assertion that violating an order to expunge and use prior unlawful discipline is standing alone in the very library yes you have any we did not work for well in this case i think what's important on that front is that one and the term nation came later on in the general they say that it's an eighty three right so we don't have to get into discriminatory and no i'm sorry i misunderstood your question i co yes rob you have the i'm sorry i haven't read roll call for a while i'm not sure it's crystal clear affirmation of the board's principle do you have an authority that the board is wrong that even though the board's prior order says you must expunged from your record all references to discipline that we have concluded was an unfair labor practice that violating that common sic it's crystal clear the board is right i think the board is wrong and i think it's crystal clear clear by eighty three of the national labor relations act or text how could how i mean we've we've had seventy years of cases  i would think standing alone i'm very labor practices not if you can't you if you can't if you don't have a case to the contrary fine we'll move on you i don't have a case to the contrary but what we're arguing in this case is that previous discipline in two thousand and thirteen relied on at all by the decision makers in twenty fifteen twenty sixty how can you have an eighty three violation without any motivation we affirmed the unfair labor practice declaration that the five thirteen discipline of product of an eye union animists and therefore violated a they want eighty three yes lords remedy was expunged that record that discipline from your is that you're here you're here was the last clear chance agreement and your determination notice both reference to the order that you were directed to expunge and never use again and that's the crux of this terms of the motivation that underlay the terminations and the suspension and the record shows clearly that just because there was a mention by these new decision makers of the previous discipline doesn't make that motivational or a part of the record because we have the opportunity to show otherwise there's a motivational component wire component yes every eighty three violation has to have it you have to discriminate how can you prove discrimination  discriminated how can you committed a violation of the act that would cause this terminations to discharge to the end of all there was was a mention of the previous disciplined by these decision makers which at that time had not been ordered by the board to be expunged and that mention which was not enough to to staff throw this case yes or time and then at the time of the last lear jets agreement we're talking about  the order you affirm yes the order came later as well part came later as well when when the decision makers looked at the situation here they didn't know that that  previous discipline was going to be expunged by the board from the record more importantly in this case common sense has got to take some control well mr mcneil after a management review of the facts surrounding the incident in your previous record for rule violations your behavior does not call for immediate discharge the board points out that he had to have looked at the two thousand and thirteen discipline in making this decision if he did then the what he would have done was terminated at this time she committed a very serious offense she was eating product off the line putting her hands back on a product that was just going to be packaged very unsanitary certainly food safety violations very dangerous and yet mr big deal didn't fire her for that he said we're going to give you a final warning a final warning plus a final morning equals destruction a final  that stage of this proceeding it also played no role in her terminations what she committed to get her terminated was also a serious offense for which this for which this charge was the appropriate remedy in the rules and so your honor our position is clear that there is not sufficient evidence in this record to support an eighty three violation in this situation not correct on one point the administrative law judge had issued his recommended decision which contained the finding the unfair labor practice and requiring the was the first one unlawfully motivated is that the violation and then when you look at the subsequent ones what the board case law in this area and cites approvingly it cites the dynamics case which sets forth this princip record evidence that when the company received that adverse lot decision by the administrative law judge that company counsel communicated that to the client but certainly in july of two thousand and fourteen the  read more carefully that order what didn't exist when shit when the subsequent discipline was imposed well no you're under the the board's decision in this case the board's decision that's in front of the court here  chance agreement which is clearly not true since since the basis of a second final clear warning would have resulted in terminations for the other guys i think i thought this was gulf well your honor i the i would point your honor to go back and to look at relic code and where this case admittedly is different than the ones we cite is that in all of those cases we essentially have all of the unfair labor practices end up being grouped here they are splitting time and just coincidentally we wind up with two separate cases but the principle still whole is that when you look at for instance will have good played no role in the discharge or the twenty fifteen last chance agreement and mcneil consulted with lead better for both lead better was the one who told mcneil and twenty fifteen she's already on a last chance agreement in at their time the company would have been on notice that the law judge had found the twenty thirteen conduct unlawful and so again to my point about the case law certainly there really is no prejudice to the company in any of those cases but cut because of a case where for instance and rel co where you have an initial discipline and then discipline to and discipline three at the very end in the company keeps building on it and citing back to discipline number one in those cases when you look at relic of for instance you do the right line analysis for that very first one and then when the employer keeps on relying on it the question then becomes for each  one first factually was it relied on and then you go to essentially what is the second step of right line to show was your affirmative defense that notwithstanding having relied on that first one you would have taken the same action and certainly in all of those cases as is here well i should say that certainly in those cases the employer could say well was me when i discharged bob with discipline number three i had no idea that discipline number one was going to be found on  here it's it's a little bit different and kind of better in the sense of at the time that they start reline on this twenty thirteen last chance agreement they already have a strike against on the administrative law judge had already found the twenty thirteen discipline and fire for the second final morning they get a laugh their chance to bring them presumably by presumably but i suspect because they knew the first one was was still under review for animals then fine well no you are then we would have had a a double whammy if you will because as the board points out and we point out in our brief not only has no one received a last it was a violation and that some discipline could have issued the question is for her type of discipline where we're looking at where the burden was on them to show the yes it would have been that by your interpretation of the law when you're o the board and it talks about in a foot no essentially reserves the issue as to whether each one of these could be approved under a right line with regards to the typical knowledge and a mess but it did look at that because at the time  honor can you put your finger exactly on why we're here today this is a grossly unfair unlawful determination in the sense that we had the right to appeal the decision it was under appeal at the time these decisions were made right mind doesn't apply because the first question about and right line is was the previous discipline right up it's very clear that it wasn't relied on or should have been discharged in october of two thousand and fifteen when you look at february  sixteen there can be no question that the offense she committed was even more egregious after having been told in a group setting not to harass not to do what mulder had done what she wanted to buy your argument that this is situation that to the bore that's potentially something that could happen in this case i think if you review the record as a whole and you look at it throughly fairly you never get to the even the possible sense that this was motivated at all by what happened in two thousand and thirteen the new decision makers in even know about what happened twenty thirteen it was simply looking at present behavior and when the board relies on records the only other thing they rely on is records for