that it should that citation should be affirmed in the two commissioners the acting chairman all then and commissioner john agree that it should be vacated because there was no substantial evidence supporting the violation we now appeal that decision which in effect affirmed take a moment and this is an odd circumstance where the commission splits to do because normally we defer to the group what do you think this can review is here well i believe the standard overview is still substantial evidence of whether we have a go slowly do we defer to the commission at all well i believe the case all is i mean i don't know the answer that you're ok you didn't find anything because is this different from an unreported a l j opinion we have a l do we give deference to the factual findings do we apply the quarterly erroneous standard what what standard do we we apply to the factual term it is very clear it is my as my colleague put out her proof and i put my proof as well that  the a l j is entitled to deference to her factual findings however those factual findings must be supported by substantial evidence deference or no difference and i believe that the record is very detailed as i could of all the different reasons why i believe there is no substantial evidence in this case for example your honour's if you will of the very first point i would like to make one on my argument is that if the  fifty six point one five zero zero five which is the father to stand there is very requirements that must be proven by the secretary supports such a violation and that is someone was working where there was a danger of falling and three not wearing follow protection use we move our house and move boxes and attach that is a pump that he uses to suck out the the water from from the holes he unloaded that from a truck to another truck came and he unloaded with the handles facing away from the hive are facing towards him about cart raise their breath flat again that is not a violation of the standard there and there would be no fault protection standard if equipment was not to fall hazards up if you follow so it's not a violation for the position but needless to say once those that  up to mr better mr better did show the inspector hey i don't need to wear proper texture because all i did was spin the car around and here's how i did it and the inspector testified at trial that that is exactly that mr becker showed him how he did it without getting any you you know the old you found something's not credible you say don't we don't have to go to the credibility find well that is my and my final point want to appeal your honor is that the credibility finding is unsupported by anything what is it essential to your argument or not the credibility of i really it's a third argument for reason is because i don't think it's the most important argument because when you look yes it is essential that we have to make a reverse of credibility call the rule for you i do not believe that in order to rule on this base in favor of us that you have to make a credibility call however i still believe that credibility is important expression whenever the interest on witness the only witness in the case for him should agree with mr  cannot be done under the mine you have actually a legit actual violation mr swan did not allege a violation he's saying this the positioning of the car could put a person across a two feet from the edge a high wall with their back to the edge not that one was there ever with no without were involved actually the one could theoretically be there or something you have to go use those handle to move that though right that's what they're trying to say to you what they're trying to say and when you lose you'd be up three and a half feet or you although there was still drilled us in them that from from the from the prior drilling there were not there that was not disturbed so there was no fresh footprints inspector never saw anyone working between there and not only that you are but here's here's where i think the the inspectors own testimony when questioned by alle j admits that he's not saying anybody ever would work between the edge of the high wall and where the car angles were in the salt instead he say and that the possibility is there again that's not a violation there's no difference and that then the st louis metropolitan police issuing me a ticket for parking my car and alleging that it were my seat belt the car is there doesn't mean i did not wear my seatbelt the pump is there does not mean that it was moved in such a way it does not mean that said and what my argument is is that the secretary dispensed of the burden of proof in this case because they're assuming future nonviolent that it's to support a violation but i thought they also based upon the logical assumption that if you have a cart with handles you're going to move it with handles and that to get it to where it was located that the employee had to have been within about three feet of a wall if your that that's not how the cart was moved well as a backer said but but i but they they said well ok you're going to use a very clumsy difficult way to move the car but when you have a very simple way with a set of handles we're we're not going to believe becker that he that he used this kind of clumsy push around math that as opposed to just grabbing the handles and and moving but he did use the handles to move it he just spun it instead of getting behind it and pla himself in a danger of falling to the right action of what he testified to in what mr swan admitted that he saw better do later was just to quickly spin around in this or swann admitted in his testimony that when he saw mr becker spin it around by the way that mr becker said he said it evidence and i think when you look at the record of the whole when you look at the testimony of mr becker when you look at the testimony of the secretaries only witness that record as a whole does not support any of the judge's decisions in this case and quickly your honor and that's no good for me but the argument is there is no substantial evidence supporting the judge's decision and off they my last their thank you for acquittal thank you this do we apply to a two to two decision and the l g and these kind of unique facts situation where you got us what decision will the commission has held that as we've mentioned our brief the effect of a split decision is to allow evidence in this case and to hold it there is not would be to say that the judge could not possibly within the bounds of reason have reached the conclusion that she did well address his main point which is what you're talking about is circumstantial evidence of what's going to happen in the future located in a place where it would have put anyone who was moving or using it a couple feet two or three feet away from a seventy five drop and you know want to i think i momentarily in train within six feet of a high wall image and working where there is a danger of falling i don't think there is a distinction per se i think clearly yes the secretary has to prove working where there is a danger of falling i think  like this knows that the way you move it easiest way to move it is to get behind it and move it like it's supposed to be done with the handles it's true that nobody else testified you couldn't move the bus around the right everyone knows you can move the most spending whatever minor does once and for inspector is up there has already identified a hazard and it's going to do the same thing as this miner might have done when you know there is no inspector around you just find it to do something quickly those are very different things because as we explained once you know miners know that not only could they face individual penalties under the miner act that their employers could face and they could be disciplined work and those are all reasons that it would make sense perhaps for for a minor to to try to justify i don't mean to impugn anyone's motives but to explain what he did in a way that might not necessarily have been the way it happened in a city like that i don't think that there's evidence compelling the conclusion th i think that's correct yes because without that credibility finding if you could if you if you if you believe becker then there's no violation right within six feet and then when i get up there i spawn it and that's why the handles are within four feet of the highway i mean that's that's basically his testimony right i think that's right so if you believe that then there's not substantial  as i have a few minutes left but if if there are no further questions then i'll just close by emphasizing that wasn't argument when you boil that when you boil it down is that the judge should have decided things differently should have credited different we'll hear you now