because the board departed from its own president or unable to consider important evidence fail to make findings on critical issues then at a minimum w on your line in one nine hundred ninety six or i recognize that the delay has been that i mean that the employer is not responsible for the delay there has been  critical issues so that this case can be properly adjudicated i'd like to first turn to an issue which we submit is a fatal defect and that is that the the record in this case does not show that the general counsel even sustained his burden of persuasion on his prime aphasia case the only evidence and the board's case rises or used or the recall means you valuations could be used to not rehire some union support that's the fundamental foundation the real upon which the board case rests now generally in any three district case of this nature the board has the burden of proving that the decisions to to in this case not recall were a result of intentional conduct animated by into union sentiments on the part of the employer the only proof is not there now the second area where there is a fatal defect and it really is related to the first one in some respects as it goes to the issue of taking out the right wine elements that the general counsel had to prove is that there was never any individual evaluation of the competency of the employees who weren't recall or the board especially found that there was nothing improper about the layoff that the decision  modernize the employer's facilities was not in any way intimated or or connected with union must and that the employer's decision to make competency evaluations was legitimate and we've discussed that evidence in our grief there were problems with competitiveness problems with employee is not hindering the fruit properly with resulting loss to the company so the second the fact is that there was never an individual evaluation of competency at the determinations of competency and the reason that's importan douglas versus green with the burden of persuasion and the employer's legitimate business reasons and the underlying facts i e your valuation of the competency of these employees was never considered by the board and that would have been simply in the general counsel's prime official case perfecter that had to be considered and it was simply ripped from the context and never never considered by the court the third is you it is and it really goes to the employer's right mind defense that it had a legitimate business reason for the decision which  did was let over the requirement of right line that the employer be permitted to show that in essence what the board stated is well we find that so doing it simply stated well having found that the line of seven was a pretext then we don't even have to go into and evaluate the evidence that the employer put forth showing a lack protect partly was not unlawful but that the employer's decision to not recall fifteen of the very first employee is on that line didn't violate the the use of the information derived from the evaluation process not the evaluation process itself as i understand the board's decision but the use i e the adoption of a cut off administrative proceeding it differs from an ordinary appeal from a civil judgment the decision of the board must rise or fall on the reasons that it articulated not on the reasons that might be advanced by the board's coun or on reasons on the basis of reasons that the court might decide to infer or extrapolated from that record embedded within the issue of substantial evidence or are serious problems with the board's decision making in this case and that goes to its crediting of the testimony of witnesses to terrorists who ultimately according to the board without her testimony the case scales and let me rest it's here is his testimony in three areas because i think they demonstrate the problem with the words adjudication in this case six the board's theory of credibility as to why and it really your honor i don't believe that the court this court cannot substitute its judgment but or that the board failed to comply with its own prompt president's policies or standards can remain the case back to the board to explain what ible that she would have been at this meeting and because she was a supervisor and the evidence we believe is quite compelling as noted  which the board's determination of credibility rests is simply called out and their entire theory of why her testimony should be credited is invalid secondly the board well first of all the issue was never addressed by the board even though it was raised in the employer's exceptions but moreover the board precedent which has dealt with this issue in numerous cases credited because her demeanor believe that as to the first two points one that the only evidence was of a quote free floating animists and that is insufficient as a matter of law one point to the failure of the board to consider the legitimate evaluation as to the competency of the employees and the board's analysis which in essence did leapfrog over the requirements of writing one and just this course have to have an i referred to the general counsel's argument that the process was flawed and then he goes on the state but referred to these as you refer to these as quote minor inconsistency isn't testimony in gaps or puzzling