your honor please the court my name is greg roberts and i'm here on behalf of big ridge i'm in an unenviable position i stand before you today to talk to you about a decision you were under about a year ago and what it says and what it means law as interpreted by various courts and we believe that the statute requires that result so years ago script court issued a case called due process stealing in that case they found that the  more members and i would think at the hearing officers ruling was still pending before the board once we vacate in the board's original ruling why was the hearing officers ruling not still pending i mean are you saying is your argument that an improperly constituted  think you can get to any of the statute says quite clearly that once the board transmits its record to the court of appeals the court of appeals jurisdiction is exclusive at that point it's not as if the case sat in the in front  they'll canning was never decided or you all didn't decide this case the case was transmitted to this court in accordance with tanni and tenney says the court has exclusive jurisdiction and its decision will be final our overall point here with respect to the statute is that the statute lays out a scheme which may or may not quite honestly be fair in this instance but it lays out a scheme which says once jurisdiction is  order of the board i think if i follow your logic it would be as if you all never had jurisdiction to decide your case in the first place the supreme court never had jurisdiction to decide no candidate but you did  order was issued by the board and you then did acquire jurisdiction when the record was transmitted to you and when you did that the board lost jurisdiction and the only way for them to redecide it is if you gave it back they asked you to give up here you know you argued on page twenty seven at the opening brief that eagle pitcher teaches that and i'm going to quote if the court of appeals police a portion of the board's order remains viable portion of an order in other words why he went eagle pitcher apply when we ruled that the initial order was a not that he didn't rule on the board's order because there was relating to no canning they have not found none of them that the board's order was a knowledge c and therefore it didn't exist they all found it existed but they found that it was improperly improvidently granted or in probably a ruled upon by the board the reason eagle picture applies here is because you all issued a final decision which says this court's order is final and the case is closed it's not a two port order it's not a two part mand what eagle picture says is exactly that your decisions with respect to reviewing in a large cases are not dual in character they're singular in character you denied enough all them to the board the only have jurisdiction and we certainly would be splitting from the eighth circuit if we agreed with you your honor you you would be although i would say there was an earlier case in the eighth circuit which was not cited in eagle pitcher where they found the opposite but i acknowledge your honor the difference is a difference is that the merits decisions were rendered but the courts including the supreme court who have opined about what tony means what the statute mean jurisdiction don't distinguish whether the merits were decided one way or t'other or for whom they are the the courts or interpret what the statute says and it says when you get jurisdiction on the court of appeals it's exclusive and the only way for the board to get it back is unless you give it back either by directly remained in it or by expressing in your opinion and intention for them to take it back you didn't do that here  officer simply seem to have believed woller over kerner on what really happened and how how can we rehearse credibility finding like that at this point you know in walter's for sure in his truck was already stopped he simply unloading and disagreed with an order to stop unloading only after he asked why the order was given why is that a safety issue well your honor can let me start with your original promise you don't have to decide between car and wall or you have to decide what banner thought and what banner beside you he's the one that decided whether to fire the guy and in  whether it's weis sears roebuck or otherwise you have said it's not a question of whether the employee you're in quotes has anti union analysts it's whether the decision maker has anti union analysts and whether he applied it in making the decision better made the decision now the any longer being he says you did not research this argument where in the record did you preserve the argument company was motivated by anti union animists in the decision and the question was that the judge failed to answer is whether the decision maker was it's not a question of preserving that judge that's what the case is about that's what white li requires that's what the evidence was put in for well the spirit us kind of have to help us with that i guess your honor so i would say two things if i could about merits one the motivation ascribed by the ail jay is candidly ridiculous the motivation is that the employer fired this guy to win an election i've been doing this for forty years i know employers do those things sometimes but this is not one of them and here's why he wasn't fired before the election you don't fire a guy to win an election after the election occurs that's what happened here the motivation decision by the and by the by the original to start flawed too unless you prove better had anti union animists and that's not the same as knowledge of wallers conduct this court made that clue and clear in the shock chicago tribune case knowledge of union activity is not the same as anti union analysts had they had to prove and the judge had to find that better was motivated by that analysts had it and was motivated by it when he decided to fire this guy there's no proof in this record that that's the case morning may please the court i'm heather paired with an r p you know first address the threshold issue of the board considering the case a new and then move on to the merits of the company's unfair labor practices against mr w so to begin the threshold issue is that the board did reasonably construe this court's mandate in light of its judgment and opinion to allow the now properly constituted board to resolve the underlying unfair labor practices indeed is this court stated in however it is not required that this court explicitly and a case in this procedural posture and that is the teaching not only of whitesell but the distinction with a big difference of ego pitcher and the other cases cited by my opponent all of those cases were cases in which a court issued a decision on the merits determining that  issue an express remand in no canning but i can see you know i saw from the subsequent history of the case and the board then took exactly the camming that it took here considering the case and new and entering an order i see that there was no subsequent petition for the employer simply accepted that the board had jurisdiction and comply no your honor in fact that is incorrect indeed i'm well aware because i'm the attorney handling that there has been a canning but in the fourth circuit i had the pleasure of engaging in an argument with mr robertson in early september in a case called huntington it's pending in the fourth circuit in that case and another one called enterprise these are the four cases where there was not an explicit remand that was issued after can it was decided yes so that is still pending are you and is not necessary in this particular procedural posture to get the case back in front of the n l r b to decide a new when there has not been a valid final decision of the board  and i'm happy to to answer any other questions on the threshold issue or otherwise all i'm happy to move to the merits ok so the the remaining issue in this case is  whether or not substantial evidence supports the fact that the reason why big raids fired mr wade was because of union activity and not because of what they unreasonably believed to be a safety violation so my opponent initially made some statements with regard to the merits that i'd like to address and the first is that the key he said is what mr bender believed as the official who decided i also believe that mr osman was also involved in the terminations but there is evidence that mr osterman and mr bender had animists or m didn't give you any evidence in the record that matter had anti union animists the judge didn't find that nor is there evidence in the record that he was motivated by anti union atmos and the judge didn't find that according to cases from your court w that the board has failed to meet its burden of proof in this eighty three discharge case of waller the question of safety and how that comes up if the question again is what it better please better got eight written statements he interviewed h r director who gave him the facts he refute the facts and he testified what bothered me the most was the safety issues underground regarding wallers conduct with respect to kirchner and it was not better for that is reason therefore in this court under the lights case and the sears roebuck case they can prove their part and making speeches according to this court making speeches is not equivalent