qualified to work as rigors stagehands lighting technicians with various venues when shows come to town like garth brooks or there's an event like rip that there's multiple venues that they work through work for throughout lincoln nebraska there's only two at issue here at m g m and freeman decorating freeman di creighton is handled differently than us m g and it has a different contractors different relationship they act more like the actual employer they take out the deductions from the check they pay directly so there's a different relationship as has three different venues for which i  works there's the persians honor there's the arena and there's pilot bowl now my first assignment of air here is that we go out and of course i came in there prepared with a lot of evidence to show that we are non exclusive service when the union can't meet the standards they can supplement it with it's own personnel or somebody else boy that sounds exclusive got to use you first now you're on obviously not did you see the ball underlined capital languages time they only called us in for big shows how is it explosive if they regularly use their own people first and then if they decide to call it then they can supplement that with their own crew or with others onsite completely how in the world is not exclu and then look at the practice rather go beyond that contract language and look at the practice they admit it runners are covered under that contract with us from g e tom fight about that oh but we regulate her runners off the isn't the testimony of the production manager in that substantial evidence you understand you can you can have like sixty percent i'm making this up you have sixty percent of the evidence and forty percent may be enough for substantial evidence i'd say ninety  see that later when he testifies about that so she discredits our testimony about ryan wait says he didn't have enough details but doesn't discredit the trust money where you admit oh well maybe i didn't really know what was going on is that fair determined to be not credible basically anything that we said was just not credible and anything the board put on was determined to be credible i would ask you to review that with a non biased i when you're not the agency judge not the board for the very agency is charging us look at that from a non biased perspective and really examine those credibility terminations at their face and not just well that's evidence that the unions put it on so it's not credible right but freeman decorating there's no question about because they're the contract says the employer agrees that all the work described here performed only by qualified workers from the union you know that contract really does  language that they do have workers that come and work beside ours that are not union employees i don't know all of the law that's enough to show their non exclusive frankly freeman decorating you've got a few calls a year you've got a few people out there that's the main thrust of our ever comes up that wasn't in the original charge well about seven months before that we quit maintainer e for a list of all except with respect to freeman decorating so that decision probably should be enforced with respect to freeman it any more so it's more in the six months that's part of the statue of limitations board says this was just a complicated way to keep control of the reform process you know what they say that's there i know what they say but if you look at those contracts it's been handed over the practices we're just not doing it anymore they hired our business agent to do it which is only logical you got a guy that's been doing it forever why not hire him that doesn't show that we're still maintaining control he's been paid by complete payroll limitations i guess i'm not sure what you're looking at for the numbers if it is on the brief i don't know are you looking at a time when there is your listing of issues from your brief can you admit of issues presented for and if there's no jurisdiction because you're looking at s m j as a whole i don't know if we touched on that enough so what they're saying is that they have jurisdiction over us and g because we're looking at all the business that some  now i understand how the case on normally that would be fine to go look at everything that that employer did where they bring in fifty thousand dollars worth of business of that area but what's different here what makes that egregious error is that they're define it for me as somebody persian i'm not allowed to put in any evidence at all that goes beyond us m g persian and they're saying that's the employer well they can't have it both ways they can't say i asked them to purchase an employer and i'm not allowed to talk about anything else and then say oh but we're going to talk about  we're not going to hear these cases and have it in their manual that says we're going to dismiss these cases if that threshold and then decide round this particular case we're going to disregard that rule we don't care if they're going to make the rules they need to follow rules it might be discretionary but i don't see any other cases where they're saying oh we've disregarded that it's been the rule for years and years and years they don't and that's a problem i feel like the i want to be makes rules and then change the midstream expression to keep up with what they're doing and always be one step ahead of them and by the way it's not going to be a lane a level playing field and when you bring in testimony we're going to automatically discredit it that's not the way our laws supposed to work it's not the fairness we're supposed to be getting when we go i realize agency decisions are always a little on level but hey if they're going to put rules on the players they've got a fall that's just the way it should be there are some issues here that we're not raising there's some things you're going to want to enforce with regard to the be fun we've paid it we don't really care go ahead and force it's not we're fighting about it's a few dollars to a few people you know with regard to our rules the working rules that's ok to go ahead and enforce that we sat watching the rules we never apply them and never use them against anyone anyway they were in a document that we can change that's fine so under the clear law as it is that was constitutional that was legal that was fine and that's one of the provisions that we yes when we decided to take them off the referral list i have two minutes left  thank you you may please the court i am greg laurel for the national labor relations board asking the court to enforce the board's findings because they're supported by substantial evidence reasonable credibility determinations and are consistent with settled law and a couple quick points and that i know your honour's are very familiar with the standard of review but under the substantial evidence standard it's not enough for my point to show that the evidence could go either way or perhaps another viewer could reasonably view it differently they have to show the board's decision was unreasonable and unsupported by substantial evidence even more so with credibility determinations this court standard is shocks the conscience so as your honour's noted a lot of these findings whether it was  or whether the reasons for this or that action like the suspension suspensions passed muster came down to whom the judge believed and my opponent has to face an uphill battle of showing that the board's choice shocks the conscience and i would submit generally they don't quite meet that burden although i appreciate that they're coming up with arguments one thing i do appreciate is i think my opponent noted issues not really pushing the issue of the exclusivity of the hall it freeman i will take her at her word any answer any question your honour's might have about the law she does still dispute the finding of exclusivity of the hall as seventy pershing i think that finding is well supported substantial evidence reasonable credibility determinations on both the language of the letter of understanding and accredited testimony of s m g is local manager and general manager who said we follow the terms of that agreement we don't hire off the street we go to the union for our labor and i appreciate there was other testimony such as by mr way but nothing in that testimony compels the board to view the evidence the union's way or shocks the conscience of the board believing those two officials over mr wade i just want to say it was more than a lack of detail it was that that gentleman couldn't specify when some of these instances occurred as the judge noted it could be that these were at times when s m g wasn't even the company involved or what percentage of nine union labor he saw there at that point it doesn't shock the conscience for the judge to say well i put more stock in those two officials who testified that they did have an exclusive arrangement in practice and i'm happy to answer any questions your honour's have about the disputed violations the suspensions the refusal to refer but the end of the day it comes down a substantial evidence and credibility again just give one example the union official who made the decision was asked why didn't you refer those two employees to that one job and he said they were the most senior available for those two positions i would have preferred them but for that incident incident that complete so what happened a complete that's the union's payroll provider at least that was the initial arrangement and the two employees in question went there because they had a question about the w four as in their paperwork their credited testimony shows this was a peaceful non intrusive meeting and yet the unions making the argument that's the reason we didn't refer that we interfered with their ability to make a living and we see that meeting is showing in that these are their actual terms in their testimony that we had reason to worry about whether these employees were stable whether other workers would be safe w them i don't think it's hard to see that it didn't shock the conscience to discredit that claim based on this evidence there was also discussion this morning of the section ten b of the act one sixty b and whether certain claims were time limit you can see the board's position from our brief we submit that that claim was in even meaningfully argued in their brief it's not enough to just cite the statute and cowslips enough to cite the statute that controls how they cite the statute yeah right and if it controls that's enough that's authority they cite authority but i'm talking about this court standard of meaningfully arguing and this is never eleven lines have eleven minds of argument and if the statute applies i think one line could win maybe if you put the statute right explaining what support do we have for this operative claim because one thing just a slight the start that we know what it says it has that six month period but their claim is we stopped referring before that six months started where is the support for that in their opening brief which i think is what matters for waiver purposes they cite one page of the transcript i believe it was j one thirty four frankly your honor i look at that and i don't see any clear discussion of the issue let alone something that would compel the board to agree with them which is important because again this is an affirmative defense where they'll jail i understood the issue the l g understood you know they have they have said the statute limitations but if i may your honor if i'm arguing first the procedural issue did they do enough to preserve it submit they didn't they argue more in their reply brief but that kind of shows what's going on here they're making some of their arguments and showing their support for the first time in the reply brief but as we know to go to your point the judge understood the argument because it was made to the judge and i don't think it was properly made to the court the opening brief and he said you know i've looked at all the servants and it looks like you did continue to refer at all reasonable times the contracts in question refer to this being i  and mr glass be dealing with labor provided by the union through i think the phrase is their organization at a minimum that could be reasonably viewed as continuing referral practice and again it is my opponent's burden to make this affirmative defense i don't think they meaningfully argued it and i certainly don't think they proved it so unless the court has further question yes yes now this is the first i've ever heard of this one thousand nine hundred fifty eight doctrine this siemens doctrine  up i can find either and in this case you've got one question about it is i understand one bit of testimony from the general manager of s e m g about where the company had purchased stuff from outside the state now i'm not excited about getting into this at all but it looks like you don't have enough here to begin to argue to meet your own standard well your honor as you noted this morning this is about  g the corporation and that the corporation is international and man you know and manages two hundred venues worldwide so it's not surprising they meet the fifty thousand dollars standard and why do we think they need it well the local manager for testified yes we've received over fifty thousand dollars worth of goods and services from out of state frankly that's a solid basis of stance eleven's for the board to find that it's discretionary standards matt and frankly this decades practice you noted of looking at the players totality of operations to say let's just look at this one location let's say your use that she was restricted only to putting on evidence about s m g purging as to the violation in personally really a discrepancy there and there is no discrepancy whatsoever i'm dealing with those two issues as to jurisdiction in the discretionary threshold the board did what settled law says look at the  employers operations and this again this entity manages two hundred when you look at that fatality of the operations but as to the violations here it was alleged to be a violation at this location so the issue was asked of that location do you have an exclusive arrangement as your honour's noted and i'm not asking you to tip your hand there's certainly some evidence there in the agreement in the practice that yes as in the persian we have a the board make a specific finding on this fifty thousand dollar issue the board found that the fifty thousand dollars threshold was there's a board still in force this fifty thousand the board applied that discretionary and still believes the old here and is a challenge but the board has this discretionary standard because it's a bright line rule and to help more efficiently manage it's not and it's not in that rule itself that fifty thousand dollars standard and how old it is isn't really challenged by my opponent here they're just upset that they weren't able to show non exclusive relationships that are the locations but frankly that just wasn't relevant to the finding of exclusivity at essen jeepers counsel for the for whoever was for arguing for the board or the whoever the general counsel at the hearing should have asked about all the employer's plants and operations and the fifty thousand dollars because the one question is pretty pretty weak what one questions for the week or the one question in your position general familiar with whether or not the company's purchase greater than fifty thousand from somebody outside nebraska that could have been a whole deal in missouri where they bought it only in missouri say the problem with the question is you know it's inflows outflows direct indirect you know what the rule is i know what the rule is i don't see that testimony as we can see it is pretty chrisman conclusive or you have to introduce you have to interpret it right you have to interpret it as being meaning the seaman's right ok i think the board's interpretation of that is reasonable and so the question is for the court what is my opponent's cite to compel the opposite because this is a discretionary issue when a substantial evidence issue in this court said the board's determination gets great weight the court's going to intervene in extraordinary circumstances i just don't see that here it would be different if we had such crisp clear evidence proving you didn't have activities meeting that threshold but i submit your honor that you know who has the burden on this because you made it into a burden issue by the way you answer that i made it it's a burden issue if you're trying to know who has the burned as the union have the burden or does the board have the burden the board the board is determining whether it's threshold is met and i will say the board can have the burden on that ok and it m my point is i was shown the appellate burden once you see ok you might not think your honor that this is the clearest testimony in the world but could the board reasonably rely on it i think the fair answer is yes then we get into the appellate burden what is my opponent so to compel the opposite records could the board take administrative notice of the fifty thousand dollars the board even consider doing that i would imagine it could but i don't know they didn't in this case my understanding is they relied on the debatable you can go either way the agency should be affirmed because that's the standard riverview i think in some cases i think the evidence favoring the board is stronger than anything against it and it comes down to credibility determinations which i think were fair and certainly don't shock me there's little more let sort of review than just shocks the conscious conscience and i ask you to take a look at that whole section and not rely on just a little bit of language plucked from a case here and there we're talking about the credibility consistently all these years that's the way the practice is man it's always been it was last year it was twenty years ago it's always been that i've been able to come in and do this not doing it through i r c but the reply sure ok well we'll give you more maybe it would help but i never conceded somehow that it wasn't sufficient to cite one sixty by providing more information in reply brief that was perfectly sufficient  and yes i am saying in this case there's been an abuse of discretion with regard to the fifty thousand dollars i am saying that standard has been much here because it's not so much that goes beyond what's done in the past that is going to a whole nother level and that's one of discretion where the finest employer now let me talk about anybody else anything else and then we're going outside that's what makes this different so based on that i would ask