tucson arizona the industry works like this there's a grid of rail lines all around the united states as you know when a rail car needs to be fixed the owner of the rail car determines where to send that car to be repaired so it might send it to one of green cars twenty or so facilities or it might send it to another company and it depends on things like you know the grid logistics where the car is located cost things like that the we had a hearing send the cars to a specific shop so if the car is in philadelphia they can't sends it to sun except for it so generally cars that are closer to the shops get sent to the shops by the car owner and greenbrier does not own the cars in the tucson shop they're going to history of mounting financial losses in two thousand and eleven and especially in two thousand and twelve in two thousand october two thousand and twelve that shop alone lost two hundred fifty thousand dollars it was this shop profitable as a whole period of time we would see if we would say it was profit that's right and one of the things that happened was when they lost the started melting in compounding really they looked at the shop management looked at the shots that we have to fix this obviously what should we do and one of the things it was decided to do was to try to make the shot like it was before before the losses happened this one of the things that concerns me about this case it's in a i don't much or it's an unusual procedure posture but it comes up in a posture in which the district judge makes findings based on the transcript and based on the transcript i can see how the district judge could find at this that the closure of the plant was protection because there was do should we should we ourselves look at the ruling and say well it doesn't support with the district judge did should we send it back to the district judge to consider with the jury found what should we do well that's an excellent question actual answer i will try here it's a good question because that's exactly our conundrum here isn't our concern here is that we have an l j who listen to twenty days of testimony make credibility determination there's so many facts in this case that you know there's a long factual and roll history as you know but with regard to the closure for instance the the l j i found that it was clear that the decision of the large customer of greenbrier t t s that had eighty two percent of the work in tucson the closure decision or the decision not to send work there precipitated and motivated the closure decision so and that's what the l j found as well so the judge saw the judge's finding that the closure for instance was that that was likely to succeed on the merits of that one could conclude pretext i believe the district court of used its discretion by not having hearing hearing evidence on its own making credibility decisions some of the evidence that was considered and submitted to the additional judge was otherwise in mis evidence like affidavits and so if it was abuse of discretion to consider the evidence without the bigger picture evidentiary standards let me try to do i'm still not sure we focused on a question i'm interested in so let me try slightly different pretext the but however the district judge didn't have it in front of him is there something in our standard of review of this case that allows us to look at what the o j found judge you could issue before we're supposed to predict what of appeals would do had the board granted this relief which it hasn't done yet so i'm trying to figure out how we how how it is that the ruling becomes relevant because i must tell you from my own perspective if all we had was a district  depth than the district court judge you know let's assume that i think the findings are supported by the record tell me tell me how i can use ok because they weren't in front of the district judge well we have what we have here is an injunction and a bargaining order is extraordinary remedies and they require certain elements one of the elements of proof one of them is a likelihood of success on the merits and balance of hardships you know all those things if you look at the ale jay's decision and she goes into much detail about each of those we wouldn't pay any attention to it we tell you to bring it back to the district court so how do we look at the rule and i guess this different rephrase it another way i mean can we say that in evaluating whether the district court  that's that's what i'm used to i think you have to use it now that said and so everyone knows there are exceptions being filed by both sides with  including the including the statements that you put on a witness to explain that that's right the only evidence about the pretend the motivation for the closure was from two sources one the t t s executive who made the decision to stop sending eighty two percent of the work or any work to tucson and number two greenbrier management witnesses who made the decision and they felt they were forced to make the decision because it was not sustainable to operate the tucson well that's not entirely fair is it wasn't there some testimony where somebody said you have only the union to blame for this or words to that no no not regarding the closure the closure came far after the election the election was on july eleventh the closure decision was not made until the end of august early september and this was after the union had been soundly defeated so why would the employer how could be pretextual why would the employer fire in essence close the shop and fire employees who voted forty five to thirteen in its favor  determine where rail cars are sent that that if t t s business goes away that that green bar can still transfer other cars to tucson transfer other workers who sought to be worked on greenberg does not have that ability that was uncon correct and its assessment unlikelihood of success on the merits of the section eighty three violations involving the plant closure i'm sure we can still find it hard question is what significance  what i would say overall is this the judge found that there was no pretext and thus no eighty three finally since i'm sorry the administrative law judge your honor she found that there was no section eighty three violation because the closure was not discriminatory however she entered the same relief that the district court here granted as part of the injunction and so in our view if this court were to decide that remedies there's other violations here in addition to this alleged pretextual closing of the plant absolutely killed the bargaining order well awfully based on those other violations which both the district judge and the what i like to say is that from the boy's point of view or the regional directors point of view in this situation it's disgusting we do not need this court to affirm the district court judge on the sole finding of pretextual plant closure because even if that signing is not included in the district court's findings there is still enough evidence here to support the injunction and the ultimate  so with respect to exempt for example to first national maintenance in that case the court itself said that's a situation where where you have a company going out of business changing the nature of its business there is no bargaining obligation except for effects parking in first national maintenance itself the court pointed out though that in the situation of a relocation of work which is what this was and the work that was done at the tucson plant didn't evaporate the work is still violation failure to bargain over plant closure is the idea that labor cost concessions could have had a factor in the ultimate decision and so here there's no question the labor costs were part of the decision making involving the tucson facility there there is the factor of raising rates and that that was tied to labor fish and sea and tied to labor costs and so where there is a situation in that there could be concessions need labor concessions made in funding to the contrary either by the district judge or the or the jury that to t x made a business decision not to send cars to tucson so fair it was pretax that it was an illegitimate business decision because of the reasons to court rely on then you had the ministry of law judge saying it was a legitimate business decision to close at that point so it wasn't a discriminatory closure however the judge also says though issue which is that the evidence is that this this facility is not profitable absent something new happening at this point attracting customers which is pretty speculative why why isn't this extraordinary remedy a bit too much as opposed to during the time there's willingness times you're actually right ok now do the other way around if there's a back pain order the men if they're entitled to back pay will get the money so why isn't the comparison laws which cannot be recovered by the employer and loss which will be recovered by the employee tend to show the back pay is a sufficient traditional remedy the district court in his order i think addressed your concern your honor by limiting the injunction here to reopening the facility and employing those employees that there was enough work to employ so instead of sit just saying that's reopening bring back on all of your employees when you don't have any work for them the district court took into account the fact that the employer would need to attract business ne ne ne ne time to get customers to come back and said look bring back the amount of employees that you have worked for and bargain with the union should create a preferential hiring less to bring back additional injury to individual employees we have an injury to the collective bargaining thought process in employee statutory rights and those are all things that the district court took into account here and that this court has taken into account in looking at  the bargain is order is solid first in the bargain legal order address those concerns sufficient for the when the board enters a bargaining order or here where we have a bargaining order in place right now under an injunction the board can't grant retroactive relief or whatever the employees may have gained from bargaining had occurred from the time of majority support when the company began its campaign of unfair labor practices and that's something that's been recognized bargain over closure which which seems uncertain this insane clear the district court judge found that there was an obligation to bargain over the closure and the administrative law judge found the same thing it was phase and i was looking at  it had removed the material so it wasn't clear to me about the balance of equities point maybe you could address that sure i believe actually that the administrative law judge looked at that at the size of g r s and as either abused his discretion or didn't abused his discretion by not knowing what the a r j would find several months after he made his ruling so my question is how does this group of free people use that decision will figure out whether help it well i do not think that the judge's credibility findings on that point are enough for this court to say that the district court of used as discretion in finding a likelihood of success on the merits of  i do think that given that the judge's decision was summer based on credibility determination which are the sole province of the judge it would not be wrong for this court to look at that and say ok we now think that there is not a for i would say again overall that he or the district court did not abuse his discretion in entering this injunction both because of the nature and number of violations involved and also because again the irreparable injury to the collective bargaining process in place statutory rights and the board's ultimate remedial authority which are all factors that need to be addressed in looking at whether this re if there are no further question just as an unusual procedural situation the district court's order it seems to me was meant to be a temporary fix a temporary thing it was a call to petition for temporary injunction for instance and it was supposed to be until the n l r b weighed in on this on the actual evidence in the actual hearing we have that now and the r v actually filed the l g s decision in july with this course of the court has i think you should use it well but apparently aren't we supposed to assume that since the n o p diddy on all b would give the same relief here well enough goes to the second quite point i wanted to make and that's that's exactly right there's two things here there's the injunction and the bargaining order with regard to the injunction clearly backpay reinstatement traditional word remedies apply here and can be applied here number two the bargaining order why couldn't a new election be held to determine if employees really want to be represented they've had two elections they twice tonight but they want to have you know be represented by a union why not have an election that's a less a bargaining order and an injunction together the issuance of both of those is very unusual and extraordinary and it's not necessary in this case we have adequate other remedies to fix whatever might have happened i have one i have one other question to you not related to what we asked before the injunction tells you to keep the plate open keeping point people and also not to sell off the assets there's nothing in your brief directed to that last part selling off the assets is that you challenge that part of the house well the idea was what do we do with the shop and selling the s s was not really it was something that was going to happen because the shop was closing what actually happened was truckloads of these brief challenging while we challenge the the whole decision with regard to reopening because there's no basis for ok thank you