court's protection and this is another question before the court today is whether the board can do so because not despite but because the targets of the protected activity did not explain why they dismissed board ignored its own president and failed to engage and with respect to the rd the fact that the need did not complete arbitration of one of them to you well the board ignored the argument altogether steelworkers trilogies about the arbitration or statutory claims when it isn't practically about contractual the board accuses anyone who thinks that the arbitrator make confine themselves to the contract of mistrusting arbitrators when the can incorporate a statutory right but it certainly doesn't have  occurred in a particular case for example of a contract permissibly waives a statutory rape then when the contract claim is done no statutory claim or me generally defer will make complete sense but if is that if the contract contractual right in the d c circuit pointed out the board has no business burning to agreements decision that purports to waive a contract statutory right it cannot be me and i want to point out as well that in th the board of the board says it doesn't this case that sometimes contracts with statutory rights were a really important question whether a contract it's i want a particular piece whether the contract  that question is particularly salient and we agree with what you're saying about the tension possible tension between weavers of contract race and where was a statutory right and still i'll hold the waiver i still uphold the resort to to a grievance resolution that did not state its basis they did not say how it was treating the statutory and that's something that this court held was compound two separate issues but at least it meant that the decision that does not say how it treats the statutory claim is not repugnant that the question of whether the statutory issue was considered and are is only relevant to the adequately considered problem now that might sound like the board is adopting the approach that this court took in general warehouse but the problem is that adequate consideration does not require actual considers so if a statutory it's a term of art adequate consideration as defined by its board statutory issue is adequately considered inlets the party opposing deferral can prove the parallel facts were not generally presented so i anything with which to work when trying to meet its burden his burden in this case to prove that the reasoning was repugnant so that's an important distinction between instant and zero and it goes directly to the point to the question  to union membership or activity and the act is broader than that it does support the right of employees to support their union engaging in activities it also protects the right of employees to engage in time and to o well it wasn't an arbitrator gaaner it was a joint carol berkin well before the joint panel we have the arbitration so we we know that he attempted to make the argument but that i read it they will i mean there are many examples law and we also don't know whether their decision was consistent with the for example is union activity include opposing the and because the n r a protects opposing the union gets a contract is not then the statutory issue hasn't been decided and keep in mind that individuals making this decision are those opposed by mr athens activity and that you took the position behind the  also that it did so when no way that adequately protected the rights under the league there is nothing in the opinion and because of the courts as puts the burden on the party and the structure of the test makes deferral most common nearly automatic in this case where it is least warranted in a situation such as the joint canales where no reasoning is given then this court will uphold it but neither this circuit nor the others have upheld the presumption in all that this circuit for example in general warehouse held that it was improper not to have a standard that i mentioned earlier and this court held that that was incorrect and that it was necessary to avoid abdication that the grievance piano or arbitrator have actually considered the several labor law favors prevents arbitration as the means for resolving workplace disputes so for decades the board has maintained a policy of deferring to grievance arbitration decisions when faced with related unfair labor practices th reaffirmed in this case has been the law for thirty years it strikes a balance between twin statutory commands in the board's area of expertise it is reasonable and that's worthy of this court's respect was in opposition to her he was no friend of the union she's elected officials who arguably she's going to say what you need to say to maintain peace with the membership but he has to go before a tribunal that is composed  finding that act and since claims of irregularity were unfounded there were speculation we know that we don't we know that there was perhaps some dispute between fisher and between atkinson that maybe didn't like each other it if she was trying to get rid of them get rid of him she didn't do a very good job of it and same with the panel there's no evidence  and their union representation when the grievance cannot support the majority union and in fact it so in a case forced by this court called to bar is limited and the same thing with the panel there's no evidence of bias from these members several of them or all of them had had help in some fashion we don't know what fashion negotiate the contract that mr atkinson opposed but that was almost two years before the hearing i'd also like to point out specifically that this same panel had heard an earlier grievance from mr acton scene in which they actually downgraded earlier discharge to a suspension so if they had some vendetta against him if they were looking for a way to get rid of him they could have done so already but they didn't and that suggests that mr agassi needs to come forward with some evidence to show that they were biased he hasn't it's his burden of proof so the board did not abuse its discretion in finding that was unfounded speculation and one last point on that for going back to the standard if i may is that the fair and regular standard in some ways and bodies to process principles and mr atkinson was present himself at been hearing he testified a friend and fellow dissident mark her was there who also testified on his behalf so he was not solely within he had the opportunity to make his case himself going back to the standard for a moment and this clearly is the same as the inquiry into whether the the arbitrator adequately considered the statutory issue is a separate prong than the repugnancy prong but that has always been the case it's in that very same put out the board is saying that that the earlier suggested they were separate proms and will continue to do still to be treated that way and this court came to the same conclusion in general warehouse in footnote twelve it's talking about how there are two separate prongs of the analysis so there's nothing  new in this case and what then wasn't there at all and and so the only standard at the board readopted here that it is wrong to suggest that it does not look to whether the board considered for certain whether the it was discussed at the proceedings and in the grievance panel said that provision was not violated and then if you're not looking just at the four corners if you're looking at the proceedings themselves you look at the  testimony and at him since you know activity was a a point of conversation throughout that whole process so we know the issue the statutory issue was presented to the grievance panel and it is reasonable to say that in a issue that is presented to an arbitrator is considered by an arbitrator and that is in line with the statutory policy favoring grievance arbitration it recognizes the frequent  fisher took in representing me including filing a brief and also talks about how there was no evidence in that but a note of a bias that occurred and it's that is not an abuse of discretion for the reasons i discharge if it was upheld by which it was by the grievance was conclusive as to mr ak and since terminations and so there was no even if the june th discharge had been overturned by a grievance panel or by board the october discharge still would have stood and as to the the point about statutory and contractual claims well it's long been discussed by by courts that there is not a stark distinction between those two  and certainly the there has been deferral to grievance grievance arbitration on statutory issues i mean this court's decision and pincus brothers the very beginning in in the early eighty's spoke to the benefits a board of the board to for all standard i'd also point you to the d c circuit on bank decision and am entry but also just as a matter of common sense any time if there was if the policy in favor of grievance arbitration was really limited to only defer to contractual issues because then there would be no board deferral at all and that's clearly contrary to decades of supreme court discord standard cases and also the statutory text itself and there are these courts this court's earlier decisions i would point out all affirmed board decision not to defer so it was not rejecting anything in the board standard the only example is pink it's the only country example it's pink it's brothers w board did not defer and this court said it should have deferred so there's clearly a history of this court supporting the deferral doctrine and i can send quotes to general warehoused in these earlier cases but those of course predated online so it cannot be said that they were in any way commentary on a line and so as a matter of common sense they can't say that this court has ever criticised or rejected all in two other circuits the d c circuit and the th circuit had olin cases adopting a in actual consideration standard what akon since prison proposes here but post above post all in both of those case both of those court subsequently applied as the standard they did not see their earlier decisions as as for closing in forcing a word order is applying only in this question asked in the same should be true in this court as a matter of common sense also as a matter of administrative law s it will take out those cases such as the mobile loyal case we cite in our brief which was about a individual who was discharged for dissident union activity the arbitration affirmed that discharge the board declined to defer and said that that was a repugnant decision and the point with that is that we're not writing on a blank slate only has been the standard for over thirty years we know how it works in practice we know that the board does not automatically defer under the case under that standard if the problem is that acting since suggests would happen under all in we're going to happen we would have seen it already but we haven't all and it's a read the board has returned to the only standard that is an exercise of the discretion in this story to enforce the federal labor laws to strike a balance between statutory commands in the statute the board asked with enforcing it is reasonable and at the end of the day that's what this court needs to determine in order to enforce whether it is a reasonable position doesn't need to decide whether it be of any other position would be impermissible as long as the board standard is same for the last factor is there any dispute about the things given his campaign against the folks who are charged with judging the accuracy of his charges is there any issue about at least the judge the a l j it credibility determination that had been made i ate the center level manager and there is no evidence that that statement was made to anyone other than to robert there's no evidence that it was made to any labor manager much less labor managers from any andy who was the regional labor manager from another city in pennsylvania it was steve bragging on behalf of u p s who was from virginia after the ms that ms fischer all the other members of the panel were also part of this campaign and part of the bargain is fisher was as well with the accent and also ran against her office and it's not merely that he ran against her office she alerted