decide that question no the only question is whether the board's and the holidays decision that there was no credited evidence sham or however you want to use the words supported by where miss morris said move ha ha ha ha they fallen into my crutches and when asked at the hearing what that meant to her she said well that would mean i were them in but when i said it it didn't really mean  and then in addition to that what is also critical here is we sent out subpoenas asking for the information that would further indicate then the nature of this plan this this and this  ha what a funny did it and then we asked at the hearing what what followed that and you say after that well i don't know because she was talking about the events of the day the terminations she was talking about the fact that she celebrated when she was fired and you know jay found that even though she celebrated this time celebrated with their fire even though the manager gave testimony exactly along those lines that the manager's testimony must have been fabricated because it's squared up with what the workers had actually said in their facebook posts in s f in essence the workers parties themselves so when the subpoenas went out and mr morris came back and said hey look for anything you guys have all of it i didn't even look for it at that point time the employer is deprived of the right to be able to test this here came back and simply said we're not going to provide this we don't have the time and that's when the judge said well you better go and talk your client in and find out if she's going to produce documents and they came back and said purpose i may now have the right to whatever i have in the law that would be an admission that would be damning to a claim to say that this is an honest and reasonable postings before the firing were put into evans well you   a plan in mind that they intended i'm not sure why it why and you think in that sense about the employee handbook shows how planning my one has i'm what it shows is that they said they were being treated unfairly and looking in the trial what were the rights are in the handbook well we have a right to a microwave in a water cooler and now the n l r b in its appeal brief interesting we say well so about safety here we're trying to protect for that protest for their safety being on heat street at night was dangerous you're  and has just won one little piece of the other factors it's relevant in the sense that mr morris says i never looked at the book i just brought it instead of the table and said hey take a look and they took it home and then i wrote about it on facebook to say hey have rather workers rights bookend to demonstrate the facebook comments which were the heart of this whole thing were simply a sham begin to demonstrate that my employer is violating the law in these employ i want to know what johnson's involvement in any of those jokes and signed to the letter to the management about griffin's behavior that affected their terms and conditions of employment she was in the staff meetings where employees complained to manager  about their fears their concerns about safety staying late at work at night she was part of the facebook conversation that brave the workers rights but then the judge did say her particular comment was an oculus but the issue for the judge was that griffin the manager associated her with thomas and more and said that she would like to put a gag order on her so that she could not discuss work with griffin and thomas or with mor the the board might find it to be a violation but the threshold would be that she had to be involved in protected concerted activity and here she clearly was me she was involved in she signed the letter the original letter that went about griffin have got together homework well if they were complaining about the lack of a water fountain that could be their terms and conditions of employment i mean i don't know that that would not be protected concerted activity but this particular employee received a text message from thomas manager griffin saw it and immediately said i want to put a great gag order on you so that you could not talk to them about work the judge found that that connected her recently been fired and when she was fired miss johnson he found that the reasons given for her firing were pretextual there was no real reason for her firing except her connection to morris and thomas and the protect that's the post the board found to be pretty part of the protecting the story of activity as a continuation of their attempts to have managed to close the store one hour earlier than attempt was the night they complained about it  the other facebook posts there are a variety but they're sort of there extra in a sense minutes the workers rights post that's part of the protected thing to activity that was a continuation of the discussion with the owner about closing the store matter of record that whether they were bluffing or not they were looking for other jobs it seems like an incredibly you know it as a remedy a because africa where there is extreme misbehavior antagonism between the supervisor and employees is not reason to stop reinstatement especially when that antagonism is part and parcel the employee has definitive plans to move the employees accepted an offer or the employee has told the employer i'm leavin i'm giving you my notice then the board will not order reinstatement but simply looking for a job and the owner were fabricating testimony and he would not credit any of their testimony except i thought about the postings i thought some of those postings had as well miss morris posted something she described as being sarcastic that she was not actually celebrating when she was fired she posted on facebook what she considered to be a sarcastic statement and the judge credited her testimony when he found that she was completely credible and that there was no evidence that she and mr johnson mr thomas actually celebrated they did it they both said they hugged after they were fired in this court and out of the building but they were not opposed to say something about freedom this  was that this particular post said sarcastically we the best thing happened we celebrated in good golden high fives eyes what happened was as you noted this was an extremely broad subpoena all cell phone records all e mails and texts between these employees and certain other employees for miss thomas all employment applications don't you nine's forms with her says the security number on  the administrative law judge trying to narrow their requests he told the employer that they get asked about cell phone records if they needed to know about a particular phone call face proffered that they wanted t cell phone records and facebook records to prove that employees were using cell phones and computers on work time and the administrative law judge admonished them they would not be allowed to fish for reasons not to rehire these employees he let them ask employees whether or not they had more responses to disappear they only ask this morning miss thomas and miss johnson rounds when the stand they never ask a question they never and she also testified that they had all of her facebook posts already she had provided them at the start of the trial and that they had everything related to her her comments about the job on her face but they already had  that was her testimony but how could you say that if you had looked she ten she said that she had not posted about the job since then at the administrative law judge believe her but remember this this particular question goes to and or sanctions against that attorney they never asked the general counsel to of course the subpoena and they did not tell the board that they did not bring up these merits issues they asked for an adverse inference or sanctions against the employees attorney you have to is questions of miss morris they didn't believe her but they never brought it back up to the judge that something else should be done there was no indication from the judge or the general counsel that they need to take further steps on this record and i after you question that one witness nothing was ever brought it to the judge or the general counsel again that that was inadequate actually irrelevant to that question if i don't like my supervisor and complain about the heat in my office with my other employees let's assume i'm doing concerted activity because i want to get my supervisor in protection of the app whether they were disloyal or defamatory and those are questions the board has answered in the affirmative in other cases where they found a facebook post were not protected that kind of issue did not come up in this proceeding this is actually before the trial took place was the discussion that mister rosenfeld the attorney saying i'll be late i'm not going to produce documents in time and only when he was sent out to tell this morning and i do not have a cite for that off nonsmoking about why he needed the facebook postings if there were that discussions about the other it was partially aquash and the board actually joined in the motion to quash so that to answer the question about you know should the board be doing something when we are before the board the board so i didn't raise it that's what they said and i looked in your reply brief and you didn't say oh yes we did you just let it go and i think we raised it on the kind of text as put in there exception six but that one i'm reading is not just about imposing that verse inference or other sanctions right which is should have been it's not a question of the board moving to enforce it's a question of the employee not responding or not complying with it they say pages from twenty ten to the president regardless of the subject matter everything every single one correct i can't imagine an algae granting that so if you want to narrow that something you agree with that right now couldn't possibly get every facebook page i understand anticipated that those postings rather than getting space because i don't know what facebook's policies as you know at an end of the proceeding try to jump through those hoops in time for the proceeding would be difficult to say the least but if she provided them already she's provided the affirmative evidence just need to provide the evidence that undercuts what she's trying to assert here in just one last point that the question was raised about whether if there was not actual protected activity and the notwithstanding the intention to respond to discriminate against him so in order he says this is the kind of this facebook posting this is it and a lot of it happens to be with not employees this is the reason that we're claiming it was the fact that activity if p sure a lot of people who don't go to their employers computer at the store said or not when they know their employer is looking at those resumes also so the extent that again this is some sort of a valid employment search it's not the way you do it there are plenty leave they did list