representing mats to the restaurant employee were the record is insufficient on the issue of the health concern the protected activity w challenging a thirty six hour shift they there's just not enough evidence in the record regarding their so called health issues do you have that he had the testimony of the employers who said they didn't want to jank continuously continuously working thirty six hours continuously working thirty six hours the next breaks had meal breaks and they had some rest breaks but they couldn't go home and then it became well and then it became the one dollar to six am shift that was the problem but that wasn't what they started with what they started with was continued was the thirty six hours we can't works continuously but thirty six hours whether with breaks or not then that one too because i want to know where the money is well i want to i want to when i went on cross examination the st employee doing when he was asked did you ever complain about this before they he said and i quote well it was because in the past we got in these big orders since we had a deposit made place that a company in the bronx promised us that they would it would give us some reward from the restaurant's profits and because of that we would still work even though we were very tired so they betray their own position that was that this was a health issue there's no case i can find a case where you just say i have a health problem and then without elaborating any more than that rule that employees may decide to leave work and certainly whenever they decide whenever whenever they decide there is something undesirable about working on a particular day he rejected that you may want to check are you challenging the a findings here i'm fine you make credibility findings except it's about the money into the employees are you are you challenging his findings and his credibility findings i'm challenging the the substantial that there was that was not substantial evidence on the protected activity a lawsuit and imo tie why wasn't the testimony of the two employees substantial evidence because i don't think we're talking together they've decided to do this together why is that credible for them to say it's not healthy for us to be working all these hours continuously all night long and since we don't the dining room floor well that's different that's different that's felt well because it's thirty six hours that's the problem continuously working for thirty six hours or is if they want to six am sure why couldn't they why couldn't they work the one to six am chip which was critical and the reason it was critical for these employees to work until that day and then take off from ten to six they did it before they did it for years before it was only one in that when they signed they got tired of doing it because it wasn't good for their health now because with all due respect your honor if it's in that passage that i just r these workers to merely say we had a health concern and that there they are with the a want protection now it's different than the other cases where ok if they climb up over you know there's a dangerous ladder they have to climb home not all the sudden and then coinciding with the fact that they that with the payment issue which they disclosed themselves which they disclosed that's why they went to the blushing labor center washing workers center just coinciding with that that all the sudden in september it was  problem is that the i don't know if that was a coincidence and and remember enough to pay to play is seems a little odd to me from the get go so i know because they were shareholders but i know that's not an issue here but remember and marched in as well you said they wanted out the dale j myth mistakenly took the subjective perception of the workers wholesale their discomfort in working conditions why i must you go it's such great lengths to look at to differentiate between what they claim the heavy rain and determining that that it was drizzle why can't there be any back here to why can't you go through that an accept except they're pretty except this is protected activity merely when they just that blurted out no concern mr john are responsible for buying the restaurant groceries in queens before being transported to the restaurant in connecticut which they generally did around in addition to those hours whenever the company received a catering order mr orders during overnight shifts scheduled between the normal sense all of us having the effect the workers left home in queens early in the morning one day works to some extent continuously well as your owners  with certain breaks not returning home until the following day hopefully by midnight the workers did do this for about fifteen years without complaints nearly fifteen years until they both got sick following an overnight know in september after having that experience the workers conferred with one another and decided you know we've been able to do this but it's been too long it's a problem and it's taking a toll on our health at this point the next time that we're asked to work an over night shift we want to how do you respond to the suggestion that it really wasn't a health concern it was more about being all to money sure well the employees actually give testimony on this which mr frank points out and they admitted that ye they were frustrated by the fact that they had been required to pay some money to their bosses as a condition of employment and that they hadn't gotten that money back i mean the frustration is understandable but the fact is that they had this experience getting sick after freund that in part it was based on their concerns about their health and we have all the data if you will working you know it's back to where it was also concerned about a concern or a protest over not being repaid money that when they learned of the the overnight shifts a week before the ship was to be worked they informed almost as soon as they were alerted to the catering order they inform management that no we're not doing it wasn't this was not you know question whether this was aimed at some sort of you know whether the employees actions actually aimed at affecting terms and conditions of employment there reference to the marston case which they seem to be growing strongly here an argument is shown to be flawed right on this issue martin was that the employees there were taking action that was not directed towards participating in  reason that they're not going to be working this overnight so marzan really is not problematic notably the companies abandoned its original defense that it broke for the board which was that these employees were not afforded all voluntarily quit that's the record that the company developed in the arguments that the company developed before the board the board rejected it finding that these employees told to stay home and rest and don't come back to work if your health was affecting you when the employees repeatedly followed up and asked the company when can we come back to work they were not going to back on these facts the company found this is a discharge for good reason the company's abandon i mean what happens what happens now sure good question i don't know whether the restaurant is operational or not i've heard three through their attorneys and they close in around november and you know it's like the attorneys of the word and next there will be a compliance proceeding you know should should this court enforce the order as during which the board to find the exact contours of what compliance with the court's order would would look like this is  an honest element there's now a judgment for some two hundred thousand dollars in connecticut district court against the one of the owners and a lien on his house so they're covered at least with  months the the last time was september and then it was december so that's an important fact and i also want to point out the other employee jay said when he was trying to bargain back so that he could work normal working hours and kind of have it both ways and just not work once at six am because he knew that's where it would really hurt them he said and i told her that we only had minor issues with our bodies we cannot work on a thirty six hour shift shift which also wise to this case i'm not trying to hold up an investment dispute with competing with their health concern the problem is their health concern is completely the record is completely barren and i just don't see how  you can you can except that just without even them describing how they were sick what it was you know it just doesn't square with what you stated in marston which i said so flesh out that a little bit for me please what what should have been there in order to satisfy what you say was their burden to prove that they had help from ok well exactly like pooler stated how about describing how they get sick what the problem is with their overtime working the late night shift or how about just sticking with the overnight vs the long term long hours versus  the one to six am shift or how about seeking a doctor none of that in the record completely devoid in the record so all you have left is well these other you have they're just uttering the word we have a health issue and then you have these sprinklings of inconsistency regarding it where they betray what really is going on here so what should we do with this remained and have them read the board remanded to the a l j for further fact finding out what their health concerns were i think that would be appropriate under two to flesh out what the health concerns if there is and if they go if they're able to establish it on the record at least you wouldn't have a one case sticking out there from the from the us court of appeals where you really just need to say i have a health concern and your you're off the hook and well yeah protections but there is certainly to my mind at least information that in the record sorry testimony the backstop why it would be logical to conclude that there was a help conserve i mean the hours that were kept sleeping on the dining room floor i mean i slept on floors you probably slept on floors but it's you know to do this is a part of an employment arrangement this is not every day this was the last time this occurred was i know it's not every day but should should any worker have to record at all so that's all the sudden it's a safety concern i can understand it but the safety concern if you're like one of the cases you've got to climb up this or washington who knows washington i want to annul our paper she's washington aluminum where it's the coldest day of the year in baltimore you can't get into any of that about what about handling sharp knife when you're exhausted i would bet that a bike that might get it by did a search of the record there's nothing there's nothing about sharp kni in the in the record and that would be great that that would be great if they if they elicited that but could not have usual notice of the fact that sure knives are used in the preparation of food not in this case because you know why they weren't