occasion of law to settle facts if this court the reviewing court here is left with a definite and firm conviction that a mistake has been made then the decision of the board should be reversed i submit to you that the majority decision is in clear error and that's the side of the board member mr anderson is in fact the correct answer the dissent has set forth on five different basis the majority decision first is based solely on the statement of the one witness mr martinez who said he would not hire rehired miss michener if she because she filed the fourteen grievances second point in the dissent was the statements were made during a settlement conference or at least a discussion of grievances that might lead to settlement third mr rushton has and was not involved in the decision to discharge initially which she's course was not for on all agree in this case there's no dispute that nurses would like to add that there's no evidence in the record that nurses missioner and joseph ever agreed to sign any consent forms but now they've been ordered right the board in their wisdom said that after three years and eight months of further evidence that cook county had a legitimate reason not to rehire and that there were met along with be a legitimate reason not based on anything to do with with anim be decided for to apply that case says was over trying the next her distinguish the next year and river appropriate says the city of highland park which is one eighty four only second to ninety thousand nine hundred ninety eight which is i believe it's in a binding award which was the basis for the counting at three higher in that the record is clear based on that information and also on the dissent and conclusion to reverse the decision of the o i think to first start with the preclusion issue i'm not familiar with the case that he's citing to i don't believe it was addressed in the reply brief i certainly if the court is concerned about this issue i can submit supplemental authority after the argument  it's not clear from his presentation whether he is referring to race through the cut or collateral stapel but in any event neither applies because the relevant factual issue for the claim that is now before the court it concerns the statements at the grievance meeting and in may two thousand and nine i betrayed or only considered whether or not the september two thousand and eight discharge was for just cause so the issue about the settlement of the grievance the issue about the possible reinstatement of the employees that entire factual and legal issue was never presented to the arbitrator so you see then that the opera creation creator is holding it was for just cause if you do if we're rosen subornation was correct you just have a different ground to try and see the leader of the it's all your technique it's a decision that three hire somebody right exactly we agreed that that fact or that conclusion is binding we disagree as to the legal effect on the subsequent cl the subsequent claim it's possible to reinstate someone who has been discharged for just cause and in this in this particular case martina's in an effort to settle the grievance that was pending offer to reinstate beverl is that and mediately after mary martinez made the statement one of the union representatives asked him to clarify i think even he repeated it and he repeated it and then the discussion moved on to another grievance so it's not as if there was some subsequent decision separate claim it's an unfair labor practice by a refusal a discriminatory refusal to reinstate want to employ and so it's a different claim and therefore under the give me for my menu form even lists and unfair labor practices couple important considerations there first of all the boards ordered as i believe it was mentioned during the up on star command is contingent upon them not only submitting to but also passing the background check so this and that show how important that was raised by the administrative law judge was that because of the nature of the cook county health and hospital system even if you were to reinstate these employees there's no requirement that they would have to be detailed to the g t c within  only issue that's before the court now the burden held that the employees were discharged for cause and found that there was no unfair labor practice with the discharge because the what you're describing is not protected activity the principle of gr work now later means that you can't simply refused to issue an order but that has no bearing on the subsequent claim which is you can't discriminatorily offer to settle a grievance or reinstate an employee on the basis of protected activity and it's clear that grievance filing is protected activity but again just never did joseph follow grievances was that a problem of the fourteen grievances that michener filed seven  do it within a day thirty days another year on or on me government may well be not more be the typical procedure with remedial orders is that if the if the in whoever is the prevailing party before the board if they believe that the remedial order is not being complied with then they can bring a proceeding in the board to enforce the remedial order so the way i would imagine it would happen here is if the employees say the employees refuse or delay in  signing the background checks but they say and county refuses to reinstate them the employees would then have to file a petition to enforce the board's remedial order and then i assume that cook county would raise the defense actual content of the background check but i believe that the nurses counsel would be more capable to listen answer that there is one last thing that i would like to address on the preclusion issue and that is that there was an argument made in the reply statutory provision was cited for the first time the reply brief i'd just like a short opportunity to reply and there's really two short comings of what this argument the first is that the illinois public labor relations act does not have a comparable provisions so whatever the statutory requirement or limitation in the federal act that isn't happening or paraded into the on the law in the second limitation is that there's a nine hundred eighty three us supreme court case called transportation management and interprets this provision which is section ten c of the federal act and it says that tennessee doesn't apply to mixed motive cases so it doesn't apply to a case where the employer might have a legitimate reason but also in  court reason in transportation management that what this provision is really about is sort of your discharge for cause or you're not it didn't really contemplate the idea that you could be discharged for a legitimate and an illegitimate reason by actually because the idea of mixed motives didn't come about until much you know later after this provision was an act so there's even if we were to assume that federal law were controlling here there's a u s supreme court case that says that under the you know the scenario posture here where you that her method of proof didn't exist at the time the ten c was adopted and therefore it's sort of contemplated a black or white it didn't apply to the scenario where you had this affirmative defense that an employer could raise questions i reminded him this ability that that we're not bound by the federal rules of evidence and also that one even under the federal rules of evidence because the unfair labor practice is a separate claim there's the you form a case and other federal exclude it i mean i guess the back the presumption is that the evidence is admissible if it's probative and that it might be subject to some exclusion of that reminds me justice quinn had asked a question about privilege and this i promise will be my last point you know because the statement is made and the context of the settlement discussion now listening sitting and listening at and reading the briefs and i tried the case i tried the arbitration case so it's in my office tried court case and i'm intimately familiar with the this litigation we have here today is an issue about a discrete at discrete unfair labor practice charge and that is whether or not decided by the arbitrator in a contractual a it was a contractual dispute different parties different issues the arbitrator specifically stated that he was not deciding good let me explain how that happened your honor ok leslie missioner and beverly joseph the two charging parties filed their own unfair labor practice charges as they have the right under the statute to do see michener filed them on behalf of herself family joseph and other nurses bradley joseph filed similar if not identical because these were unfair labor practice charges filed by these two nurses i'm their own and their own behalf and for on behalf of others as well one when the one for late many unfair labor that i don't know what in order that it is they found a lot but in any event this is the only issue here is the reinstatement issue and the evidence is  in order to get an order to get your settlement through that's you know and you ok and that's where the board properly allowed the statement and in terms person because they're african american or they're disabled i don't need anymore i don't need anything more in this case that i'm not reinstating beverly chose wesley mission or because she gave order that the sheet they're allowed to return to work if they obey the order of their order is opposed to the order of the federal administrator to let you to assume it to criminal history checks doesn't that support the notion that they had told me that they had to cooperate and submit to a criminal history that's not their issue is not again the the fact that they didn't  correctional institution they were not going to give it to them what possible principle was it based on well this isn't really part of this again this appeal and i wasn't sure i knew the r as union steward she said we are not refusing flat out in fact when they signed we saw that we basically some are not refusing she as a union steward she probably you know she made some bad decisions she may have got some bad advice i don't know but she was doing it us for the principle that it was a unilateral implementation of a new working condition that had not been negotiated and bargained with the union you know if they told her that you have to test or new kind of a background check that they arrested michener's a steward believe that should have been discussed first with the union and it wasn't they just you know readily implemented whether the t a a have the authority to do it or wesley mission or didn't know but she found grievances and when they refused to meet with her she found chargers and that got the ball rolling that got the ball rolling and everybody got the back up and that's why we're here now between the cia the nurses union and the county has a multi step process and this was a grievance settlement meeting where they say they have done their docket for that day the the h r  so it's on page three and it's at the bottom and regina alice was the nurse who testified the purpose of this meeting was to discuss pretty arbitration cases with the county and attempt to come to some settlements