attorney for champion holmes there are a lot of issues in this case and i try to focus on the narrowest issues that will get us most directly to the conclusion on the question of jurisdiction very issue is our contention that the union cannot petition this court for review because it never raised any issue it's trying to raise in this court before the national labor relations currently the union was happy with the administrative law judges decision the court could have filed exceptions but it did not at the end of our b level if the union was not happy with the way the board changed the ael jay's decision it could have filed a petition for reconsideration with the board but it never did and that result is controlled by the supreme court's decision and will be versus remeron versus al are be where the court wrote and i quote however the court of appeals was without jurisdiction to consider that question the issue was not raised during the proceedings before the board thus judicial review is barred by section ten of the act which provides that no objection that has not been urged before the court shall be considered before the board shall be considered by the court the state court injunction they are the reverse the a l j so if there was anything that is going to permit the union to file a petition for review it has to have something to do with the board's reversal of the a l j on the state court injunction issue and while the union has argued that there were there are some things that agree that and we union was obligated to file a petition for reconsideration indeed the next quote i was going to give you from the supreme court's decision and will be is this wilkie could have objected to the board's decision in a that the unions should have found a motion for reconsideration to preserve the issue direct because section ten he of the national labor relations board says that no issue may be presented to the co appeal if it had not been presented to the board and the wilkie case says ok if the board does something that a party hadn't anticipated so the party had no opportunity to file exceptions to the ale j s decision that's ok but nevertheless if the board does something that a party had not anticipated at the board level that party feels aggrieved by it that party must follow a motion for reconsideration with the board or it loses the on the right to bring the stewart that fifty to sixty employees agreed with the letter he posted evidence that readers said fifty to sixty employees felt the same way was not evidence that still work to whom he was speaking no  fifty to sixty employees felt the same way stewart testified he didn't believe this he said he'd been told by several employees he'd been told of several employees had complained about the letter and thought it and he and he st thought it was tearing down the employees stewart's testimony was unconscious or dictated either by direct or circumstantial evidence now i understand that element of a violation may seem troublesome because it is subjective but that's the standard that the board articulated in myers industries the board said quote once the activity is found to be concerted and a one violation will be found if in addition they employ are knew of the concerted nature  here the board did not change the standard no one asked it to be near the general council nor the union and no one has come into this court and argued that the standard is wrong any party would first have to present argument to the board let me go quickly to one other separate ground why the decision should not be enforced on the merits that goes to the question of whether the dis motivated by the letter the l r b to not even address that issue did not address that issue in its review with the l j found that the discharge was motivated by the posting of the letter there is no basis in the record to conclude that they had been written in contemplation of litigation indeed the record shows that they were response of to a question that some higher management had asked about whether there had been any any contending that it had terminated reavis for terminating other employees but the l j refused to consider that evidence because he said champion was contending that the intimidation was posting a letter that particularly galls me because i presented the case and i did not contend that posting the letter constituted intimidation i contended that a host of other t constant intimidation but it wasn't posting a letter and if the a l j says that's our contention and then looks at the evidence to determine whether that contention is valid or not he's he's not looking at the evidence to determine whether our true contention is or is not supported by the evidence and then the third point is the l g a found that the injunction papers did not allege threats of bodily injury when they did it and this court can in connection with the discharge in connection with the motivation issue yeah i think the fundamental injustice is that one of the required elements of an eighty five violation that  about conversation about all his complaints he had been terminated but the supervisor was reviewing it and he was going over all of  it and in the course of that conversation he leaned over any looked mr reavis in the eye and said you better be careful this is the most important decision you're ever going to make in your life and mr st mind you we don't have to convince the boarder or anybody that that's the basis on which he was terminated all we have to do is convince them that he was not terminated for protected activity cited in our brief has held that where any party raises the issue before the board then any party made the titian for review and challenge that in a court in the court those cases opportunity to consider them first of all the the employer raised objections filed an appeal secondly the general counsel filed a brief in support of its position  the discerned address the issues and fourthly the board to trust the issues so if you take a look at local five twelve service employees local three ninety nine and gardner mechanical all of them express point out that where the issue is in fact addressed by the board under any of those circumstances any party that's a language which you find in local three nine nine may petition for review so there is no this denied it at first mr scott said workers told him you did it and handed him his paycheck now there's no way that whatever else happened could have been the motivating factor for the discharge if mr scott had the paycheck ready to hand him because he was upset because mr reavis was posting this notice which was considered activity i want to ask the remedy issue because it's a it's a very important remedial  and it's complicated but in some sense simple harassing threatening doing anything else we don't care about that our position is that the injunction to the extent to prevent him from working and preventing him from communicating with the workers is preempt question the court said curley meaning an earlier supreme court case made it clear they want a state proceeding or regulation is claimed to be preempted by the n r a undergarment com course being the most that language in the injunction about coming to work was preempted because it interfered with the board processes it's a jurisdictional question that's what i always stands for and that's  unquestioned principle in this case and since then the second point also so what does that mean when you say it's a jewish dictionary question what are you saying i'm saying that either the state court some point in the process in this case five years or six years after the injunction is issued when the board issued its decision it is jurisdiction lacking in the state court oben issue from the beginning because  you are what would happen to the jurisdictional issue i'm going to rephrase that there's a difference between a charge and a complaint in this case the region issued a complaint against champion holmes september of one thousand nine hundred ninety that should have been the result in this case that would have been consistent lomas plaza i happen to think that dr is wrong for the reason i've expressed that it was the jurisdictional question but the board has taken the position that this is a result of the sears case which makes it more complicated years you have a situation where an employer sought an injunction against trespass and the union played a game of not going to the labor board of not filing a charge of the labor board to test the jurisdictional question so the supreme court was faced with this conundrum what do we do want to circumstance where the union's conduct may well be arguably protected by the national labor relations act but the union refuses to invoke that process to determine the jurisdictional question i e going to the labor board who should make that decision and the supreme court said in that kind of a situation where the union punishes him by going to court that injunction which the which isn't clear in the record was a heavy burden on him because among other things those kinds of injunctions prohibit you from owning guns i'm not a gun advocate but there are serious notice that says i was wrong from the beginning the traditional board notice my last it was preempted i should not have filed it or at least i should have withdrawn it after the board completed its initial investigation and  took the region eight or nine months to investigate and consider what to do and finally issued a complaint on the lawsuit issue but as you member from the record what happened was they had no trouble finding that the discharge was unlawful and issued a complaint in it and that's no no this was not a union matter this was concerted activity which the national labor relations protection even if the union isn't involved trying to stir his fellow workers up about this bonus program that is protected by the the parties or check well the parties are reflected on the injunction and that's a little bit confusing the injunction is containe it's not clear from the record i'm not sure the union filed the l r b charge itself on that date but there was really no active organizing effort in the sense the union had filed a petition for representation there was sniffing around and reverse got the union it was not aware of the consorting nature of mr reavis is the activity of protesting the bonuses and the company's argument is flawed for several reasons first its reading the board's decision  board in its first paragraph second paragraph affirming elegies findings those findings are part of the decision the board added to amplify those findings the fact that during a terminations meeting with mr stewart the man in burden of showing that the credibility finding discrediting the testimony of mr stewart and i might add mr donny scott was irrational and not entitled to deference the second point the company disputes is the question of motive and here again it's argument it's off base the board i thought that the judge fine judges finding that the company was motivated in substantial part to terminate m because of his posting of the letter and his engaging protected concerted activities or expressly noted that the judge's analysis was consistent with the leading case in this area meyers industry was told to com into the employer's the general manager's office where he met with mr scott that's that's very quick timing during the course of this conversation mr scott asked mr reavis question about the letter understandably he was hesitant to answer these but he did say that he agreed with the three of us then also said you can't fire me for that reason i'm gonna scott said well i don't like the way you work now can i fire you that's a virtual and mission about what was going on here there's also testimony in the record i think it was from mr stewart that mr reavis was a hard worker so that reason just doesn't hold water for them or i mean and the fatal flaw here is that the threaten people with bodily harm the judge found that this was not true that the quote unquote threat that occurred during mr reeves as conversation mr stewart was a quote threat to file a lawsuit and that mr think end of the day the company's challenge to this a one finding is really reduced to a quarrel with credibility findings as i said earlier though that's a heavy burden for it to meet the judge here expressly noted that he took into account the demeanor of the witnesses proceedings and the judge basically found that her notes which he basically explained they were they were utterly self serving and didn't meet the normal attributes of trustworthiness found in business records so in no way has the company you know met its high it's ok that is the second issue on boards to me it's that it correctly found in the circumstances of this case and we acknowledge there's there's a fine line here in describing what happened  the better course here given the nature of the state court restraining order was left to let the proceedings play out basically at the time the board found that mr reeves says was quote conduct was clearly protected the of the state court restraining order which incidentally i believe looks like it had expired about in january two thousand and two were preempted because they conflicted with the board's reinstatement remedy in other words the portion restraining order that were in effect that barred mr reavis from coming on the premises or talking to employees during working hours these had to yield to the board's reinstatement act the preemption doctrine that we're dealing with here that conflict of remedy at that point the board had found that mr reeves his conduct was clearly protected given that the conflicting portions of the state court restraining order had to yield backing up and all call it  preemption the pure preemption argument it's been said that romans plaza supplies the relevant framework of analysis to this issue and the union would argue that under that case i think as i understand  argument the boards the state court restraining order was preempted at the point upon which the general counsel issued his unfair labor practice complaint alleging that mr reavis had been  to state court restraining order is t r which blossomed into a full fledged restraining order was preempted poor woman's positive there are certain things then that would have come into play when the complaint  when the complaint issued it's the post complaint per stewart of a lawsuit we're not talking about the pre complaint pursuit of a lawsuit as i understand it because the judge found the nobody is arguing that there was a retaliatory motive at stake here after all the  court found that the allegations were because it would reasonably tend to worse the organizing activities or employees from engaging in protected concerted activities but that is not the case and that's not the case because the woman's wasn't involved a lawsuit designed  after all you know it's a compelling interest first state to enjoy acts of enjoying acts of violence threats intimidation things of that sort the better course then in the eyes of the board was to as i said let the procedures run their course and at the authority supports the approach of waiting until the remedy is defined and then determining whether or not there's a conflict of remedies as opposed to addressing the peer preemption as you phrased it to my knowledge your hon is a novel issue the authority under which the board ordered the company to petition the state court can be found from womyn's which cites supreme court has taught that when activity is clearly protected at that point the board's remedies obviously trump as a matter of supremacy the conflicting state court remedies in other words for the board's remedies of reinstatement letting this individual back into the premises to be primarily your honor but they also speak to our conduct that is our group there's a distinction between conduct that's arguably protected or arguably prohibited and a distinction is drawn between that and conduct that is clearly protected or clearly prohibited as i understand it given that board's decision ultimately found the conduct that mr reeves engaged in was clearly protected there's authority in those that want to cases that the board's remedies trump the offending provisions of the state court case is very clear about your sections that at least i have at my fingertips that is the simply the court discussion at pages six sixty five to six sixty six four fifty six us six forty five where the where the supreme court said the court of appeals was without jurisdiction to consider the question have objected to the board's decision in the petition for reconsideration a rehearing the failure to do so prevents consideration of the question by the courts i'm sorry or i cannot put my finger on exactly where that comes out in  he argued in his brief that it was and where he said it was presented to the board was in the general counsel's opposition to our exceptions to the l g s decision and he's wrong it was not presented to and by the way that argument that mr rosent the issue in that brief was whether the state court lawsuit was preempted as of the issuance of the administrative complaint ok you know we're way over time here for no