in the possession of the union second the work on a violation in regard to mr wallace a separation agreement that general counsel not only didn't pursue but affirmatively disclaimed whether the board doesn't even attempt to third the board improperly drew an adverse inference in general counsel's favor to cure the general counsel's failure to establish supervisory status for captains course also address any questions of the panel may have regarding other claims or or issues poisoned by the unions destruction of the most probative evidence on the context issue those who wrote surreptitious audio recordings of interactions between management and employees and there's no dispute that the recordings exist or that they were given to the union response didn't show for the remainder of trial and produced nothing instead unions counsel claimed that although the union still had and i think this is important the union still had copies of the recordings it selected to provide to the board in support of its case as the court recognizes when the board doesn't do that it goes to the fairness of the decision making process as opposed the correctness of that decision so this is not an issue on which the board of the board is of deference if they fail to exercise evidentiary sanctions available to it and as this court recognized that page thirteen fourteen forty one of the u a w case and that is grounds for reversing the whether to the decision on whether to impose  correspondence union counsel even when asked specifically about ships testimony said i can't say what happened the other recordings there was no dispute knowing that the union was in possession of these recordings that he was not recordings that the union had and somehow lost so whether or not the union did that by bad faith or not it contaminated the proceedings because that evidence goes directly to the main reliance of the board which is this allegedly coercive context there are a number of violation anyway and generally they won principles despite the affirmative statement the general counsel was not pursuing that theory the board doesn't deny that were right on the merits and because it ignored the general counsel's disclaimer that it that it exceptions brief is not that the quote at page eight of our brief there's a quote that was taken from are exceptions brief to the n r v and the fact is a number count clinton agreed with our argument and said that he would have dismissed the claim and he thought it was improper to to treat it as anything other than a worker's bouncer work rule so the idea that the board didn't have a chance to address this issue is just false one of the board members actually agreed with us on the argument third that were improperly documents from which you produced three thousand all up preparing for trial but so are sanctions and general counsels identified only one responsive document that wasn't abuse that's a job description for four captains not evidence of two eleven authority to eleven authority has to be established by actual duties now i'm not saying it isn't relevant but it's certainly not controlling bigler dispositive and two for captains were subpoenaed were present ready to testify even if general counsel didn't want to cross examine them on their duties she certainly could have examined them in any documents that might reflect those other than a job description or she could have called other witnesses she did ask some of the hourly employee to start by reminding the court that there's a lot more going on to this case there are as i said over two dozen violations here ranging from course of statements interrogations surveillance unlawful discipline and discharge and we cannot ignore that al the there is there is no sanctions when the evidence is not in the possession of the party or doesn't exist and so that is the that is what the union counsel explains all the parties that these documents eight so with that response to the points that shamrock has made an appeal i would again point to our brief for all of the if this support of all of the other violations which are activity that is that is well established in those as the factors i have been adopted by other by other courts i'm not sure if the specific issue you're discussing has come up before and i don't really even see this is an twenty sixth team and had been handing out union flyers he was one of the only i believe in place it was flyers and those flyers had there was one in october there was one in december there was one in february so there was another twenty six case actually but i don't think it changes the gases at all because you still have the evidence of the inadequate investigation of the disparate dream that the way in which the employer investigating every possible two points in response to that one as it is your question make square think this is not the board after the fact saying these are things you should have looked at to do an investigation this was an issue that had well i would just i think rely more on going back to the do the investigation with just one last point if i may that this was not just some kind of random possibility that it may have been someone else that it move thing and what about angle and i was involved in more i believe it's five or six there are multiple coercive statements they were made there was a promise or granted benefits during the union organizing involved and who is too numerous d i thought the board's rule was that if the c e o or the president of the company or the point manager was directly involved and justifies requiring the c e o or the plant manager to read or or thank your honour's judge or enough if i may address the question that you had about mr mccollum because as counsel mentioned he was alleged to have been involved with two violations the second violation he was brief it doesn't matter that the the letter was facially neutral it doesn't matter that was never enforced in an unlawful manner and it doesn't matter and this is the most incredible point which i think this thing which is it from other cases the board says doesn't matter even if employees a critical critical distinction in regard to the spirit of your defense was each you're our defenses it's you but the but technically i think you could say this is really just a first amendment issue because it doesn't mention anything about labor relations back just to make sure that so wallace was discharged mr ross i got a seven week river and it was a very disciplined and by the time the complaint i believe that morning had already rolled out his record so there's no there's no lasting impact of on the issue of the stand or the board it has never specified how we would investigate whether skinner connectivity was lost we look or should say shamrock looked at mr ross a c m record he was standing every two to three minutes he confirmed after i know that that