every case that i have looked at has indicated that the task that this court must apply in deciding this appeal is did the board correctly apply the law and was the factual finding supported by substantial evidence on the record as a whole certainly substantial evidence cannot be based on suspicion surmise or implication with regard to the improper failure to consider for hire i'd like to focus on the general counsel's obligation to demonstrate communion atomised was the motivating factor in refusing to hire or refusing to consider for hire here we have argued that it is improperly or that the that the board improperly inferred anti union animus and shifted the burden of proof to the petitioner this court in carleton college versus n l r b recognized that under substantial evidence standard of review the course but must take into account the evidence inference so the question then becomes all what is the evidence the evidence and whether or not it detracted or enhanced that finding the evidence is the company and specifically mr johnson who was a known union organizer to team up together in february of two thousand and eleven that's at the judge's decision and page three of footnote three the company had placed a union that particular client the company actually put on the resumes on its letterhead and that's significant because most many of the resumes indicated union affiliation for example mr  resume indicated that he had affiliation with a particular local an issue in this case which was local twenty two that's the joint appendix at seven ninety two the company has placed union members and affiliates and organizers or attempted to on several occasions we have argued that eighteen of thirty seven people or forty nine percent were placed had indicated or we believed they were to be union supporters now the board found isn't there th difference between a member of the union and someone who supports the union and these five employees who i believe there was some evidence that they clearly said they wanted to organize maritime i'm sorry i missed the last part the clearly they said that they wanted to organize and actually the board actually makes that distinction because the they're actually the board actually indicates they didn't even if circumstance and it's in it's  even if we assume that air take did place people thought were union affiliated it actually said no temp to place any employee who indicated they were a voluntary union organizer so that was the distinction that was being made however if we actually look at the record that just simply isn't the case that's not six that not it's not supported by the substantial evidence the a l j i'm self founded and or stock was placed after he had demonstrated union organizing sympathies anderson brother in in december of two thousand and eleven after he indicated himself as a union member and stock testified openly that he supported you union organizing efforts while on the job at the company in august and was subsequently offered a position so that's the evidence as relates to that additionally the company tried to hire dave irwin in august after mr johnson identified him as a union organizer and he was specifically on eight eighty one to actually pull that page there's a letter dated february the ninth that was actually delivered to eric tech based on the record a month later i don't know whether it was dated wrong but what march the ninth specifically indicates dave irwin as part of the organizing committee he was contacted subsequent to that in an effort to be placed so finally mr henderson was called didn't get that phone call it's interesting to note that the phone call that we did place was recorded but his callback was not but regardless of that we certainly e mailed them as well and certainly he did not e mail back come firstly what's the evidence on the other side there is no evidence that management stated it did not want to hire union members or that it terminated union members in fact all the evidence is is to the contrary there is no direct evidence of animists and in fact there is direct evidence negating animist and specialist actually goes through an analysis on that and talks about the importance of that this court recognizes general honesty is not enough and says well we can look to pretext or disparate treatment as evidence of that and so ok well we do that let's take a look at mr johnson's resume that's a j sixty five mr johnson's resume kidded but he was currently employed at forty four dollars an hour he earned more than thirty dollars an hour for sixteen years he earned thirty seven dollars in the past eleven years his average over the past fifteen was almost forty wasn't there also evidence that he would take anything including an apprentice job yes but but the question the question is using between evidence and we pretty much have to defer to the to the bo a nine fifty nine particularly say well we don't want to hire overqualified people we don't want to hire people even if you see the qualifications is different than the amount of money that they want because overqualified people say they're go analysis between pretax and this disparate treatment you look at mr johnson and say well you heart other people having that same circumstance well actually if you look at those other people that are cited mr north they say was making thirty actually there was four individuals mr north at j f k six eighty four his application says he wanted twenty three he was paid twenty three dollars an hour and his last job was twenty three dollars an hour mr tata was also one of the people that was being compared he actually wanted twelve fifty an hour and was placed at thirteen and his last job was ten fifty mr darnell they said well he was making twenty three a newspaper and he was paid sixteen well if you actually look at the application he wanted sixteen to eighteen was paid sixteen and he hadn't worked in a year so circumstances were like well is he likely going to stay around because he doesn't have a job probably charles christma was was the fourth he actually not was standing there that the general counsel argues that he wanted twenty and looking at his resume a j a seven one four he had no desired salary listed at all and the last listed salary was eighteen not twenty and he was hired at sixteen so i don't think that that if you actually look at the substantial evidence and look at the comparison and actually look at the record that it bears out that circumstance i'd like to  authority and is holy and supported by the record this case this court in g s acts as that we you let me ask you did you object to the board's use of the unfit for service standard yes actually we did object to the unfit for service standards and specifically initially the board accepted an air temp responded that johnson conduct was melman say in the conduct was inconsistent with the duty of loyalty and he was not fit for cert for further service regardless of what test is applied and this court certainly has jurisdiction to review the board's analysis on that that's at the supplemental appendix at forty five and the supplemental appendix seventy in seventy three but i can say did you argue in your briefs that we should use a different standard well this standard i don't know that it's a different standard because in looking at all of the case law that i have would be my next question which the i don't know that it is i think whether you call it unfit for service tasks or whether you call it a contractual interference test or you call it a business competition test or whether you call it no matter what you call it every single case that i've seen in the hawaii case is different because hawaii the white case deals with words deals with the rocket or statements deals with the motion these cases every single case i've seen indicates that if there is a threat to the efficiency of the plant obviously we'll have a plant necessarily here but if we have the threat to the effectiveness or the continuing operation of a business then interference with that interference with contracts and interference with business relation necessarily is that i think as a matter of law and therefore it doesn't make a difference whether you look to the north american dismantling case or the rex printing case or the marshall maintenance case all of those cases and every case i've seen that deals with interference of contractual relations or interference with business relations or theft of intellectual property or trying to obtain the internal pricing structures of our client all of that specifically is manifest improper and as marshall maintenance has said and as rex printing has said it is manifestly improper to require respondent to employ anyone whose loyalty and efforts as an employee might be affected by attempting to interfere and cut out the middleman that's at the joint appendix eleven twenty seven to thirty one which is the outline if if you will that mr johnson prepared and it's a fairly good outline but he put that into evidence his own hotline notes that he wants to cut out the middle board will assume for the purposes of this case that in fact he had a duty of loyalty and he breached that thus johnson's conduct in approaching urtext point interstates constitutes willful and direct interference with their tax contractual business relations and he went and said well the whites have been you have poor news coverage and he said it in a blog and i think he said it in a public in a in a public meeting but there was no evidence of a fish and sea of the plant where the ability of the company to survive and to continue and the hawaii case specifically recognizes that natural human reactions may may come up and people may sometimes say things but i would submit that interference with contract and business and stealing trade secrets and intellectual property or the attempts to do so has been and necessarily is the type of conduct where the trade secret society to attempt to tame well the trade secrets or the internal pricing structure companies and how did he attempt to obtain that well that was based on a that was based on recordings that were made i think it was a hooters or some establishment  when the he had sent union employees out to tape recording question who are employees and those are the types of questions that were being ass so does it make a difference that alleged bad acts occurred after the purported refusal to hire on a discriminatory well i think that it makes a difference because that's what the hawaii standard says i don't think it makes a difference at all when we are dealing with interference with contracts or relations and interference with business relations and in fact the marshall maintenance corporation case which we cited to an in our reply brief actually involve the same thing involved a circumstance after that this charge of discriminate these immediately formed a company to compete directly against their former employer and given the circuit and the board held that would be manifestly improper to require respondents to  spoke about that the thing that i think is also important for the court to understand was the general counsel came up with this plan a and plan b in their brief they said ok he wasn't succeeding won't play in organizing so mr heller morning please the court joel heller for the national labor relations board the protections of the national labor relations act extend to job applicants who expressed an intent to organize the workplace if they are hired in this case substantial evidence supports the board's finding that eric tech refused to hire for applicants because they indicated on their resumes that they were going to organize the workplace if they were hired and the board factual findings supporting that violation fit within the well established framework for fusil to hire cases the board found based on evidence in the record that the four applicants were all genuinely interested in getting a job with eric tech they were all qualified for the positions the electrician positions the wage rate we heard before about johnson was paid a higher wage rate on his previous job than eric took was king but that was the case with numerous other applicants who air attack did hire they all had received a higher wage rate at previous person by person that their resume or their application hey they weren't making more they were either on employed or making the same got what i asked for the applications for each tech and maybe not in every instance it was be a mediately proceeding job but they in the past had received a higher wage rate the ag era tech was offering them and the explanation they gave this wage rate that's when i was not qualified they didn't say well johnson was making a lot more than he would be paid here they just said he would it was a red flag that he had received more than a previous job but that was the case with with these other applicants as well and so this kind of inconsistent application  criterion is classic evidence of pretext we also want to do that the application for the for individual say about or didn't say anything about what wages they would accept it didn't say anything particular wage rate says that he does but that's a credibility determination with the the board found that he actually did not and that's because his whole point was to get hotter and so he could organize the workplace and if your whole point is to get hired you're not going nearly fifty percent of the people they hired were union members and were or had been union members at one time and that they've even hired a couple of people who were union organizers so that two men responses to that the first is again union members that are already been hired and were already on the job and kristen breen and the repair tech recruiter who was directly responsible for identifying and hiring the candidates for the interstates job she testified that she didn't know the union status of any of the people she identified so that's why it's again a credibility issue the second point is the point your honor was making earlier that there is a distinction between a union member or union supporter and a union organizer and the only four in a union organizer until well after he was hired great yes when he was first hired there was no indication that he was a union organizer he was later listed on this letter that counsel for tech referred to and he somewhat later several months later on august twenty twelve was contacted by someone at air attack he was not hired for another job he was contacted by there's no evidence that the person who contacted him knew anything about his organizer status because that person that recruiter was not involved with the interstates job where he had been identified as beginning organizer the stock brothers andrew and joe that were also mentioned before they were union supporters but they were not ever put forward as union organizers they were not listed on that letter to air attack listening to members of the organizing campaign and the subsequent jobs for which they were contacted were not electrician positions so they would not have been able we discussed in our brief there is a reasonable inference that the true reason is and on the one and that is certainly had a principle that has been put forward by the board and by this court on multiple  it's only johnson but the burden is on air attack to show that johnson was unfit for service and that is a heavy burden because it is essentially the wrongdoer seeking to benefit from its wrongdoing competing with this employer seems like a bit of a stretch to force them to then hire this person as just quickly as to the first point there's not evidence that he was recording anyone it was dave irwin who was recording testified that the other questions about billing rates and commissions were something he was he was curious about but there's no evidence connecting johnston to that line of inquiry as to the two times that he reached out to interstate where he offered to refer electricians directly from the local twenty two hiring hall so that i think is really the nub of the question of whether that those two instances rent him unfit for service so the the case is about contractual interference that eric tech cites the difference is that those all involved discharge incidents before there had been and the question so it's a different question the question in those cases is whether the violated the law that it unlawfully discriminated against him and so that is a key difference because it is tech seeking to evade its remedial obligations to the victims of it's discrimination and the and the reason why it's it's not a problem and to your question about about hiring him is because the board found that his conduct the overtures were unlikely to continue if you listen stated and that is because he only well for two reasons really he only reached out interstates after it had become clear that air attack was interfering with the organizing campaign seven months had passed since johnson had applied for employment with an air attack that hired over thirty electricians refer because plan a was still working and just responding to a point for america earlier he wrote the first evidence the first time he went to interstates was in late february so this was seven months after late july when he first applied and the he was told by interstates no thanks we don't want to hire directly from local twenty two so plan b wasn't going to work either so it is perhaps at that point that he returned to plan a and sent the protection letter and filed the r c petition so that is the explanation for that there's it's still the board's finding it still supported that he only turned to contacting interstates after he had been made clear that plan a the organizing campaign was not by air attack because then he would be on the ground and able to organize the employees as was his intent and if he was going to go around and do things that would get him fired that would obviously make things more difficult for the organizing campaign so that those two rea the board found that he would not the the alleged misconduct would not continue if he had been hired so that's what they're in state and so that's why it's not a problem for him to be in statement as part of the remedy in all those other about how it would be improper to require an employer to hire a competitor those all involved as we were talking about this kind of previous charge misconduct so it is a different question understand their business are kind of like a hiring hall they hire a higher out electricians to various projects that come and go over time when these and statements occurred as these four people have to be the first electrician used in every project going forward for them so that i believe would be a question for the board's follow on compliance proceedings so if the court in courses the board's order van has the employee who had been on lockley discharged he made statements about the employer talking about and how bad the reporting was it was a newspaper and this was at the time that he was considering starting your rival newspaper so there was this element of  potential competition there and that was not a hindrance to ordering reinstatement and back pay for the awful discrimination one last point i want to make unless there are further questions and that is in the other remedial issue thank you with regard to mr johnson's actions his actions in a pro ching interstates actually undermines the very organised ational effort that he was trying to accomplish he's going to interstates and say hey he's he's suggesting i'm going to be representing all of these interest era tech employees at the same time he's saying i'm going to go to interstates and a limb and a whole workforce and bring in my union bring in the hiring hall with regard to the discredit the testimony that that was just mentioned that was based on an affidavit that was given where mr shanks said well i didn't know know specifically that they were local twenty two union  documentarians indicate union affiliation mr stocks resume indicates it mr joe stocks resume indicates it at eight twenty one branding strides resume indicates at seven seventy eight  logo on all of these resumes david irwin at six fifty eight resume indicates that john thompson actually is resume indicates the local twenty two that's at seven ninety two whether or not it was him or eight other organizers simply didn't make a difference plan b he was engaged in interfering with a contractual relationship and interfering with the business relations at the same time that he was  is now submitted and will be decided in due course