addington i wanted to start with the issue that the court raised in its order on friday evening whether this dispute presents a live case or controversy within the meaning of article three of the u s that that decision and we do believe that mr mcnary has standing in this case that he has suffered an injury in fact that would be the threats made against him and that his so typically the secretary of labor or have files a case on behalf of a minor and if the a l j rules that the law was violated then there is a civil penalty attached that's actually assess  before the case goes to trial and the judge has to consider various factors gravity negligence etc in assessing a so penalty under a c three case as mr mcnary has if we were to prevail in front of the a l j then that case would be referred to the secretary of labor for an assessment of a civil penalty we can't assess the civil penalty it has to be the g is working there see me still member jim you know he was laid off at that point he was laid off and i believe it was two thousand and sixteen because this the shoe was not raised below either before the a l j or the commission well there's a difference judge between a plant being open and whether it's in production yes the map is producing alumina which creates the very risky seat i don't believe it was put on i don't believe it was i think it was a maintenance crew comprised of management some hourly workers and some contractors and there still would have been miners for ups there are still would be dangerous  not judge i believe from what we learned from our client this weekend that the plant was actually shuttered now and that there are is not a maintenance crew at the plant now and it's really produce that you're aware of i believe it is that's correct so a maintenance crew would be to mr bacon cry answer this better than i but to make sure that everything was  working order in case it was brought back into production to make sure there weren't safety hazards present for those who were there i'm not sure what the contractors would be doing and the hourly employees if they were all maintenance it's a rather large plant you can sort of get an idea from the photos or in the record like how big of alf's are how big the pumps are nest of the mine are part of the order which would ask that more order to stop threatening minors raps you raise safety issues with management and again those are remedies that are regularly ordered by a so those are the remedies we see and the find the training posting to cease and desist and one of the things i'd like to point out your honor is that in one hundred and five c cases involving minors wraps unless the minor rap has been discharged they typically do not involve claims for monetary relief and the remedies that mr mcnary is seeking before this court on this appeal are the same as the remedies that he was seeking on the day of the trial back in august two thousand and seventeen we believe that it's very important to protect representative of minors from discrimination or interference congress striated that position to ensure that minors play a role in their own health and safety at the mine and congress also specifically stated in the legislative history of the act that section one  minors and minor scraps against the even subtle forms of discrimination such as threats of reprisal so d it was recognized by congress from the beginning that you would have cases where there is no monetary relief the mind act is a make whole remedy or one of the five c is a make whole remedy the most a minor can get if he's been fired here she's been fired as reinstatement of their job with there is no a genitive damages there is no damages for emotional distress it's a sum a whole remedy and typically in cases involving minors route representatives there will be no monetary relief so our request really hasn't changed judge i'll when we read the el paso case it cited the supreme court case of lou hawn versus defenders of wildlife and in that case justice scalia said that there are three elements necessary to confer constitutional standing and that is injury in fact the same thing that el paso says which he said is a violation of the legally protected interests which is concrete and particular other words it's not speculative and it's not hypothetical number two is a causal connection between the injury and the conduct complained of which we have here we have a threat that's the entry and number three it must be likely as opposed to speculative that the injury will be addressed by a favorable decision and we believe under luong we also have all three elements necessary for a constitutional standing and we believe that under el paso we have the same we've met the requirements particularly that it's not speculative we're not saying something could happen down the road we're saying mr mcnair he was threatened  threatened three times and that is a concrete entry and we believe it is redress a lie by the court failing to provide safe access and although mcnairy had complained to mr m a about sending workers into that area or at the least allowing them to go into that area the judge found that that wasn't protected activity which really turns case law want to live on its head over the years and the nd citation was that mr was at alcoa failing to properly train the miners in the event that the pump out fail so the judge found that these side patients were not material that they were immaterial to the case as if he was viewing them in a in a vacuum where empty here you have neutral arbiters the inspectors go into the mine to protect the health and safety of miners they essentially agreed with mr mcnary from plaints to mr abney that you're acting recklessly in sending these miners into a dangerous area and the judge also found it irrelevant and his analysis that  miners had been burned at this plant before the same thing that mr mcnary was complaining about that day he had been burned by that same slurry a couple of years before and it was burned over thirty percent of his body  spent time in a burn center a month and he was off of work for about a year but even closer to the incident just four months before the incident in question back in september of two thousand and thirteen another you had a guy i was just seriously burned a few months ago and he pointed to the miners wearing the the tie cam susan said those are the guys you should be concerned about not not producing more alumin i'm sorry lost my train of thought here well the court found that mister mcnary had not been threatened because he was a minor threat or in his status as a minor threat that he had been threatened statuses them away however when mr abney was asked about that on cross examination he could not identify a single thing that mr mary had done or any conduct the unengaged or supposedly d was insubordinate other than the fact that mr mcnary supposedly told him there will be a group of people coming to assess the situation stroke does not have to listen to a supervisors of valuation of a danger and that goes back to the the v c circuits decision in the phillips case which was one of the seminal cases under one  where the court said it's clear beyond peradventure that a minor does not have to accept a performance about you ation of a safety danger that's the whole purpose of the miners for the m mcnary was representing other miners with the plant he's supposed to raise issues having to do with safety and health with supervisors also has the right to travel with that option inspectors so when when he tells mr emmett that you should've sent the miners and to that situation and i've called the health and safety manager she should be on her way to help assess the situation that's when it and when miss broadus the health and safety manager came to this to the site then mr mcnary was not involved in conversations with her he was standing to the side by that point but he ate our belief is that he has that right to say you should have sent workers into this area he has the right to to call a supervisor to condit help with the situation to help protect those miners and another critical point is that mr emmy and measured in his testimony that he knew mr mcnary was concerned for the safety of the miners he wasn't questioning that  the court or also the l j also found and we believe this violates the case law under one of five see that because mr mcnary did not invoke this quote unquote stop drop policy but that stripped him of the protection of one of five c and the stop job policy was supposedly any miner act the site had the unfettered right to shut down the operation of if they thought something was unsafe and there was testimony about that the trial and curiously the judge found that because mr mcnary just complained about the hazardous conditions but  a stop job policy that somehow he loses the protection of the act almost as if the judge was questioning his good faith although he didn't come right out and say that and  the interesting thing about that stop job policy though is there was testimony that after mr mcnary and mr emmett had their argument mr right mary was standing to the side at that point the risk conversation between mr m a delgado who was the lead miners rep at the mine kelly grown as the health and safety manager who had showed up and bret barrett the actions factor in the four of them were discussing and mr basically said what mr mcnary it said you're not sending anybody else back into that dangerous area now according to the judge mr supposedly m respectful of delgado's opinion and it didn't get heated but that contradicts carlos delgado is testimony he said it got heated mr make mr emmett didn't like to be contradicted he was the boss and he wanted to run the show and send people in there i'm not shutting down the plant now whether or not there is issues you know involving safety about shutting down the plant it is sort of beside the point mr delgado was saying you're not going to send anybody in there i e you're going to shut down the plant and that was rejected by mr emmett out of hand but nonetheless the judge found because mr mcnary did not try to shut down the plant that he lo protection one of five city all right some of these are our arguments as to why abuse of discretion are clear air correct correct right so why don't we hear counsel for  case was tried in two thousand and seventeen i think it was in a very different posture because the alcoa plant had temporarily closed down but at the time i think there was an expectation or hope that at some point you know the price of bauxite would be such where they could start up again and that would probably i think at that point it was probably even of the tensional for mr mcnary himself to be recalled under his union contract  case if they were still in that posture of the possibility of reopening i think it certainly made sense to say you know in some point there could be a remedy for mr mcnair in december of two thousand and nineteen case would be sent back at this point i don't believe that would have the jurisdiction to come in for example in the post a notice in this and if anybody was going to be training anybody anybody was going to scream that you know doing any safety work it would be ocean so i i don't think that today there really is a age or there is a question as to whether this court really would have jurisdiction over this case i'm not sure that was the case back in two thousand and three does it apply to agencies is  it's still open now but my understanding is that they're trying to sell a plan so there are some people there but the plan is closed it's producing the plant has not been producing since two thousand and sixteen manager who's overseeing the plant this point  was not was violating safety rules and how he handled the situation and put minors because and then he comes in and whatever led to the statement that you are not going to do what you say is a minor in the heat of a safety crisis because that person raised safety concerns in gage and protected activity and said you can't you can't tell me not to do that to tell me what to do as a minor we're going to have the heat of the moment exceptionally well and i think i think what you have to do in have particular case is is evaluate oh and this is a place what happened immediately or what happened immediately afterwards i mean you know every workplace mines and and the other type workplace people sometimes lose their cool people sometimes say something inappropriate and so the question becomes you know does this have an injury an effect on the people that are that you know this was a company which actually the safety manager plan and i'm sure was very they were all very accessible to the miners reps the miners reps frequently engaged in very robust discussions you know over safety issues with theory the whole theory was that mr britt neary had done it and was trying to bring people into consultant brown's so part of part of mr mint nearest problem was that the judge actually did not believe he was nd he never was fire he was never even you never even left the area  right anything further no does the court want us to submit an affidavit from a plant manager regarding clos in our brief our national briefs on page sixteen footnote sixteen we said that we cited the case of secretary of labor on behalf of done by ernesto versus northern coal company were th commission said that the key to evaluating communication issues between management and miners was what the plain meaning of the words would convey to any reasonable miner i should have cited another case there if the if the court would allow thousand and five case and in that case the commission said that when there is communication if there's a threat from a supervisor to a minor the issue is not what the supervisor intended but how it was perceived by the minor that's what the court has to look at the final point i wanted to make going to the issue of outstanding is that  and the rd point was going back to the standing issue hosting might be difficult at this point because if the plant is shut down but we do believe that posting dollars and i believe the number was one hundred and thirty two associated companies in their corporate family and we believe that a cease and desist order and a trainee warner could go to management of al not just people at this plant also mr m it could be ordered to undergo management training i don't know and mr bacon may whether or not he is still employed by alcoa world alumina the point i'm making is that alcoa world alumina still exists even if the plant five point comfort plan or mr mcnary work to shut down why we will take the case under advisement thank you very much