our first case this morning will be box versus the postal service is that correct allan and then mr kendall you may proceed is that i see all kinds of allegations or assertions all over burdening throughout a period of time but nothing specific to the days in question nothing no evidence that suggests that on the particular days when the schedule was not met if there was an explanation for it and that explanation might relate to overburdening or some something else yes i understand that your honor and you have a difficult burden here because the question is whether there is substantial evidence to support the conclusion that the problem your honor is that the board has had it with you when it's made that state we before you get into reading and i am interested in your citations but the way you characterize the legal standard seems to me to be at odds with what we usually do in a substantial evidence case what you see if i recall correctly is that the board built the site under pages from which it could have concluded contrary to the conclusion it reached there is no obligation to the board to cite particular pages or the basing that judgment on that so that's point number one but the second seems to me more significant point is that when you say other places from which the board could have inferred a different result from the from the conclusion that is true isn't the substantial evidence test you have to show us that the board necessarily must it may draw on that conclusion based on other evidence that you're about to read to us not simply that it could have or is that do you agree with  and there's no evidence that they did you know it can't be there seldom is going to be evidence that the tribunals has continued considered every piece of evidence that that council to them so we typically don't require that kind of evidence we assume unless there is evidence to the contrary that the tribunals has looked at all the evidence that's before it so i don't know that that that it seems to me is not a profitable time when he's complaining look i can't take all of it it doesn't fit he said in correspondence the postal service is watching him like a hawk if he so much as leave his car unlocked he gets written up for a deficiency if there is if the truck was half  we have fog postal service witnesses certainly they would have said something about mr set up i have i understand that we're on overburdening but i need it you know with something in my own mind here first and that is the contract itself says the supplier shall carry all mail tendered for transportation what ever maybe its size and weight cetera you had to carry all of it why is there an  for transportation here read the board below found that forty feet is essentially the contemplated amount anything over well is it you'll have a truck of forty cubic feet i presume if you have to carry would have a bigger truck so i'm still what i'm trying to figure out why overburdening isn't it would all when you have to carry all the mail regardless but that's never how those contracts are interpreted the board loop did not interpret op i'm not sure how to read this but it looks to me like the contract all for one trip per day it's that is that there is one prep per day and the all the time but what happens in that case when there's an overage on the counter to comes back they give him an extra trip or they get someone else in the office an extra trip which is what was done in previous years because if he couldn't fit in his truck or if there was too much real for some other reason or if they're late and you get an extra trip that's the preferred the second thing would be carried over the next step and went and that would apply as well i take it to the sort of curtailing the curse so if you have more than three the transcript that you cited but i still don't see anyone that hits the nail on the head with respect to what the regarded as the issue i understand but the point is an obligation to consider and we're back to the point that you and i were discussing decision was the support of a substantial evidence because it seemed to ignore important piece of evidence similarly in the middle ages postal service case they sent it back down because it was the decision didn't show that it considered or analyzed evidence relating to a to make one strip per day and then if there's additional mail the management at the postal service decides how to handle that at they can do more thinking or rise an additional big and direct an additional trip they can have someone else at the a post office carry the additional  at least forty cubic feet of mail or is the obligation to deliver all of the mail that's read that well beyond the geishas to deliver the mail that you can deliver a based on the equipment that office that day what is their obligation to deliver all two hundred cubic feet or just eighty cubic feet or the forty cubic feet minimum specified in the contract if the truck had a pasty eighty  but what was the capacity of this truck and he was doing two routes and had one hundred seventy cubic foot truck you're on the capacity of the truck the bore didn't address any of this how are we to know what what standard the finding we're going we've been over that you know and we're aware of the standard but i'm trying to struggle with any any place where the board specifically told us the standard they were applying and how it was to be construed i think with the board talked about was they noted in the decision that there was a minimum requirement for forty feet and they basically they said in the decision they addressed mr fox's ar came under the country they talked about it in those terms they didn't do an amp analysis of the contract language they didn't do an analysis of it i think they assume for the sake of argument except for the sake of argument instance that when the successor contractor came on he said i'm being delayed because the way he took what he did things was he sort of everything before he started his right no matter how long that would take the business or said look you have to start running on time if you've got more mail than you then you need another sorter and they basically said get another story here to do it if you can't soar mr fox actually did things very differently he had his works worked for three hours what is the sort got for and this is in deliver he didn't stop you know he started the delivery around each day i believe his contract provided for starting deep delivery at eleven forty and there's no evidence that the  actually delayed the initiation of the deliberate and so i mean that's that's a significant point because it means volume at least in terms of so shouldn't delay things at all and there's nothing in the record record suggesting that volume should delay the length of time it takes to deliver it's in fact inherently impossible because the time that you take to drive between mailboxes isn't affected by specific days that simply wasn't presented by mrs fox but we do have evidence that he was sorting twenty eight to thirty three q b creek i mean linear feet which is far beyond the fifteen that you could do in three hours maybe double it and some instances why isn't that substantial evidence will double the amount of linear feet that he's supposed to be handling first of all there's there's nothing in the contract that suggests that there is any maximum amount in terms of linear feet that you get second of all what mr fox himself said was that when he would get say twenty linear feet of may and his sort could only go through fifteen linear feet in the three hours for sorting he could tail he didn't deliver the remainder he took the fifteen feet that were sorted it put that in the truck and then then the rest of it was left for the next day and that's what the word fact is that is one of the specific reasons that the board said you have not shown us that you actually had to deliver more mail it was because it was in part because he was returning on but what does the postal services position as to whether that was an appropriate response to having too much mail on a particular day the postal service believes that's not the appropriate respon write it suppose that on one day effectively more then fifteen linear feet of letters and more than two hundred let's just pick a number cubic feet of packages coming in what's he supposed to do the appropriate thing in mind that he'd better make the dispatcher's could be written up yes the thing that he needs to do on that date is get get instructions from his supervisor at the postal service people of nigeria saying it's kit taking a hard line and say but then we have to be careful to distinguish between volume which may cause the need for additional steps and simply the linear feet issue which there's no evidence to suggest that that would cause the need for additional trip but if you've got it i'm looking at seven point scene of the record here and he is saying holiday period each day so now we're we don't have an issue of whether or not it's proving it reached day he's saying each day it was greater than forty cubic feet way greater yes it exceeded forty cubic feet now that's three times the amount he's expected to sort and that's just the letters let's assume as judge writes and pointed out that you got packages on top of that and keep the proportions the same that's three times the volumes of packages and that's tied to each day now why isn't that substantial evidence that he was overburdened on your standard of forty cubic feet a day your kids got three times the amount he supposed to be each testifying to it each day forty linear feet letters that's not even the packagers why hasn't he just given a substantial evidence that he was over first of all let me take a step back and say that your issue is not actually whether or not the route was over burke that's not the defense that was present on but the board actually felt that there were some days on in the course of the holiday i misread that when i first posed the question but actually this is even better because we don't have to make the conversion he's testifying each day over forty cubic feet why isn't that good no with if you make if if i may step back to what the defense is here because the breach that was found was not that he didn't deliver he was not found in breach because he didn't deliver all the mail that he was percent if that had been the basis for the terminations then what you're talking about would have a different significance he was terminated because he did not complete his daily delivery in time to get back at this bad smell he testified that is departure time with delayed because he was over i don't believe he did testify that its departure time was delayed your honor there is certainly in the record on the board cites it up evidence saying that this practice was to  he should have gotten back in time well but not what about the fact that it seems to logically that if you have more than the allotted amount of mail it takes you longer to deliberate so that even if you get out of the dispatch office on time it's going to take you say an extra hour or two to deliver all these packages up with even if you're the fastest sugar in the world and you throw the package in the back of the truck you still miss dispatch because you had too many packages i think there are a couple of points to make on that your first of all mr fox never testified that the amount of mail that he delivered the amount that he put into his truck  actually slowed his deliveries down there's no evidence in the record where he said the amount of mail i actually put into my truck into labor slowed me down and that caused me to miss dispatch just going back to the defense that really was be presented missed by should have had to prove two things first of all that she has to deliver more mail than the contract required on those specific days the driver was late and we've just been talking about that but there's an additional element to it and that that and that additional element is that the additional volume of mail rather then the time to drive to routes where some other cause was actually the reason that a driver missed the dispatch truck at the end of the day as i said the bo mail didn't delay getting started on the boat and the fact is that mr fox was attempting to deliver two routes during the time that he had before coming back to meet the dispatch truck i think a simple example sort of brings home this particular aspect of the case up and if you assume that mr fox was in the habit of stopping at a coffee shop for three hours every day before he came back to the post office ok and then during the christmas season you repeatedly fails to get back in time to meet the dispatch truck now if mr fox blamed this on the increased volume of mail it should seem clear that that argument would not fly if he was continuing to stop for three hours at the coffee shop well here we're basically the same situation the fact is that he was delivering his second the second during the time that used to come to look at me on this route on contract eighty nine the contract  issue here the mail was to be delivered between eleven forty am and four thirty five pm about five hours and in fact the contract describes that at j eight one zero two as the minimum ho delivery time of three hours and both are dispatched truck was supposed to depart at five o'clock each day it's not surprising that the circumstance the performance problems result mr fox was attempting to believe or that it was ok now the fact that it may have flowed from the fact that he was attempting to drive two routes you know that that's not an excuse another world that's not a good test is not worth the board decided to go back to judge readers no he discussion with you about the expert on seven fourteen with the board says is that the polish not persuaded us that he actually carried more than forty cubic feet per root on those days in which he missed dispatch now a lot of the evidence is certainly true doesn't really pinpoint particular dates but it's this seven fourteen guns you have the reference to each day and does say reading it together special why isn't that at most and and that's contrary to the finding that the board made well the reason this is not contrary finding the board bait is if you look at the question carefully it says it talks about the  added that receipt and pegged and that would have you think and he added the words and character would you agree that that would have been contrary to the finding that the board made it if he had a actually sorted so he didn't actually deliver everything it was received and there are other places in the record that clearly show that he was not actually carrying not to actually attempting to deliver all the mail that was presented by the postal service the cases that this board where this court has held that and those cases those cases specific coming what your take on those cases my take on those cases is it's dealing with the specific facts of the case first of all and sept second of all that for instance there's one where the question was did the board consider as part of the douglas factors the disciplined employees alleged mental believe basically there was no question based on the record there that the issue that was being discussed really wasn't considered aap by by the decision making and so you know this court has presumption that the airport the decision maker considers all evidence that presented but it's only a presumption and if there is evidence presented that shows that that overcomes that assumption well then that would be a problem hugh has no remember in those two cases what it was that the court regarded as pushing to overcome the presumption i do not recall off the top of my head your honor and the court didn't it this was an early case and i think the law