totally unrelated to this event yes as for the disparate treatment the board went through hundreds of files of employees they found in some cases that you could she forwarded the email chain to her district manager she deleted the portion of the email chain and would have shown that she knew so that's i would say i could there's a sea of all the other evidence coming the other way i mean graves for example is a manager and he denied that there was an actual hitless per se but what he was sending according to the algerian findings and his testimony as well as credit that statement with respect that you it has to be seen in that context that's not my question my question is i mean and our position interview where it's whether the l j could appropriately question i think where one employee says the other other employees you know well he's he's a go along to get along guy and says that in racist terms but also as someone who is a manager and knows what the managerial people are thinking i'm not sure that those two things the other comparatives there are individuals who did things arguably worse than misstatements within the context of investigations but they also were not fired there were individuals who were in gift card abuse situations and lied during investigation not fired the l t a also relies on those  forthcoming at all at all times for going to destination you must provide any investigator with full accurate timely and truthful information misrepresenting facts or failing to disclose fact or investigation is strictly prohibited you may never i and what's that what's the line finding here on miss kind of i mean she said i didn't i didn't tell her to go home i didn't tell her they charge told her to go home and then it turns out she had texted her that she was talking to h r but nobody nobody actually disavowed the basics of the conversation between the two women that cutting him s conversation the last five or six minutes and it's broken off by positional retore mr bruce's i call you he does no answer she has gone home without permission he tries to reach or again these are a message no response and entire twenty four hours or more goes by before she felt he finally called her again and this time she picks up and has a discussion at that point in time  to human resources and she said i could go home from the company's perspective there was a critically credible person whom they knew was cutting him who was somehow somehow she was described as having given permission ritchie meeting several weeks later ms cunningham says for the first time she noticed two weeks prior to that not having told anybody but happy about it she noticed a set of text messages and in fact it turned out that said that she was in touch with human resources yes there is a thing saying you can go home and obviously the some of the conversation of in the text messages continued they certainly knew that she was with holding information that might allow them to decide whether there was any credence to be given to her story and they concluded for that reason that she should be terminated as  j worse what i'm sorry is the context of a judge who rejected undisputed evidence about who did what based on a privilege document and nobody seems to defend to the idea of his reading that individual down is it connected that's correct or on which case is that i don't have i don't have a case in my head right of what i was supposed to remember all the cases well he's maybe there are you remember the all data case you wrote that one which one  record as a whole that justifies the decision in this case no there's no connection and no it is not substantial evidence record that rebuts all the other stuff that suggests this was exactly what mind right now that during the course of his describing why he was taking it all i can polish it is toward the end of the opinion now for the end of the transfer the overarching principle of of justice suggests he should they should he should take it because it just proves what the compan that there was no connection that that she was never told that h r gave her permission to leave because those statements are sort of not exactly the same place but i would suggest if you read those text messages together you regional person would connect up is kind of him saying she was talking to a shark to speed the matter along and then twenty minutes later it's ok you can leave well i guess actually terry says according to the speed the process and then about twenty minutes later she says don't worry about ryan you can leave i'm sorry someone or for it from that that just that if someone threw the inference from that's the sequence worry about ryan so we're going to indirectly she's telling her that you know it may be reasonable but she knew what she narrates that cunningham told her that h r had approved it is not borne out by the taps that's all i'm saying you know it's up recognize that we're all bound by what the air doesn't we're all that good a difference but in your view what what's the sort of real weight behind what motivates her not to tell the truth  wished it but whatever her motivation was there's no question that the company legitimately concluded that she lied and continue to lie and that is  activity clearly case here no dispute the other was hostility and this is zero evidence of hostility in this case zero and then time and the timing of this case is suggest that the company was not the least bit upset that's fine but that's just one vote and i'm what i'm asking is that either the board or the jury say that she had in reaching the conclusion that  good afternoon your honour's privacy for the national labor relations board to hit on i think three different areas sort of seem to be lot of questions and i will start first with a sort of i guess where the court left off for me the court was at the end of that conversation about whether it's pretext whether she lied not express a fine that she did or did not live but if you read it more often than not words like allegedly lied or used them and she misremembered oh my this is quite important so it might be there might be an  there that is not in any way the basis of the courses of the other boards and no you're absolutely right the boards that start it so that's a that's it with respect to that is a factor that was not a factor in the board's decision right the board finds that the reason she was fired was because of her protected activity not use it as evidence of that the fact that actually she didn't lie at all or was i would have been reasonable to conclude she lied no no not not no that's  makes is that even if she did think it's maybe the second to last even if she did lie it was in the context of a protected conversation and that's not a lawful reason so there's sort of two different findings by the board there the primary one of course would be be when they're on the person who made the statement testify and i would say to some of these three at least four times denied that there was actually a list or that he would be on  denial the grave so grave said there were several parts to greg's attacks that were considered there's a hit list and then there was the other part of the tax that referred to the employer deliberately placing union activists at that known union activists and union personalities i think it's referred to several times at that store so you have him certainly walking back one had heart or at that particular brooklyn location yes at that  right yes certainly we're we're is the part about the fact that they concentrated union members so it could go i'm sorry i don't have much i'll just say the pair of i don't have in the joint appendix but on in general question in general what is the general you list and the next page what did you mean when you packed me as an employee i felt in general there was a hit list by the way  he he was a supervisor right he was he's not a member of the union he's not number one you know me as an employee i felt in general there was it was i myself felt that i would be enjoined in danger i myself had people that i thought a hitlist it don't want to come clean but i tell you what if my manager came to me and said yeah i authorized or you know i don't know anything about these non employees not getting any overtime to the tune of three hundred dollars i might have an issue with that yes but i don't run it you force force if you were a manager serious i think if i was running the company i would regard those other drivers every quarter to look at that kind of analysis of the board can't do that sure and i don't know so the so then we can flip to what they what the are people we did fire and and that came in on the second part of the right line task and if you look at those those aren't even can hurt us either let's remember this younger cunningham has no underlying misconduct she did nothing other than that she was required to do in an investigation all of the other examples in the record everything everything both from the general counsel side of the house and the employers is all the people who live in investigative interviews had and i actually don't think the board or i have a problem with that what we have a problem with is that if you have it was the next step of that where they say we have this policy and if you violate it you could fire flat out and that is where the board takes issue with them know just for treatment as far as his private education right but not too different different different different ones it was different i know there were so many examples of the sort of misconduct going on there was a set that there was looked at to show people do worse tolerate a heck of a lot more than this one woman who couldn't remember telephone conversations and whether she had more text messages or phone calls and then when i'm aware of what's a little more and then we had case and then there was the shifting to the employer to say we would have fired her anyway and in an effort to do that they say we have a policy if you lie in an investigation you get fired and those examples and we have a minute chart from page thirty eight in our brief those examples they argued show we don't tolerate line and then what the l j does some of the board does is says no that compare of an instance doesn't do anything for you because those aren't good examples of comparisons those people have underlying misconduct and then they lie about it in an investigation so those are good comparisons they don't even stop there then the board says even if we take for your word that these are best the l g says is this is a mixed record and preferred sort of an inconsistent record to show that this is in fact not the policy of this employer and so then they go back to you didn't show you didn't rebut the prime of his because you didn't show you would have her you showed that you could have fired her and that's insufficient so certainly there were two sort of different sets of evidence that were being used for different things and then they came in on the pretext findings like that so it's a bit confusing but it certainly wasn't a matter of the general counsel didn't put anything on oh you got turns out i do remember this and and in the meantime she goes around the plant and tells everybody that it was her subordinates fault not her so i think that the so there's that and then you do have a l j saying he doesn't believe what this witness is sa that but i would not dispute that but the but they lied in the interview so if he so certainly you could forgive i suppose if you're the employer that they were acting at the direction of their supervisors but if you're going to take the position that we fire you no matter what if you lie during an investigation they were examples of these gift cards scammers that actually didn't do a lot during the investigation and again there's the demo tape so these are all the examples this is the general counsel's examples there's also the store tablet the man took the tablet to take it on vacation when he was asked about it and even the make and model number on the thing and he said i never heard of that and then they showed me mel that he had recounted to a friend of his that he had lost it and then in that interview immediately he says oh yeah it turns out i did take that money i sold my a temper fourteen ok so that's one from when she tells a story that would lead to her being fired right but let's remember it's not a two completely independent investigation you owe all of what she had said had already happened the interviews there were some of your big one start from scratch i guess is my add that porter didn't have the tax until august trip and all i mean is that you're not starting the investigation a new because you're working on  but they still had all of her interview knowing at that point so you have two different stories they knew that different story right she's still it's a very different story to the extent of what she said is still the same now you just have text messages that differ from her investigation and he compares when employees leave a non unionized store right that certainly if i write off it's the united store which in compass is their story and cunningham that there was a kind of attention to all of these people are implicated in the union right right as ashtrays a member coming home as a leader so the way they object puts it at least is that employees assigned to stores other than you has brooklyn brooklyn locations simply received written warning quick decision to leave work without authorization decision may within a few weeks receive a written warning for leaving early multiple times forty two times late and and then the next paragraph gives examples of how nonunion shops employees leaving early have been treated that i enjoy working with the person she's very professional necessarily contradict any finding of anti union elements you can think that the person is in a role that you are poor you'd rather not have to do that work at all and think that the person who is nonetheless engaging with you in that work is doing it in a professional and you know fair manner so it so i think that's i mean it's sort of like misunderstandings people have about sex discrimination someone can be very nice to you to be useful that is inconsistent with the idea that he participated in a discharge months later because she because of his coming in to aid to mr actually that night i think it's the baseline the burden of proof is on the general counsel because we assume and people testify in every discrimination case whether the plaintiff wins or not that they didn't mean any harm i mean that i just i don't see that as a flaw the burden is put on the general counsel only thing of the three things you identified was the company's knowledge of this cunningham's protected activity and every witness who testified said that's pretty good thank you very much