national labor relations act creating an impression of surveillance by making course of statements as employees designed to suppress employees from engaging in protected activity naturalized challenge those findings here and before i go further i'd like to reserve one for both of your st argument the natural life did not raise objections to these findings below the national i did read objections impression of surveillance exception number thirty on the s t r seven identified the course of statement issue exception number thirty three and s t r eight identified both issues transcript and it certainly seems to me that she went well beyond offering personal opinions she she told them that that she had talked with the boss that they were closing the office effectively they were they were fired and when she to work with and she says quote if you ever want to be on my team again one day wherever i am or what ever i'm doing you know i would love to have you if you fit into that criteria so i think there why should we not accept his decision i mean you're going to make it a closing argument to the hearing the exact words were the appellate court here and we have to accept his decision unless you offer us a reason not to well and understand your honor and the reason i would offer it out to is that you know as an appellate court this court exists to do substantial justice and needs to look at the record and whether or not the hearing examiner was justified in drawing the conclusion that he i think question really is whether a reasonable employee would believe she's speaking for the company or is she speaking for herself and i and i think just the way she spoke talking about the twenty use of the word at least her and you know is it permissible reading of the evidence to say that when you send someone out to announce that they're being fired and she does that and then gives reasons and says you know maybe some of you will be hired conclusion could certainly be wrong well but then you move if that can be wrong under the substantial evidence standards that apply we can set that aside but we would simply argue that we don't believe th statements cost is substantial evidence that she was speaking for the company i mean reading the transcript of the recording again she is she's talking about her own opinions her own beliefs and i think it's with respect to the impression of surveillance the school just spoke about the quality assurance department listening in on what was being said and the board if that's real life employees discuss filing suit of telephone lines they were being monitored by the company that's not surveillance it's important making statements simply in the presence of their employer accordingly  our positions of the board's finding an impression of surveillance is not supported by substantial negativity employee complaints about other terms and conditions of employment the stipulation does not say complaints for group complaints evidence of concerted activity concerned to filing a lawsuit against the company or the even when she says they have a whole conversation a few people talking about a lawsuit might have been our law i don't want to deal with people that you know want to do that to me so isn't that some evidence together with the other items in the record that there was going to activity about filing a lawsuit and that then the company acted based on that well i certainly think the evidence company looks badly upon those people she's not saying those things talking about who she wants to work with she wants to work with people who have a positive attitude or willing to learn or who are willing to deal with hard times a straightforward retaliation a substantial evidence supports the board's finding that natural life is charged since its entire sales department after they repeatedly voiced their concerns about wages and other working conditions natural life largely ignored that evidence and much of the board's findings and relies instead simply on its own preferred version of accredited evidence shows that failed employees consistently were bringing  complaints to management in the months leading up to the discharge for example in mi related to the issue of eliminating the opener's position accredited testimony was that at the meeting where that change was announce employees quote everyone complaining and in subsequent meetings quote they complained as a group to management about this issue they spoke with each other about going to the board or going to an attorney and employees raise that issue with management it brought it to family who brought it down and everyone aware was aware of what was going on and that relies focuses on the stipulations it entered in and of course for the reasons described in our brief the board reasonably relied on the relation but that's not all it relied on so the stipulation issue is really a red herring because there's ample evidence of concerted activity in the authority from still in awe of the president of the company to leave this meeting to address the employees and to tell them about the closure of the sales department and that they were all being fired and when asked directly at certain points in the transcript but there are other points to the transcript which uses the word we and she's speaking generally all employed saying things like you guys know where you've been doing people have been complaining this is what happens when relying on the ministry of lodgers finding found to the contrary and that is what substantial evidence the standard of review required the board's finding that good deal with acting on behalf of management are well supported and of course it was no surprise to employees that she was speaking on the afghanistan because she had done so before there were prior evident instances in which she led meeting wishing ounce company policies so employees would reasonably believe that she to stay in office itself and long been on profitable and had been suffering quote imaginable losses for years at a time before the destruction so it was simply not credible that all of a sudden economic was the reason to discharge entire sales force and because the board considered that argument on the merits there is no prejudice from the from the sanction the board issued for failure to comply with you know which of course was the correct ruling life reference at the end so the board concluded that there was an improper adverse inference and did not adopt it but they found that there was harmless error and the reason is because on the back of natural life mistakes that go from that adverse in e all the adverts inference went to was the date of manager john whether he was still working after july th and there's evidence aside from that inference that he was so it's not necessary to any result and of course the board found and the dates of his employment go only to the argument which natural life isn't even raising or really that these strategies happened because there was small issue really had no bearing on any finding of the board and thus was our error and want to briefly address the other two violations that natural life started with these violations the impression of surveillance it seems to me reading that the lack of additional detail you know doesn't strike you as problematic because of the overlap between the issues of one it seems that when you say there is essential evidence exceptions breaks and the board's rules are that when you file and exceptions brief any brief in support of exceptions must continue and arguments and the the two violations just be impression of surveillance and the threats are not mentioned in the exceptions brief at all there's a long list of numbers at the beginning but and they do say this one thousand and thirty but it's within the context of maybe twenty five or twenty six numbers those violations are never mentioned by name exceptions that issue came for the st time in the board's decision itself and the law is clear from the supreme court and this court in order to preserve an issue that arises for the st time in the board's decision you have to file a motion company's reasons but our position was beyond that and she started getting into her personal opinions about the reasons for the terminations and we don't believe that her life should be bound by the personal opinions of one