the testimony of three highly credible and completely neutral and unbiased witnesses not employed by means to read your read in admission right leg must work did you accept to with respect to this conversation about it's all about the union why did you accept to specifically we did not file strategy reasons for filing and not filing but just in terms of our position which has been consistent is that again the impartial experience sales say this was not some rubber  stamp what the company did this was a loan decision by the l j very factually detail he deeply discuss the evidence pro and con most of his findings were in our favor some way of finding that gillis made this remark were not in our favor but what he clearly did was he reviewed the witness credibility he made very specific in detail findings on this round he also actively so we felt that in contacts we did not feel that it would be prudent to accept was findings because again we did win and he did not i mean if he had made findings like with them or found i think clearly didn't put the weight on the finding that the majority did and as we've argued the evidence is not so were the weight that the board put on it the board really reads like an advocacy brief one of the quotes that in preparing for this argument that really struck us is that the board said that gillis would not be deterred and whip and went on to talk about the union and that's just nonsense  that's not supported by the record and i would specifically on the court the nonsenses the idea that gillis would not be deterred that and that she was basically help bent on making sure that she made this discussion about the union interesting way we could have accepted to this we didn't but little does know for the record that alice martinez was at that later meeting and she said that gillis made the comment both times not just at an earlier t now again though september who is the supervisor of the decision maker he's talking about that in the context of why he went to interview these witnesses that this ready time it was suspension but she anticipated it might become a terminations but it was the suspension she said was because of her union activity so now she has plans about flagging the raise as an issue  us has been around enough to know she's high up in the food chain this easily could be and in fact was made into a case before the board and so at that point even he's never met them before he's only able to talk to two of them but he wants to make sure that he is as credible as and bill was said they were you were satisfied that they were that is the biggest consistency in this overwhelming evidence proved that not only would the employer have made the same decision in the absence of union activity that the elder went further and found that the weight of the evidence showed that the act of abuse wasn't just alleged it actually occur he was that convinced by these witnesses and so you really have you know the board in its appellate briefs says that we have a heightened version of the bible that's not what it says in the decision so it just says it's a strong case it doesn't ascribe to us a heightened burden but i would submit that we met that heightened burden in spades in this case because of the testimony of those three witnesses and i just don't see how you get past that and the  right that what i'm saying is that the reason the browns the lower meet went well above and beyond that and if you're going to say even if you think even if you breed with the boards reef now it's a decision that you have a heightened burden well people say why why why why why and bill said you have to understand that when the public hears about nursing homes when he hears about retirement centers it automatically thinks there's something wrong and she says these three outsiders heard what they thought was roland saying a threat of physical abuse against a resident in a wheelchair when they're in a public place or in a doctor's office as i understand it coming into the doctor's office i mean they're not in the nursing home right now and then she says that is why we have to take anything like this so seriously not just because substantively we can't have people abusing our residents but that the outside world is prone to thinking that's what we're doing and then that leads her into and every time the public see something about patient care for instance signs on cars that don't say  unfair collective bargaining agreement but instead says substandard patient care whatever the signs they are that's what led her into saying just like we can't have any allegation like this made in public with outsiders without acting is strong as we can when you open it she should have never done it when you walk with signs on the right it was it's unclear from the testimony as to what was all about the union here's the inference was that the termination was that they were really talking about the science of the cars and i might add that because i only read the testimony in preparation for this is it is in there and again that the testimony that i cited she you d specially appendix page a seventy that is roland's testimony and it completely corroborate what you just described that also said i didn't talk about the signs until not at that point she did but there was also but but they were talking about but i think what she dallas was that she was talking about the public perception of nursing homes not so much about the science that was it was roland's credit testimony where the science came into that context and you're right that is the context in which was made and by the way this isn't something that was brief but it's not an  that assigning accusing means or reading of bad patient care will actually be protected activity obviously signs saying that there that they needed a union contract that's when it's essential protected activity the science brief but it's in the record portions of the record that we cite in the brief the board of a hughes windsor reading of not discussing the really the differences between nancy unprofessionalism perhaps negligence because this is someone who is very sensitive to the touch and absence in this touching her as gently as she feels she can nevertheless is causing apparently extreme to the resident who complains about it also complains that she made some very unprofessional comments and what did the write up that the records th shows that she was only she was given a written warning really it was for the unprofessionalism you're not supposed to really rising you're not supposed to get all upset and get this goes into how this employee who later by the way  there and that to me that's that's a shining example of how there is a disparate treatment you have basically an anonymous whistleblower in that case who you know all respect to whistleblowers  never knew this person's identity because this whistleblower he or she only spoke to the state so that the rich situation didn't even proceed in the same channels as wrong wrong and the complaint was made state that is how winds are reading found out about it and they never go into this they do not know of th yet and then the other thing the other thing that we highlighted is the post discharge investigation that they said passed out and you know as a legal writer if  awful point that neither the general council nor the union agrees on the boards is technically free to raise these but again we're talking about well in a situation where they came up with that on their rock and it's so on persuasive  on those beliefs and whether it demonstrated through record evidence that it would have taken the same actions even in the absence of the union activity the fact that these three stacked persons for the doctor's office who are now does not not only does not establish the employer's burden it does not establish that the employer actually believed and as that were found its actions and the testimony of its managers demonstrate that he did not been appropriate which is the question here he was asked when an appropriate unit had been terminated that is not evidence that the employer would have terminated her think porter's burden it's not you know the employee subjective opinion that it would have been further respond here on the i guess that the point that you're making or the circulation that you're offering about the importers investigation i could see that argument holding much more weight if it was not a actually happened but of what it reveals about the employer's elite and the board reasonably found any stand in the operative interpretation your honor is offering but respectfully the fact that there is an alternative interpretation is not a reason for the court to this place have or it's reasonable to i don't think the got a patient who's on families we see so much of this road we don't think this happens of course you're going to say i've got to talk to everybody i can think of because even i think gills i don't know if this is a testimony but the impression you hear reading it is everybody was astounded as this that this happened and the resident herself mimics people has different voices and the three witnesses the only one as we've heard two distinct voices rather than one voice i mean one sentence in one voice and one sentence and another voice i think it shows that there are good faith in trying to make sure that when they fire this role and they were not acting unfairly to her what was  their hands were tied to shows that there was a reasonable basis for the employer to have believed that in this role and did it at the time they carried out the discharge there was also a reasonable basis some of the evidence that your honor and  took the board recently found that the path they took was that they doubted they continued to doubt and i guess i'd like to add to that this role isn't suspension she suspended she's at home she's not interacting with residents she's not coming to the facility so what is the employer's rush what is the explanation for the employer's rush to carry out this discharge when she is not there when they continue to harbor doubt that she did it and they harbor so much doubt that they determined we need to keep investigating whether she did it even though we very fire i'll tell you one reason for the rush that is not in the record and that is this happened in public and those three ladies we don't know that there were patients in the room we don't know that those three women didn't say you won't believe what happened in our office this morning and the whole point of kill assange everything we do in a nursing home once the public hears about it we always get the bad interpretation or they always believe we're here abusing these vulnerable people that's one reason to continue only i can see that as a reason to further investigate to pipe down but not as a reason to pull the trigger on discharging this eleven and a half year employee who was undisputed before this event had always had a beyond exemplary record had never once been a in explaining that the stress of her own ultimate failure to dissuade to dissuade the doctors office staff persons from claiming that that voice that they heard make that threat was miss rowland as opposed to  rowland and she articulated that in her own words in describing why she continued to be very distressed about the discharge after having already carried out the discharge it is undisputed the judge even found investigation was to check or establish the quote veracity of the claims made by the doctor's office staff persons and to quote find out if they were credible and i don't have much time on my clock i wondered if i can quickly talk about this for treatment if i if i could talk about this for treatment briefly just briefly you know ok well i guess that just briefly i think i heard some discussion regarding primarily nancy and i mean the board we respectfully submit to the court that the board's finding  physical misconduct and i i would submit to you that it's that that notion is not supported by the record company the documentary evidence sets forth this and since conduct her explanations for that on the report of the president and furthermore reported her conduct to the state of california again based on the account of the resume and in both the discipline and in the report to the state of suspected abuse that gentle that she continued to handle her in a gruff manner if there are any more questions i'm more than happy to answer any of them otherwise i