the next case on our calendar this morning is national labor relations board versus rochester regional jo two was a violated eighty eight was a secondary provision then there was no argument made before that before though addresses conduct at the scene and eight easy addresses in agreement and before by seeking arbitration but that did not attack a dress the fact that the one argument we've had from the day we just made the opening statement to the a l j is that this is a primary work preservation  guess even more generally if one concluded that the union was presenting an on an application or an interpretation of article twenty two that would have been unlawful the required number of unlawful before on to separate one of addresses a contract provision the other addresses conduct and it seems to me that they can be separately and forced and understood and that the failure to mention  before in the exceptions between a very difficult position be issue is whether it's primary or secondary if it is arguably secondary eight because of its language would violate eighty but you could have a contract it violates the secondary that the employer agrees to have an a b violation with all respect you cannot because a national would work if it's a prime or a clause neither of those sections reach it or not here arguing that the board was required to hear the issue we're seeing simply that the argument that the issue was not waived was raise the question of why there was a primary clause was raised it was not mentioned in the general say that since they did not want to reach that this issue and they did not reach the fact that they found it was waived to include a long footnote explaining why it was a separate issue and why it was waived and what will our position is that the board cannot by stating they will not reach an issue issue an order in ashes court to enforce an order which there is no cases in the last forty years where a law for primary work preservation clause has been exactly where you made that argument thank you thank you good thanks very much and misters site on the board decision of the mention of a large edge cited to several cases where you greta i want to hear you say that you know the view is that even though the clause itself might be legitimate under the national labor relations it's not going about here or in the way it was being interpreted it was still a violation of section eighty four and those cases again they were cited in the judge's decision they were cited in the board's brief the union before this court is not disputing any of these cases or any of those principles so it was clearly on their visit was just so you had to have a violation of article twenty two you have to be a violation or to go with the conduct for which you honor the union is this kind of going back and forth on that and quite frankly with all due respect it's been a little confusing to the board itself as to what the units argued but ultimately in the union's reply brief discord and i think that arguing in this morning's union council has recognized that section eighty operate in the independently of whether or not there's a section eight before finding necessarily an age before necessarily flowed from the eighty finding that it was unnecessary to flag eighty eight before finding this well because the judge you treated them together but your honor the the judge had a separate finding respect to the four separate discussion with respect to before and the judge never explicitly state that because or is this violation of section eighty there is therefore a violation of section eighty four and again the judge cites to cases where section eight before  between is iraq's in jail as sub contractor and the judge did not refer to this is a transfer of operations and giving up control so that either implicit or explicit within the judge's finding that there was an interpretation or it was unlawful but even putting that aside again this is not a substantial evidence question before this court as to whether or not the judge could have or might have or should have done some a little bit more to fully flush out the before finding  incumbent upon the union before the board to set forth its exceptions enclosed in the exceptions that he did set forth in his fifty eight it clearly understood the board was except for some very specific exceptions the grounds for those exceptions the winds of the and then when it gets to the eight before there is simply no exception to any of those lines within that ministry it what it did and did raise the point though in it's a motion for reconsideration and maybe in the reply brief before the board wouldn't have been blindsided necessarily that is quite right your honor under under the board's rules and regulations which are very specific and very clear cut an exception needs to be time we raise and that means we're using it in these steps and to the board and we need to show extraordinary circumstances for why it was a reason exceptions for why it was being raised in the first time later it is not shown or even alleged any extraordinary circumstances at any point in this proceeding were there before the board or now before this court and i would point wouldn't have to be a reman back to the board consider the issue and that would be raising the exact purpose and intent of section twenty the act which is designed to avoid piecemeal a geisha and then over a year after the board's decision that the union want this case t address what i think is it is a key a key contention from from the a new counsel mr heron but i believe is incorrect he repeated he repeated in his brief multiple times and here this morning that his opinion that the board determined that article twenty two of the labor agreement was a valid primary were preservation costs and i want to take  if you if you read the board decision which i'm sure you have done in i've scoured it nowhere in the board's decision because the board say that it is a primary provision or that it's justified by w board says is that under its reading of section of that article in the board's field which is distinct and this is where the board disagreed from the judge in the board's view that article twenty two does not necessarily prohibit doing business relationship section eight of the act prohibits agreements where the parties agree not to do business where one of the parties say the employer xerox agrees not to do business with another employer that's what eighty focuses on what is the agreement prohibit and doing business is is the kind of agreement prohibited by section eight the board said article twenty two doesn't interfere with doing business audience at all it says is if you're going to sell the company or transfer of control of the assets of the company to another party we want that party to assume the laboring many many cases including cases decided by this court recognize that that selling a business selling the assets of  business is not doing business within the scope of that term used in aid and the judge got that wall up for you to call the article does say transfer operational control right article does that's correct but the board but the judge concluded in her factual determinations not accepted to by the union that this was a step a regular sump contract in the way she should the disc was just ordinary sub contracting xerox arrange for j l l to perform certain work for it which includes work previously done by the union's members by bargaining unit members so it's a traditional sub contract relationship and in many cases are legion cited in our briefs and i'm happy to recite them to you now they're recognising in a sub contractor relationship which is doing business under section eighty you can't require  with with the less or that was the basis for her finding article twenty two to be unlawful alessi less our relationship being doing business the board said no the way that article twenty two was written it doesn't cover all  lessees therefore we're not going to find it on lawful on its face but the board's ruling is limited to article twenty two on its face the board didn't address what the union's trying to do with article twenty two applying it to prevent the issue we wished to have before the court is the l j found an eighty and eighty violation went on and considered whether eight before was violated by two actions found it was not to the first it was to the second neither of those were premised on an independent violation eighty four both of them were drawn from the predicate that eight eat was violated by section twenty