herders contract for the two shows in question was unlawful under the act and ordered that carter be reinstated to her position the only issue here are presented is whether carter's contract was not renewed because of her protected activity at the december thirteenth two thousand and eleven staff meeting as the board majority found or as the a l j and the board dissenter found whether her contract was cracked that is the standard of review and we submit that there is not substantial evidence to support the board's decision the board although it stated that it was accepting the credibility findings of the l j in fact rejected those findings by relying only on this or saxes testimony the board did not work to the testimony of the choreographer of the dance captains the dancers all of these other people whom the l g a specifically found to be cr credited his first testimony credit his second guess correct his initial testimony is that he decided he did not decide to renew her contract until after the december thirteenth meeting and that he relied on input from mr martino and that's correct so the board rejected all of the credibility findings which the l g a made with respect to mr sacks she credited his initial testimony because it was corroborated by numerous other people and she specifically discredited the second that is correct i thought the board's only riveted and friends is implicitly based on a rejection of the elegies very extensive and detailed probability findings with respect to all of the other witnesses mr her and then what happened is that i guess this in a sense is the story of no good deed goes unpunished mr sachs did have her contract renewed in order to give her other opportunities he finally then you know listen to his colleagues at the show and if you recall mr martino who in the l j specifically credited testified that in november of two thousand and eleven there were i decisions going on and  general principle of gas but i think the key here that makes this case very unique is that this case is all about credibility there is no smoking gun document that indicates his motive this is what i'm trying to get you focus j was testimonial the a l j heard all of these people was the only person to see them and to observe their testimony and their demeanor on the stand and determined that based on her findings that all of these people were credible based on her specific findings with respect to mr sax's testimony crediting that which was corroborated specifically describing the other that miss carter's contract was not would not have been renewed regardless of what happened at the december her contract regardless of what happened to that meeting because of all the input i had received and all the issues we have had the l j credits that testimony as i understand get correctly from wrong trying to understand and then sacks later testifies actually i made the decision even before that december meeting and not to renew her contract in the l j discredits that system so l j believes his initial testimony he was going to l j and the board even more than the old carers a little suspicious of the conflicting testimony and also the timing makes i guess a couple things the timing makes it a bit suspicious for the board that her so quickly after the summer factors did not consider them in her right line analysis and that that is just factually untrue so as the proper remedy here is i find this a very close case i'll just put that on the table for both coun is the proper remedy here under your view to send it back to the board i know that's not your preferred remedy send it back to the board for the board to reconsider the case without making some  necessarily something different he would have kept around here but for the summer meeting that doesn't follow me and i know you for a second the second thing is the way the board characterizes the case credibility fine findings as you point out does not seem to correspond how  you certainly could send it back for further consideration and house i find that remedy of it's a tougher hill to climb given that which at rogers was emphasizing the standard of review although it is proper for us from looking they're driven or zero or one i don't think it's a scrivener's there i do think it's a boilerplate phrase that i know is researching for this case it seems to show up quite a bit they say that they did not x they say they accepted the l d s credibility findings but you saying something doesn't make it so that's when you read what they did with i'm sorry sir when you read what they actually did the only way to reach the conclusion that the majority came to end  pointed this out very eloquently the only way to reach that conclusion is to not accept the credibility findings with respect to really all the all of the other witnesses to just put that aside and again i would and her pretty activity was a motivation but it was the burden of the employer to demonstrate that it would have discontinued her con do the board is focusing on his failure to explain why all of  go but i just want to say suddenly is the board's interpretation of what he did and for months he was being hit with all these people saying get her off here she's driving us crazy she's a bad dancer so what needs to be had extraordinary patience but it's their court characterization of suddenly that has no evidence yes i do agree with characterization of the word suddenly that it definitely is the board's interpretation when you read mr sax's testimony in the transcript as a whole and this is at eighty five seventy two and page twenty five of our opening brief he was asked at trial why did you not renewed her contract this goes to the very question and he says the real simple answer is because martina and the dance captains told me don't we knew her on the new contract a good plot quoted so i won't read the whole thing but he states very specifically that he is finally listening to them and acting upon their concerns and he's given her enough opportunities he's not obligated to allow her you know infinite opportunities to continue to improve her performance and it's a subjective issue to be sure we're talking about life theater versus something that can perhaps be more specifically quantified but he doesn't answer the question that it was performance and attitude issues it was that it was not what she had to say at the meeting other dancers spoke at the meeting too as well including one a miss we sure with whom apparently the discussion was quite heated and she was not let go and remain with the show for quite some time was looking for as a choreographer and again it is a subjective subjective judgment call that you're making when you are talking about wide theater as opposed to many other cases in which  is involved a bigger thing what's your attitude as reflected by the complaints from a fellow dancers in the dance camp yes it was certainly if not bigger i would say it was at least as big again when you're working in the context of life theater performers the attitudes and behavior backstage can be very important in terms of how well they're going to perform when they when they do take the stage and that was also a consistent complaints that the dance captains had been receiving from other the answers really since the time that she that she joined the sound of a tricky aspect of that for me was that she's constantly talking about the pay and the conditions of work  and then that's what comes up at the december meeting but hey that's the holiday pay and things like that condition that does sound like she's then be not from the allegation of her complaining to the homework oh to her coworkers well she wasn't always just complaining about pay and what not a lot of it apparently according to the record had to do with boyfriends and the costume fedders and things of that nature so i think you know the a l j did do came to the correct conclusion again in looking at everyone's testimony and observing their demeanor but i know from mr martinez he's very very clear in his testimony that that the negativity that he cut calling the negative behavior backstage was impacting other dancers performances on stage and so yes that  obviously was a consideration but the holiday pay issue that you mentioned at the december meeting was not raised by car or it was raised by another dancer and those who testified that were present at the meeting said that mr sax's interchange with that second dancer was actually much more heated than his exchanges with miss carter and yet that the answer was was not light bulbs so you know i don't think there's anything suspicious about the timing her contract was due to expire on january second contract renewals the record makes clear for all of the dancers were going on in the middle to end of december and this isn't you know an industry practice there so there's really nothing suspicious about  testifying clearly that she understood her contract was not for infinity that every six months it could be renewed or were not renewed and that was always in play so i and i think the l g did specifically address all of those issues was there anything in the record that they traditionally waited until the last month or so before they either extended the contract or didn't extend  the reason being that if you told a dancer six months in advance we're not going to do your contract is there anything the record i'm sorry that there's no specific testimony but when you look at the sink the dates on the contracts that are in the record they do tend to fall in that last couple of weeks before the contract expired and you know even ms carter did not deny testify that she thought it was unusual all as of december thirteenth or twenty first whatever it was that she didn't seem to find that unusual that her contract had not been renewed and she you know it got so out that specific question wasn't asked but it does seem to be the industry standard if you just look at the dates on which the contracts were all s months but the extension was for a longer is there any explanation there there is not i don't believe that that ever so in reinstating her what contract so i guess that would be trying to say that may have been the extension i would have to just double check on that but the end date was specifically stated to be january second of two thousand and twelve so what would she be the record is silent on that because what's your employer what your client's understanding i'm order i'm sorry what is your client your client is challenging to reinstate her employment absolute the contract terms which would not include those which were found to be unlawful by the j i want which contract i would presume that and again maybe this speaks to  that's what it would be thank you thank  you please the court tell us about her behalf of the national labor relations board david sax knew for eighteen months that his choreographer did not want to renew and carter's country it was not until after she engaged in protected concerned activity by leading an employee meeting at which she raised issues regarding pay and scheduling injuries that he decided it was finally time to let her contract expire so i see  getting worries about taking the show on the road and it was a successful operation this is carter and change from day one but they were receiving all of the a focus on i think they only answer your question here are by saying that when they held those two parts when they held business auditions in november there was no evidence no one ever said that they actually found dancers better than and carter they were looking for i think saks testified to for dancers to replaces lois for there's no evidence they found this for dancers and if they had then they could have fired her then and the contract allowed for a two week notice and non renewal so if they had found dancers better than him carter in november they could have it least put that in the record told the board about it or let her go  renewing your using not renewing their well if if in november before the december protective contrary that city they could have not renewed it well they could have let her go they could have given her notice and let her go so i have a question about board's order of the board's opinion it makes a point similar to the point you started with i believe which was saks had renewed her before even after receiving complaints about her but it just strikes me that that can't be the dispositive because the concept of a tipping point which is ok i'm going to give a second chance third chance every employer in the country probably goes through this on a regular basis with i want someone to improve i want to help them and then it's not happening and finally you reach the point of this case not renewing the board didn't seem one of my questions about the opinions didn't seem to acknowledge that part of the observer's reasoning and just the real world reality of how these things can happen i think on this record you serious talking about it a little bit before there are two parts to right mind right there's no dispute that the protected concerted activity was a motivating factor in her discharge then we moved to the second part of right line where we were sachs has to explain why he discharged the board seems to rule out the possibility that he would have far would have non renewed or anyway because he had renewed her previously and that just struck me as a failure of logic there i think reasons decisionmaking my view on this record when i don't find in sacks is testimony anywhere where he says there was a tipping point he never explains to the border th jay there was a camel that broke the camels the there was a straw that broke the camel's back that never comes up with he says is they told me they didn't like her when i decided not to renew her contract but he never explains why then why why was that the time because her right the risk contract was about to expire so we had to make a decision sooner presented you know i wanted to avoid the decision but he had to make the decision that it was coming up early jan martina testified that they were holding that they were holding additions he wanted to replace or the discussions about replacing her never occurred until after the meeting kelsey testified it was accredited by the l j j says about that testimony is that no matter what martinez martina believed david sachs was the decision maker and then martino might have believed a decision had been reached then but no decision was reached until after the protected concerted activity but the problem this case as you well wears that's the same time when you would normally be making a decision which is december of not renewing something and so that's that's  this on the shifting explanations point for sacks that's the next paragraph of the board's opinion my concern about that paragraph is the board seems to say well he had conflicting explanations therefore we're not going to credit him where's the l j said you have conflicting explanations i'm going to credit his first set of testimony as i meet the l  problem is judge henderson underscores the board says it's accepting all the l g s credibility findings but it doesn't seem to accept the credibility finding that at least as i reveal jack sutton saxes first round of testing was first read the testimony as i read it is just that they decided he decided to let her go not because of the protected activity well he says that after at the in the two thousand  he listen to martina and that he has captains and decided not to renew her contract but there is no explanation by saks that he doesn't go any further than that for example so with the board is saying is the l g has made a derivative inference there's no testimony that says i decided soley on the bay i've never considered the productive activity we've documented her bad performance this is the end i've given her three chances that's not the testimony the l understand because of the timing because of his prior behavior but he says that in the l j believes that and the board says we don't not challenge the l g s credibility findings yet it seems that in that's where the there's a there's a legal finding their rights the you know david sacks says we decided we talked about it tiger didn't want her anymore i said ok we'll get rid of are but the legal inference from that they are dangerous is he would have fire her anyway right doesn't the legal conclusion and the board disagrees because of all the things we talked about the timing and it was factual that he would of he had decided his own head or he had said to people which we are that but he decided his own head that he was going to non renew our regardless of what had happened i don't read that in the as testimony certainly and what we know from the facts is that that decision was not made until after the meeting and after the protective contrary to activity but then i get on with you on that that part of it and the l j says that in the part of the testimony credits the point then becomes you have  timing is suspicious he says why would have done it anyway and the question is is that are you whining are you telling the truth that's really what it comes down to are you lying and telling the truth when you say that and the l g has to figure out are you lying and he telling truth that's really time let's not forget also that the l g a did not do part of the right line analysis she had then to fight the shipping explanations and she did not discuss the pretextual analysis how she was say pretend she was dealing with the second mind but rather that she didn't understand that it was the employer's burden to demonstrate and so sachs who is the decision maker i think they certainly could i mean i think the board's view is as it stated that it did not overturn any credit credibility determinations and even on this record i think even if you decided the board did overturn i think the board would want to see some sort of proof that that was actually the reason some sort of indication testimony it could have been his testimony i don't read his testimony is saying that explicitly he said several times that they had discipline turn written or up formally but he couldn't find those a l j german adverse inference because he said there was a meeting in which she was talked to but they didn't call the manager who still employed was actually at that meeting and they all danger and have presented friends that meeting never happened so i think if there was a question i think of whether she was aware of it that's not a question of what his mindset was right but in terms of meeting your right mind burden yeah there's that p c a and then there's a firing it would help the show's mindset if he had actually made her aware to help your not be out there but exactly what i but he could have had a mindset of what she's just rogers in my you know describes the law accurately there is some law that says yes when you overturn the l j that means that it's the board's reasoning has to be scrutinized more carefully  this more art than science and how that's articulated in the case law but here with it seems to me to be a potential problem and i'm reiterating what i said before is that the board did not purport to be overturning credibility  an appropriate pretext analysis under way line she didn't use the word pretax but it goes on for pages she cites right line repeatedly so she did in fact do what she was supposed to do and we believe reached the correct conclusion where do you think the best place where two he was specifically asked and they're discussing the decision to not renew her after the meeting so that testimony is in the context of after the december thirteenth meeting he's asked why did you not renew her and he explain is in reliance on routine and the dance captains and that really enough was enough thank you