after argument in this case will briefly adjourn and then we'll hear argument in the motion calendar for this morning and then the regular day calendar i'm advised otherwise that everyone is here who should be here and so we will proceed to hear argument in won't i will rely on whatever is in my briefs to cover those points that are not covered the threshold issue for me in this case is one of jurisdiction and particularly the issues that involve the federal vacancies reform act and how that was  apply to this case there's no question here that the complaint against the respondents was filed when acting general counsel a solomon was serving in violation of the federal vacancies reform act the the ira there's also no question that the respondents timely raise the f b i areas jurisdictional defense and pursued it throughout the litigation from the very beginning when it answered and ought to be complained through the nd through the d c circuit and so forth the question here really is analyses their analysis i don't believe addresses my major point here which is the decision in southwest general the supreme court case in other cases doesn't go to whether or not it is applied to the end all or be general counsel whether or not the end of the area provisions are constitutional or whether or not they violate the appointments class and i've discussed that in the brief and in particular yesterday isn't the d c circuit decision more of the case for us because they are mandated to the and all are being made to determine whether the prior decision should be ratified so we would have to say that the prior decision of the d c circuit in this case was wrong but well what i think you need to focus on judge is not that of whether or not the rationale for revocation can stand constitutional muster but it is a law of the case for us and what the d c circuit did in this case well it remained going to be an hour be to determine whether there would be ratification in this case i don't believe so judge i believe you can revisit that decision i believe you can look at the constitutional aspect of this week ok problem we can do many things we can revisit the only only question is don't we start from the proposition that what the d c circuit it is more of the case for us at least with respect to those issues it decided it did not look at the issue of whether the f b i was constitutional it simply remained in there to see whether or not the n l r b general the issue that i'm trying to get to here which is whether or not it's different the issue and those cases didn't involve a challenge to the constitutionality of the provisions of the f e m a as it applies to officers princip constitutionally or otherwise but it was subsequently ratified by the new general council and then the action that was taken by the new general counsel would would be the operative act right and then and so the so that's the only that is what has been held by news organizations that exactly you may be wasting your time here but anyway i'll let you you can you can decide that you want to spend your well i well i do want to make the point that the issue is whether or not general counsel griffins ra was based on a lawful basis and that's what gets the constitutional issue and so i would argue that if you look at the cases and you look particularly at justice thomas concurrence which i understand is not precedent is just i believe persuasive though it gets to the issue of the constitutional nature of whether or not he could have life solomon could have been appointed even during his regular term without the advice and consent of the senate and because he was federal vacancies reform act is a waiver argument and that was presented to general counsel on our position statement which appears at the appendix in pages thirty eight dollars thirty nine cents and it was interesting because the position statement is actually rendered after general counsel rendered a decision even though our time to submit a position statement had lapsed yet and that's that's chronology is gone through in the briefs but specifically i rely on the th circuit's case in the hooks the kids  and i submit to you the same happened in this case with respect to our case it is on all fours on this issue with the hookes case out of the th circuit and so i would say that we had raised all along the issue  counsel did never raises an issue revocation in a timely fashion the ability to rely on this exemptions clause in the f b i and that being the case you can't do so now and if you take that basis of ratification away which i believe you have do then the whole ratification goes away and the petition in force must be denied and then you also argue that the ratification in this case was not true ratification because you didn't get an opportunity to make all of your arguments that you want to make particularly latches right i have made that argument as well your honor and that goes to the chronology of that advance because even after we submitted our position statement there was no revisitation by general counsel that i ever saw to consider that issue the only thing that the original ratification which was done for the day before trying to submit a response never changed and they just proceeded forward but  board did consider your argument of watches they have a footnote that rejected and i believe that is true your honor and there is nothing in your briefs to us at least as i remember them arguing that  there really is a sufficient latches argument in the case i mean we couldn't read your briefs and conclude you're right on the issue of watches this is something that really the board should have considered with more consideration than the footnote that they gave i would submit that they should have but i understand and don't disagree with what you said you did your honor ok all right thank you ok i will say however that based on the briefing and in this case it should be fairly clear that the companies are relying largely on discredited testimony and ignoring the documentary evidence the record in arguing against the merits allows the general counsel of the national labor relations board to ratify the actions of a predecessor who served in violation of federal here jennifer general counsel griffin acted entirely consistent with the permission given to him under the sclera terms of fabric and he also acted consistent with the general law governing ratifications when he conducted an independent evaluation of the merits of this case and determined to ratify the actions of of his ratification explaining exactly what he did and that he had decided to ratify the complaint and its continued prosecution what the companies are essentially doing today are sort of two things there let me just follow up for a nd do you think it would have been better practice maybe to issue a more full explanation that give substance to the independence of his later review your honor i i can't say it would be better but i can say that there is nothing irregular about using the same language to describe what was done to to consider a case and ratify complaint he's the same language across different cases but there's a presumption of regularity that applies in this situation is presumed that he did what he said he did and absent clear evidence of an irregularity there's no basis to throw aside his representations and call them into no no not at this point but i will say the d c circuit in midwest terminals which is the case that the board raised to the courts attention in a twenty eight dollars a letter that case involves a ratification at the same procedural point in time as the ratification in this case it was on remand from the d c circuit that the general counsel also ratified the complaint in that case and in midwest terminals the d c circuit upheld the ratification c circuit has said in the wilkes barre case it can remedy a defect arising from the decision of an improperly appointed appear official when a properly of point of official undertakes an independent evaluation of the merits and that is precisely what happened in this case in asking the court to look at the so called appointments clause the the companies are essentially saying that ratification should not have been an option but in terms of the current state of the law it is an option and the d c circuit remanded this case to the board with the understanding that federal expressly allows for ratification as one option for the general council where you have a federal violation like this and so for the companies to ask the court now to consider the appointments clause argument they're making essentially what would have the court undo what the d c circuit has done in this case and to go back to zero and consider the actions of an earlier general counsel that have already been essentially rehabilitated through ratification the board does not believe that there's any of the d c circuit is decision it's the law  case so i would say as a matter of comedy between courts that it's a subtle principle that it should the d c circuits decision should be respected absent some evidence of clear error that was clearly erroneous or some manifest prejudice is present and the company has an attempted to make either of those showings in this case so there's really no basis for the court to set aside what the d c circuit did in terms of the merits i'll just go quickly to the merits of the unfair labor practices the companies before the court in this case the board found they are a single employer and alter egos which means that they are substantially identical in terms of their ownership management operations labor policy there are several factors that the board take it took into account the companies essentially cannot on this record seriously dispute their identity  that that year for a timely terminations of the nd letter terminated everything well that the problem for the company is there are two letters of assent and there's no in addition i will say these are not the companies are relying on this idea that these are identical agreements but they are not identical in one critical right the effective dates are different which is critical because then that also affects that period and that was allowed to terminate and i would say that the court really under section tenney of the act is is foreclosed from considering any such claim because the companies didn't raise that can that kind of contractual argument before the board and under section twenty of the act any any claim that is urged before the court must st be urged before the board in order for the court to have jurisdiction of the argument so i would say that that's that's foreclo d as as the the court appreciates this this st letter of a cent was never properly terminated and because the companies are one in the same in terms of their contractual liability and their liability for unfair labor practices all three companies are bound by that st letter of assent and the effect of that st letter was to find the signatories to a master collective bargaining agreement between the national electrical contractors association and the union and that agreement automatically revenues from time to time the companies had a window of opportunity to terminate their to withdraw essentially from this arrangement they didn't take advantage of that opportunity which was on february st two thousand and twelve so they missed their window to terminate the letter of assent they also missed their window to withdraw from the arrangement at a later stage in our review is for substantial evidence right exactly and there is certainly substantial evidence and it's largely documentary evidence in this case documentary evidence uncredited testimony that shows that the compan it their contractual obligations there really isn't a dispute that they did that it's more a question of whether all three companies were in fact obligated which they were and there's also i section eighty three dollars finding that the companies discharged an employee in the wake of this decision to repudiate the relationship with the union they discharged a member of the bargaining unit who was a union a union member because of his union membership which is again a clear violation of the act so the board would request full enforcement of its order thank you thank you briefly when talking about the ratification issue they said there was no irregularities there is a glaring irregularity the red acacia notice was given before my client had a chance to submit his position statement that any of itself is a glaring irregularity said was they're trying to have it both ways they're trying to bifurcate the legal consequences when they're legal theory they're trying to say you're bound because you're single employer alter ego find to rope in that st letter of assent but then they're saying you can't also enjoy the benefits of the status to two when you terminate the nd letter of assent to terminate all the relations of chips with the union and judge that's the issue we've taken issue with and i think that has been argued in brief thank you for your time your hon much has a very it was a pleasure thank you thank you have you here well argued will take the matter under advisement and we will take a very