colleague judge edelman who is visiting in arc yes it's a wonderful program we have in the circuit where district judges have an opportunity to sit with us and it's a great first the general counsel's elemental showing of the unfair labor practice was not proved according to the evidence of record and second that issue was not waived under section twenty of the act by anglo's failure to seek  rehearing turning to my first issue this case was tried by general counsel on a terminations theory but the board rejected that theory the ael j in this case had found an excel aerated layoff violation but both sides accepted that and the board rejected that as well what the board did was find an eight a one violation having to do with the transfer of work between  mexico the problem with this on this factual record is that i am below had a long pre strike history of transferring work between bentonville and warheads and there was no proof by general counsel that the rate of that work transfer increased after the strike or at a time correlating with the strike from which you could assume or infer the proof of an adverse action against an employee the basic burden the general counsel has to sustain in a case like this is to show that in adverse action affected employees now here there were twenty two employees who went on strike and were not recalled immediately and in fact not recalled at all and in terms of our review of the board order do we look at this through the lens of a highly deferential stand there you do but you still have to find the basic  prove the unfair labor violation in the first case your honor i'd liken this by analogy to a proof of lost profits in a civil damages case and in a case like that this court would classically except that the earnings of the business before the injury were at one level and afterward a different level and there would be a statistical showing that the level change in level was the amount of the damage now here there can be no adverse action except if the work rate of work transfer or before the strike which of course cannot be in retaliation for the strike was different and lower than the rate of work transfer after the strike was a letter the letter given to the twenty two employees said that they were not that based on part on the move to mexico is it your argument that the board was required to find that letter was a lie know that that letter may show motive and it may show that the nature of the work what some work was transferred my argument is that the board's the general counsel's basic burden is to quantify the amount of the work transfer and that is not a remedy evidence now obviously the general counsel has argued and they correct that they can bifurcate this type of a claim so that the basic unfair labor practice can be found in one proceeding but in fact in in force one proceeding the amount of make good damages the number of employees who haven't found additional jobs remedy evidence like that can be allocated to a second proceeding but there aren't and that's the shirt and case in which the united states supreme court said that  as a means of tailoring the remedy to suit the individual circumstances of each discriminatory discharge you can have bifurcation that's for sixty seven us at nine o two but that isn't what happened here it is the basic burden of general coun to show the amount of increase of the work transfer as in order to show how many employees if any were adversely affected there was a temporary work transfer that that letter refers to your honor why can't the amount be shown the compliance of part of the process because it isn't remedy evidence your honor it is evidence of the basic elemental unfair labor practice that has to be proved at the initial  proceeding one of the cases the general counsel cites the challenge cooke brother's case from ohio illustrates this that was a situation in which the employer added in force but proceeding tried to offer evidence that in fact the amount of work transfers were de minimus and the court rejected or the excuse me the board rejected that claiming that that issue had already been fully litigated in the initial proceeding it is our position that that issue the fact of the adverse action both its nature and extent has to be established in the initial proceeding in order for an unfair labor practice to be proved if there so let me ask you this are you saying that there is  substantial evidence to support the view that nobody would have been laid off exactly where the twenty two employees were there is no substantial evidence to support that view your honor and furthermore even if there was substantial evidence to show somebody got laid off excuse me somebody wasn't recalled the lay off theory was rejected by the board that in fact we don't know whether it's one five eight or all twenty two and that's their burden not ours now obviously there is under the right line line of cases a secondary affirmative defense available to employers that when there is an adverse action and in most like right line cases somebody has been fired or terminated so the adverse action is not in dispute other than this factual burd this factual record is different in a normal right line in case there is a secondary affirmative defense available the employer to argue that in fact the  adverse action would have occurred for legal reasons and not because of their their animosity or motive but what happened here is that the nature and extent of the adverse action was not proved in the first place and so the the the opportunity to provide that affirmative defense never arose it would the case frankly didn't get to that point can't you present that at the next step either well under the you know challenge cook well but if it wasn't decided by it's dillon elementary part of their burden beyond which they can't proceed to an enforcement hearing so are you saying that at least some of those twenty two employees would have been laid off exactly when they were not later well yes what i'm saying is that the record shows that the company was over staffed and they i don't know if they would have been laid off at that point but their that their jobs were not eliminated by any action that was in retaliation for the strike the company simply didn't bring them back because they didn't have enough work for them but the point is that what let me just go back to that f a situation where the board view the evidence differently than you do well the board certainly did view the evidence differently than we are but it isn't simply that situation your honor because it is general coun initial burden to establish that and quantify that for the board and footnote nineteen to the board's decision where they say they had sensually admit we do not have evidence in the record from which we can say how much work was transferred that is the key point in this case and that footnote nineteen and it is our contention that as a matter of law that evidence has to come in its general counsel's burden to offer it within the initial lay unfair labor practice hearing that cannot be part of compliance now this is this case is on a narrow factual record it will not have a great precedent because as i said most write line cases involve terminations which are not disputed but in a factual record like this it is their burden to show the number of employers who are adversely affected and then it's up to the employer as part of the affirmative defense to show that that adverse effect would have happened for legitimate reasons but we didn't even get to that point here if i can turn briefly to my second issue about whether section twenty of the act waves this argument i believe i suggested it does not for two reasons first the issue was clearly raised before the board if you look at the exceptions that anglo filed that we cited in our brief and you look at the statements of general counsel in which they claimed that they argued this work transfer issue before the board the issue was raised before the board now the precise burden of proof argument i'm making today was not raised before the board but if you look at local nine hundred seven twenty seven fred second eleven eighty four cited by this court in wayne transportation seven seventy six fed seven second seven forty five the precise issue doesn't have to be presented to the board as long as the board is aware that anglo was contesting the fact that work transfers had increased and that issue certainly was before the board but the second reason is that ted he does not prevent us from arguing to this court that there is a failure of proof that's a basic issue that's not wait would you like to say i would your honor thank you very right thank you  of the claim about the nature and extent burden so is the board outline in its brief tenney of the statute operates as a jurisdictional bar and it's typical in administrative proceedings that you have to give the administrative agency the right in the first instance to pass on your claims before you go into a judicial arena and ask for the court to rule on those and hear what you have it was sort of i think the problem arose because you had an administrative law judge who did the initial findings obviously and didn't make despite the allegations in the complaint didn't make a finding that we're all that we're all talking about today the actual transfer of work so the administrative law judge makes specific findings one of those of course was not however the transfer work then when there was the exceptions filed to the board the general counsel excepts to the administrative law judges failure to make a specific finding about the unlawful transfer of work and the board rules on that when the general counsel takes his exceptions the employer has the opportunity and effect itself of that opportunity in this case the employer had the opportunity to respond to the general counsel's exceptions it was clear that the general out the general counsel outlined what he believed was the unlawful transfer work and the only response you saw on those papers in the employee and we filed this as a supplemental appendix because it's not actually part of the record what you saw from the employer there was only an argument that went to was there an adverse action basically that's when they say there was a mini cule amount of work that was transferred that's attacking simply was there a transfer work the general counsel's claim and yes and the response from the employer was only no there wasn't it was minuscule that's effectively a minimus argument that there is no showing of an adverse action because we claim the employer was that there was only a minuscule amount of work to be fair that is an entirely different argument than what's before the court now which is the general counsel needed to show at the hearing this is what their argument is now in this is not what was before the board you would have seen a very different decision out of the board i think what they're claiming now is that the general counsel needed to show not only was there an adverse action which we say there was not because it was miniscule but on top of that the general counsel having shown a transfer work needed to also articulate in the liability phase so i know it's a very different snob analogous as opposing counsel just suggested to a civil proceeding because the board has two separate proceedings that's not the same as in the civil arena the board has a liability phase and a compliance phase so you have them now trying to say not only do the general counsel need to prove an adverse action a transfer of work which there is substantial of it in the evidence in the record to support that but the general counsel also needed in the liability phase to come forward and show exactly how many of the twenty two employees who were never recalled would have not suffered the adverse action had they not been gauged in the work stoppage absolutely a board disagrees with that but  if on the merits and certainly we disagree we disagree because there is a compliance proceeding but as an initial matter the board disagrees that they have preserved the claim in the first instance the board never had the opportunity to tell the employer in this case because and when they filed an answer to the general counsel's brief they never articulated this defense the judge the board never had the opportunity to say no sorry employer you are misunderstanding our bifurcated proceedings you need all we all the general counsel needs to do in the liability phase and now we can move into the merits that have articulated what the ten yard human is but what the board would have done is articulate has as its always done in right mind cases here's what the general counsel has to prove that a right line case the general counsel has the burden to show that an adverse action was motivated unlike was that taken rather because of an unlawful motivation motivation then because we very rarely have direct evidence although we do in this case the board has a line of cases that talks about listen in the absence of direct evidence here are some circumstantial things you can look for or look at to establish motive well you know we know in terms of the history of me that they had a history of moving work from findings by the board later shows that that wasn't in this instance historical practice notwithstanding the administrative law judge discredited and to be fair the administrative law judge was looking more at layoff  the situation in terms of layoffs because that's how he viewed the case he made very specific findings discrediting evidence of a plan for layoffs as it relates to this particular product at this particular time certainly there was evidence complier employer documents that showed that yes it does have a history of transfer in work but in terms of the specific work transfer a program that was in place or a plan that was in place there is no finding rejected the notion that the employer showed that it had a plan now that it was trying to invoke a past historical practice that and it's quite possible that in the future it was going to move  these production to mexico at some point but i think the borders rejecting the notion that it could rely on generalized transfers in the past to show that on september twentieth that the work of two thousand and eleven that the work stoppage had nothing to do with the employer's decision at that time to transfer that work at that time to mexico now the board found in your favor relying you partner like he's mentioned the suspicious timing of the work transfer but didn't the president come to town the day before the strike part to discuss future work transfers i think that was claimed at the hearing i believe the administrative law judge discredits that testimony i think there's a footnote in the administrative law judge decision discrediting that and then i just want to hit one thing on foot no nineteen i don't mock our view of footnote nineteen is typical inboard cases where you have three members that aren't necessarily disciplined aren't necessarily agreeing on the full it's like a concurring opinion right foot no nineteen so the only thing footnote nineteen is showing is that member johnson is accepting the notion that there was a transfer plan because if you read footnote one thousand member johnson is so again i don't are the only work that will be restored is that which was it slated to transfer to mexico implicit in that remember johnson's opinion there or his footnote there is that he accepted the notion that there was a transfer plan and i think that a fair reading of that then is that the board majority rejects that notion they do not say that they're that the only work that will be restored is that which was not slated for mexico that's what johnson said member johnson so inherent in that then is i think that acknowledgement of the board saying we do not believe you showed that you had a transfer plan johnson obviously i think in footnote nineteen articulate that he disagrees with that but the board majority opinion is that we don't buy that our water is any work that they can show in a compliance proceeding that was unlawfully transferred will be restored to the illinois facility and we move to the compliance issue because councils absolute that would be too late to raise these issues so i think i think what i'd like to think sure i think that the what's too late and if the court looks at challenge challenge cook brothers of ohio what's too late in the compliance proceeding is to say no we didn't so that's what the employer tried to do in challenge cook brothers of ohio in fact i think that case if the board if the court looks at it i think it's incredibly instruct on what's going to happen in the compliance proceeding in that case yet administrative law judge and a board approved upholding the administrative law judge station that there was an unlawful transfer of work from one facility to another you had an appeal to the six circuit six circuit upholds sort of where we are counsel rather and the employer try to work out compliance they try to figure out ok now that the end for labor practices established and there's no going back to say no we didn't do it so you can't come in the compliance proceeding and say no we didn't  work you can limit your liability to show we would have transferred ten jobs anyway or fifteen jobs or what it were but what you can't do and this is what the employer also tried to do and challenge book brothers of ohio was to say no we didn't transfer any work and they offered generalized refutations of the back pay specification and so that's what the employer here if this court and forces the board order the employer to be sure will not be permitted during compliance to say no we didn't transfer any work because of an unlawful material was the details will be were dollar of compliance of what was how much work was on lawfully transferred absolutely absolute and that is standard that's how the board operates with a liability phase and then a compliance phase so if fam will shows in compliance that six months after the strike it would have laid off eleven workers for lawful reasons how does it determine workers get reinstatement in full back pay it which ones only get back pay for six months that would be up to the compliance it's not a unionized shop so i don't know i'm not familiar with the practices that are present there in terms of you know oftentimes seniority is going to dictate who comes back when that would be up to the rate at the board general council and the employer to work out which ones come back i'm not like i said if it were unionized shop they'd be an easier question to answer but it's not unionized so i don't know  how they determine i suspect that it would be on the basis of entry on duty day but i couldn't say for sure so is your view that the board would have worked out the numbers of people transfer because they didn't raise it it's going to be malcolm wired i know the board the board wouldn't have addressed the numbers ever in the liability phase you may have seen i suppose more particulars in the decision in terms of you know you might have seen a decision that said the general counsel that the parties agreed that ten jobs were lost because of the work stoppage but you wouldn't you still wouldn't have to find a specific the board wouldn't have had to make a specific finding in that regard the board never  in the in the liability phase established numbers whether it could have been made a mention in the decision is a different matter but it's certainly even if they have raised it what you would have seen is the board addressing the argument to say no employer we don't have to quantify extent you're saying you don't have to deal with the extent absolutely not there is no case law that says that under right mind the general counsel's burden is to establish the nature and consent again the board case law is very clear the general has the burden to establish unlawful motivation and an adverse action and it's only under the unlawful motivation where we see the other elements that the parties are talking about in their briefs not a protected concert activity knowledge by the employer of that activity and towards that activity there is no cases and if you read their brief they're not they try to bootstrap this idea of nature and extent through a causation analysis but that's not what the right mind cases say that's not what border law says for laws very clear on what the general counsel's burden is and it's very clear that the exactly what they're trying to do and if you if the court looks at the chief cook challenge challenge cook brothers of ohio it's precisely in that case where the board there in the compliance proceeding references the unfit liability phase and says an unstuck five number of employees lost their jobs because of a transfer is exactly what we had here and after the board found a liability in that case of an unspecified number of employees just like we have here they moved into  i would assume somewhere around four minutes or so your honor i only want to make a few brief points when counsel was asked a moment ago what happens in the enforcement proceeding she said that at that point in the proceedings it's too late for example to say no we didn't transfer it increase work transfers in retaliation for the strike and i agree with her that would be too late at that point necessarily then the proof that yes you did increase work transfers in retaliation for the strike must be part of the initial liability proceeding that is initial liability evidence without which there is no unfair labor practice proved because the unfair labor practice has to interfere with employment with the roomies yes it can in one way your honor but that isn't what happened here the problem here is that there was no showing that work transfers were increased or that anybody was affected you can't at the nub of it they have to show at least that they have to show at least that the work transfers were it ten units before the strike and went to twelve after or went to fifteen after and that that correlates with five employees or ten the essence of the remedies evidence at a compliance proceeding is i've had those people found new jobs what are the make good payments to them what's the seniority in which they're reinstated how much work has to be read transferred back that's sort of thing but all that happened below here was that there was evidence of motive and evidence that some work transfers were going on but no evidence of any increase in the rate of those transfers and that's the critical fact that's missing so the fact that the president the plant manager admitted that the the move was motivated by the strike in the letter given to twenty two workers they were not being reinstated because of the moon and the fact that the board found it was the entire transfer which affected the twenty two workers were lawful and just the board didn't that proves motive and proves motive in spades but the board did not have evidence that twenty two workers were not reinstated because of the strike the board did not have evidence that the work transfers were increased by that amount that is the finding of the board that we are objecting to as being unsupported by substantial evidence and in a case like this where the entire matter turns on whether there is an increase in the rate of work transfers that affects employees adversely you've got to show the increase in the rate and that just wasn't done here now the only other point i'd like to make religion council seems to think that it's up to amarillo to refute that all they've got to show is the fact of some transfers and it's up to em go to refute the amount of the transfers no that's an attempt to shift their burden to us their burden is to show the nature of the adverse action