framed this case and his hearing of the evidence under an improper standard the atlantic steel standard for determining whether content remains protected in light of an employee employer interaction that is not the proper standard for employee employee interaction but the a l j heard the entire case under the atlantic steel framework and when he extent yesterday he had he failed to apply the correct analysis the right one and now assists the board trying to salvage the decision but the board applied an incorrect version of bright line right line requires the board to determine whether a union growing employer who takes a mansion had a good faith belief and the misconduct or the conduct that is that issue it does not require the union where the employer to prove that the misconduct happened now in this case the standard  canonical substantial evidence is very specifically defined it must take into account the record as a whole including whatever the only detracts from the board's decision it may ation of certain evidence as to facts and law the court must determine whether we agency considered pertinent evidence and sufficiently articulated an explanation for its actions in this case is that with you will find there this decision falls agree jewish we sure the substantial evidence standard at basically every point in time for example of testimony was undressed credibility determinations were made without any explanation which ignored that those isolated comments came in a context of complaints and interactions multiple argue that the a l j was wrong to apply an atlantic steel standard to say he's content to retain the protection because he didn't become frankly violent or vulgar and so on were cases hold that a less egregious misconduct as between employees can deprive the conduct of a protected character for example there's a case that we cite where  is removed from the hiring hole because she shouts and someone she doesn't meet the atlantic steel standard but the board found that the indian was justified in their from the hiring hall because she case is that our position is you never took any adverse action to him and it required ignoring and entire body of evidence to find that anything the union did here or the union st constituted adverse action against mr lately because of his protected statements what was that issue here and with the overwhelming balance of the evidence ignored by the a ok in the board shows couldn't get my presentation out i couldn't get a word in edgewise and what's really interesting and also ignored by the a l j in the board is that this one of the description of mr legalese conduct in this small room is almost an echo of a description by a hospital witness jen dorsey who was a human resources system who encountered mr lately in the course of his on boarding if you will when he was in the hospital before he began work to fill out papers and so on and she described him as interrupting me repeatedly to a point where i couldn't finish what i had to say and i couldn't get a word in edgewise and there was no accounting for the he he didn't raise that during this the so called neutral witness corroborated that langley had a loud voice and a big presence corroborated that he asked more questions than anyone else and asked some of those questions corroborated by the so called fresh complaint witnesses that two people lead a eight and make a ladies with whom one of the spoke it immediately following the orientation and what she said to them was i couldn't get a word in edgewise i couldn't finish my presentation he kept interrupting me he was big and he was round and i was scared and we had never seen this before that's what concerns them and me and the board we ail today ignored a decision that is consistent with the world let's go here that's rational with regard to the two millions in this case that affected the hospital one is the decision of mr late lease term nation and the other is the demonstrate an demonstrating and this on the part of the hospital in fact in the regular evidence showed that they had no animosity toward people who didn't want to join him simply they have to show under this court's precedents that there's a causal that means and all i could figure out was that apparently he wanted copies of all this paperwork and that made the process go more slowly and that upset several people in the h r department but that's not you know  f unreasonable request and you know for a seventy two year old man that maybe is not quite used to all the h r paperwork that we have these days for him to ask for copies of his paperwork is hardly a basis to find him his r the side of the orientation ok if they'd found that he was destructive they could have fired him right then and there they knew that this was an older man who could be a little bit cold but they didn't they kept him on because he was hired if he did not actually engage in that misconduct if that if it is evidence reflects that there was no misconduct then that is the good faith belief is not an excuse for the employer and that's the burn up ensues analysis which is actually cited in interrupted didn't give her the time of day that there was no evidence to support that in the record and that's why the employer can't rely on this good faith belief because it it's important for employees to be able to articulate their bigger questions and take union related positions and these positions are often politically sensitive and it's not uncommon protected now here not only do we have more evidence of misconduct but we also have evidence that was created from from mr discredited testimony that levine lately asked him where he worked right after he right after he basically made his statement showed her listen it says in your literature here that i don't have to be a union member she said you have to be a member with the word and he told them where she where he worked and then she said well i know people down there and i'm going to warn them that you're coming and you're not going to put up with you and the birth found that that is subject to be construed as a threat saying to somebody that his future colleagues of the boiler room are not going to legally raised their voices at each other about this issue of whether he had to be a union member he challenged her and pointed out that she was wrong there by you know questioning her thirty in front of these other people and she got upset and that and that's how she reacted and that's how she and she reacted by threatening and that threat is the basis of the board's fine you of and was on the union's parts that together if he if the employee unions are typically at loggerheads you could you could say well and you know what why would you care about doing the unions bidding but in this case with a system only that they have quote a strategic alliance between the hospital and the union section seven conduct it reasonable employees can construe that will will understand that rule as prohibiting that kind of section activity and so it's that essentially the room becomes tainted in the employee's eyes and therefore there has to be this but the employer could say we believe that civility is important in this workplace and therefore we expect everybody to treat each other in the most respectful way as as you know in their everyday duties it says the same thing it much quicker and easier exercise to redraft a rule than to pass an entire new laws are congress is now working but i think that i think that the basis for the board's decision is that there has to be there has to be an act by the employer to show that if we'll from here on now behave differently and part of that starts with this affirmative action of saying ok we're going to set this rule aside and we're going to make a new one and we're going to start fresh and i understand that this may not be you know the disagree as to whether this is the you know the best solution to the best way to do it but the board has a lot of discretion i do it in india for its remedial measures and neither the union nor the employer has shown that this is but this kind of remedy is a pain in attempts to go against the policies and the objectives of the act which is the standard in this case on for these remedial issues  now i didn't i didn't want to point out something which is there's very little tall order among my among the union in the employer the repeated we talk about the elevator nothing there is no mention of that at all what is mentioned is that she said it's true you don't need to join the union and she also said i talked to my attorney friends and i was told that being in part of the union was not a requirement for the to do this is what is mentioned in that one document which records the decision to fire lately there is another the there's another dimension he said you know he said i'm not even sure that i want to work here rude he was disrespectful no not at all his native behavior was the fact that he said well i mean if you guys really bite me then i guess i will and that is absolutely not a basis to fire someone and especially if i may i'll be quick first mr lately did during the indian and every nickel ladies and everybody else knew that from the outset so there it doesn't make any sense that they would be concerned about his statement that he didn't have ignore without explanation evidence of the cause of the union's concern the nature of its limited communications with management but their council's seen in that there is no evidence in the record of a basis for a good faith belief that he was abusive and about unprotected sex is simply not true there's no evidence in the decision that he was disruptive abusive interrupting des told her that lately told him spend even one word in its decision analyzing redlined properly nothing about good faith believe it didn't find anice and it didn't explore the evidence that shows that we have a rule we did force it without disparity and bad enough itself is proof that we would have treated him the same way so when we take a look at this decision and we realize that if we're telling you they're deciding this under red light they have an obligation