mean it could have been primarily hostile but you have a mixed record in this case and so really it was was this a tipping point where they have made the same decision if you back that out but the board's analysis is really really short you know it says there's no dispute that they have these other reasons whether it was what put things over the top that's why i don't see in the analysis right something case articulated to us wrongly in their implausibility line right and so i think we so there's the that's one of the factors they looked at right that there was a three different reasons that they credited the employers affirmative defense the st one was the modernized facility and i don't think there's any dispute about what the limitations were physically on this planet and how the new facility corrected that and then there was the nd issue the nd factor that were looked at which was the profitability and then rd it was profitability was all post hoc evidence right they said and look at work out they made a lot of money i don't see how that tells us anything i thought there was also and i may be  sremembering the decision in order i thought that there was something additional about in the capital expenditure requests both of them there was a projected savings on the part of the company if the move was happening so i thought the profitability things doubling groceries went up and i was just curious as to why normally when we're looking at decisions we look at information of the time of the decision and i wasn't understanding why it mattered station your position will be the same even if they probabilities just the saying it's not working for us to pay they were right there making lots of money which seems to me in a relevant consideration and three the any union there was no one would make this decision because just because of a desire to get away from a union which is the wrong legal task and i think what the board is doing on that last part though is a value weighting looking at the strength of your employer's position of valuating whether the employer was able to show that it would have decision in the absence of i'm not saying whether this record would have allowed the board to do that i'm just not sure you can you know maybe think they should have the right decision but we can't do that after the fact i don't think this is a question about whether the stuff they're on the record is just of the poor make it's fine you know and really all we have is those implausibility we have this sure it's undisputed there were huge problems they couldn't expand and they had hopes to its expansion was going to make them more decision to relieve itself of union grievances or otherwise never mind the union that doesn't grapple with sure they wouldn't they would make a big decision like that soley based on unanimous rep we all agree that's not the test is whether back on the modernized facility i think the board does i think evaluated that evidence very thoroughly in terms of what couldn't couldn't be done at this facility and then so i guess i mean i understand and i don't mean i'm not trying to be  understand what you're trying to say in terms of what that last statement is coming to do with the impossibility of doing that but i suppose the way that i read that in the board's decision was more evaluating the totality of what happened here what the restrictions were the very limited points in time where the union was mentioned during the communications what the profit anticipation was and that's all in the record the board understood that and then in that context saying this record this information we don't thing in order to relieve itself of the union right that's is another reason to get away from it would make this decision to get away from the union that's a wrong pass that requires of a fifty one percent union in the union guess i should tell us a should have perhaps led them to sort of going down this line of pushing i don't read the employer's opening of the union's opening brief to make this argument it certainly isn't the reply because when i was it's only in the replies so i think we also would contest whether this is a sufficiently who served and presented argument to the court i don't read their opening brief to have it which is why when i was reviewing in our brief i didn't see a written response to the out to the claim that the board's reasoning was faulty for having been properly inserted as a st prong analysis into the nd problem so i should have presser with them that certainly doesn't cut off our conversation about this but again i think i just have to fight i think you just have to fall back on the board decision order where they talk about muck and then where the if the modernized facility issue it's the profitability and then on the record as a whole that they get this employer just did not respected that the union this employer was not going to keep that middlesborough facility open and i the shows that were taken the same action in the absence of union animists and basically we believe that the evidence compelling evidence shows that the company would have taken the same action the union has conceded basically that the company's reasons and financial justifications were valid there's no pretext here the key is when the companies have closed the middlesborough plant even in the absence of union activity in the secret from workers doing absolutely nothing to facilitate their ability to get jobs at the clinton do you know other than the two were secretly moved to the clinton their people move to a new location so i'm trying to figure out how to factor in that so it seems like it's not just the place was crumbling but once we decided the open one we wanted we did not want the union workers from here to go to clinton well i think the record shows that the company expected the union to raise the issue transfers during the facts are going and that in fact the company notified the union three times before the close of the fax targeting  dollars it announced the closing to the employees and the union president was was present at the time and it was indicated that the manufacturing would be in fact transferred to clinton again during a public announcement in october and again in response to the union's letter requesting decision bargaining the company's lawyer indicated well the manufacturing would be in fact transferred from little girl to clinton and despite those notices the union never raised the question of transferring the jail day findings of out you know all this stuff that was happening afterwards and the secrecy in the family do anything to facilitate employees or you got to drive yourself there and apply all doesn't deal with anything other than sort of the physical structure of the economic projections and why isn't that important now it's not that it couldn't grapple with it but why isn't that important evidence  of if you if in a hypothetical case that this way you had strong evidence that you had the exact same record as to profitability in crumbling building and it was clear that we know union employees at the clinton plant and surely the board would have  certainly relevant to understanding what motivated this in the st place just as you all want to say the profitability helps me after the fact i understand what they might want to close in september and then surely preventing union that's unusual isn't it well it's up that the reason for the confidentiality agreement was that the announcement hadn't been made to anybody the public included for the reasons stated that they didn't the company did not want to upset that right thank you thank you