proceed when you're ready thank you good morning your honor samantha please the court amanda jarrett on behalf of petitioner united food and commercial workers local four hundred in this case the national labor relations board overlooked critical evidence demonstrating that the employer excluded a union organizer from its premises in a manner that singled out the unions protected message for disfavored treatment and thereby violated the national labor relations act in april t nearby kroger locations because stores by thirty eight was closing well kroger's least was the shopping center where store five hundred and thirty eight was located contained a no solicitation no loitering rule program had in the past tolerated a range of solicitation and distribution on its premises in this case however kroger chose to exclude the union organizer from its premises and it just so in an unprecedented fashion kroger invoked a march twenty four team letter from its landlord which it had never used before that letter issued on another occasion when the union planned to access the parking lot to disseminate a message protected by section seven of the act that letter empowered kroeger to have the police respond to protesting and disruptive activities explicitly including those involving a labor union well the administrative law judge found the march twenty four team letter relevant to the complete no we gave him the kroger selectively and just briefly enforced access restrictions in a manner that interfered with section seven separate claims that could be raised one as has to do with sandusky mall and the board's decision to revisit that line of decisions and come forward with a new for a brick and then the other is the motivate claim but it sounds like you're focused on here in your your briefing is focused on and as to the latter one st of all it seems to me that you agree in your briefing that those are distinct ways of looking at the scenario and there there's a question raised about whether the motive based claim is properly before us because it wasn't raised by you and before the board and there was no bushing for reconsideration filed on that ground and so under one hundred and sixty he the board has has argued that that's not properly before us can you address the yes to the end physician is that the complaint alleges that kroger by selectively and just really applying rex's restrictions interfered with section seven rights and the union at all points during the litigation in the general counsel at all points during this litigation found this twenty four dollars team letter that we identify in our briefing and which i was just referencing in my opening remarks this letter was relevant to the question of whether kroger selectively and just broadly applied access restrictions because of the circumstances surrounding its issuance its wording and its history of not being enforced the union was not required to file a motion for reconsideration because the relevance of that letter was urged both before the administrative law judge and the board the board had adequate notice of the argument that the union is now a dancer owners review and rejected it finding and says that the letter would only potentially be relevant to an allegation of and i'm also  something that was raised in this case so but but but as as i read our decisions we have this isn't a she a corporation percent of our b and the language of that decision says a party may not rely on arguments raised in a dissent or on a discussion of the relevant issues by the majority to overcome the section tenney bar the act requires the party to raise its challenges itself so the fact that it was before the board in the sense that the board addressed it the dissent discussed the argument in some  depth and then the majority engaged at least in footnotes and then decided not to trade with it that it's from the language in h t h it's not enough that the board had the argument before it in that sense it requires that the party raise the challenge is itself so the union's position is much like in this court's decision and the american postal workers case there was both a discussion in the underlying administrative law judge decision and in the briefs before the board that was in both the general counsel's brief on cross exception and in the union's brief that this letter was raised and it was relevant to the question of whether there was a selective and disparate  access restriction and so it wasn't simply that the dissent raise the issue and it wasn't present in the case before the board also opens itself i think to this issue by in the th footnote up the decision in order discussing the fact that in a case like this where there is some indication that the purpose of section seven activity and that the union's message itself is potentially relevant even under the standard the board announces so i think overlooking the evidence that the union raises in this appeal is a real problem but the fact that they haven't held and one more question along these lines the fact that the evidence the letter might be relevant to something doesn't make me that their argument was raised i mean it's true that you can use evidence in service of many different propositions but the question it seems like under our decisions is whether the challenging party now put forward that argument before the board and it doesn't seem to me that you dispute that the union put forward that argument you or your position as i understand it your position is that well regardless where a line of evidence that all of us thought was relevant and the argument was before the board but i take it you don't dispute the proposition referring to the just referring to the latter doesn't mean making the argument about motive there's the other argument that was made and as to which the letter might be relevant to but it didn't seem like in your briefing or today and i say innocently is because of this i just want to understand the position that you're taking that you're not saying that we're ok because we in fact did make the argument you're saying we're ok because the argument was before the board correct and i think the unions you know view is that the american postal workers decision that i referred  to is a very similar type of procedural posture that this case is in and i also just want to you know sort of take this chance to recast a little bit something that i think the board says in its brief that the union challenges which is this implication that they are somehow to analytically distinct types of discrimination cases and i think the unions view is that that's a mistake and there's only one kind of discrimination case and this evidence was relevant to the complaint allegation and you know we only need to get into the kind of analysis the board did here where we compare all the history as in the senate sent us chemo a lot of cases when we don't have the kind of evidence of discriminatory motive that's present in this case this is really that kind of rare easy case where we have a much clearer story of discrimination and for that reason you know even accepting that the letter was one of several factors that was discussed earlier phases of this case it's a very important one in the board should have at least treated with  it just to extended return to that point a little bit you know the unions view is that this march twenty four thousand letters wording the circumstances of its issuance and its unprecedented use to exclude the union organizer had to be relevant to the board discrimination analysis in most cases it's difficult to ascertain whether an employer's decision to treat union organizers differently is rooted in animus and that's why the board typically engages in a more searching more searching type of a very but where that the letter was prompted by a desire to keep the union organizers out of the property so that it i think that's one important piece of evidence what was the basis for his belief because he was store manager at the time and knew about the unions plan to engage in a similar type of solicitation that occurred in this case and that that was the response to what he and i didn't say he knew he said he b know he just said he believed and i knew this one line and that's it and you talk about overwhelming evidence and i hardly think that's even substantial evidence with respect i think it's important to note that it's on contradicted evidence and there was no effort to try and articulate any other justification on crowbar so why bother contradicting it when the when the general counsel wasn't even arguing that that motivation was the he  said there was only one issue and that was disparate treatment again i think this question about whether there's one issue or two is an important one for the union in our view is that in fact this and other decisions like that the board has to take that into consideration because what section eighty one dollars of the activity is interfering with protected activity and with singling out the union's message for disparate treatment so it's not just that one line of testimony that we're talking about it's also the wording of the letter that singles out unions explicitly it doesn't cast its prohibitions in general terms and it talks about protesting in disruptive activities there's no indication of any other groups that tried to that and i'm counsel for the national labor relations board the board resolved a single issue in this case which was whether kroger discriminated within the meaning of by allowing not employee charitable and civic organizations to solicit on its way east premises while denying access to a non employee union representative crew thought to encourage a boycott of progress towards the board resolve this issue in favor of kroger and after consider reconsidering and revising its understanding of what it means to discriminate i allow another distribution in the language of babcock the board dismissed the complaint the in the present appeal as i understand it the union does not challenge the board's revised understanding of babcock and what it means to discriminate by allowing other distribution instead the union claims t court could have withheld judgment on the issue of disparate treatment that was specifically litigated and could have instead found a violation on a different ground that kroger allegedly acted with anti union animus and the problem with this argument is is sort of twofold in terms of procedure the general counsel in the litigation below never suggested that there were two independent grounds for finding an unfair labor practice in this case the general counsel at all times argued that kroger engaged in disparate treatment understand him all which was the case interpretating babka and so to the extent that the union is now proposing a different path to find a violation is literally adding to the general counsel's theory of the case which is something it cannot do understand a section three d of the act the further procedural problem for the union d is that it never raised this alternative path to a violation before the board and it certainly could have done that after the board's decision issued and it became clear that the board viewed this as a disparate as a pure disparate treatment case  moment when the union could have and should have told the board no you've misconceived the issue of discrimination before you it encompasses as ms jarrett has said more than simply disparate treatment that was the moment for the union to raise that issue and i do have to disagree with the union that it's this this argument was before the board on exceptions it was not if you look at the briefing before the board you'll see there was no separate analytical path outside of disparate treatment that was presented to the board so there is there may be evidence that was raised in in the litigation before the board but the evidence was used for a different purpose and so for both of those reasons i would say that the court should not reach the union's argument if it does reach the the merits of the argument though can i just i want to before you go to the merits of one question on the procedural arguments you've raised so suppose that the suppose and i know you'll disagree with this premise but i just see an interest in exploring it suppose that the generally think that the general counsel at least put the put forward this strand of the argument the motive strand of the argument at least it was sufficiently within the rubric of for the general council was urging but the union never did and then the board and its decision the dissent of course addressed the issue and then the majority responds and says a that issue is not properly before us and be even if it were we would disagree on the merits that's what they say and for the twenty three dollars i think if that's the scenario then do you think that the union is out of luck procedur because they didn't follow a motion for reconsideration or do you think the fact that by hypothesis the general counsel put the argument before the board is enough i think that the requirement of section twenty is that the union the party has to urge the objection before the board so technically speaking the union cannot rest on the idea that it was going before the board and that or that another carty had raised it the board's position would be that  the union itself had to raise the argument before the board how do you get that out of one hundred and sixty eight dollars it's written in the passive as if it doesn't matter who makes the objection as long as the objection has been made so why does it right i believe the cases show that there is an affirmative obligation on the party advancing the argument to to affirmatively urge its argument before the board because even if even if somehow the general coun had raised this which again the general counsel did not there there still is a question about whether this was whether this is an argument that was fully litigated before the board i mean there there may be some vague way for the for the union say that the general counsel raised to this but there is still a question about whether it was fully unfairly litigated as an alternative theory and attribute the latter or any animist that may lay behind the let the matter to kroger in addition the letter on its face contrary to what the union says did not discriminate or single out unions for different treatment it said that any picketing demonstrating and related to script of activities on the premises would be prohibited whether or not involving a labor union and finally kroger didn't correct use of the letter doesn't suggest a union animists because kroger used the letter in a circumstance where it was presented with protest activity that fell squarely within the ambit of the letter and there is no surrounding circumstance that would suggest that kroger's use of the letter was motivated by anonymous program had never permitted anything on its property like this boycott activity that the union was attempting to conduct and so for all of these reasons the board believes that the court should not address the union's legal argument about motive because it was never presented to the board in the st instance but even if the court were to reach the argument it should find in agreement with the board in its brief that there is no evidence of anti union animus that would compel the board to find merit in the general counsel's complaint so what is your is  the there is testimony in the record from one manager about his belief that the letter issued in response to union activity on the premises but there's no detail as far as the basis for that belie or any any reason to think that kroger was involved in the in the genesis or issuance of that letter that manager literally presented one sentence of death to money on this letter and it was very big so certainly although there may be evidence that one can cobble together from this record that might suggest an immense it it is certainly not evidence that would compel a finding of animus which is what the union i suggesting the board in the board did actually address much of this evidence in the course of its response to the dissent and it's it's discussion really shows that there is no there is no reasonable basis on this record to conclude that kroger acted based on entire union animists you're talking about the discussion and for not twenty three yes yes can i ask a question that is is it in the record whether this letter went to the other tenants i don't believe that's in the record your honor ok there is that in the record is it in the record that there are other tenets yes matched that is in the record if there was yes there are there are several case turns on the board's failure to take account of evidence showing but progress decision to exclude the union from its property far from being a neutral act taken pursuant to a generally a political access restrictions was instead an effort to suppress the unions message and thereby interfere with activities protected by section seven of the national labor relations act in the union's view the essence of section eight a one violation is to treat the union differently and based on longstanding president one that a property owner like kroger does something inconsistent with its practice and as it did in this case invokes a letter which by its terms on its face singles out the union for different treatment and which has never been invoked against any other of the many non employee groups that sought to access the property to engage in similar activities that constitutes discrimination under babcock and so standing in the earlier line of cases that form the basis of the discrimination exception because the board's decision to overlook this evidence which was properly before it and which taken together shows that what appeared perhaps to be a neutral property restriction was in fact a vehicle designed to empower kroeger to target the union and to take action against it that it had never taken against any other groups the board should have dealt with that evidence now the unions position is not that this court can find on the basis of this alone that the board's decision was recognize court should remain and the matter to the boards that it in the st instance can weigh the significance of the letter the circumstances surrounding its issuance and the history of its selective enforcement because if that evidence which the union believes is essential to whether the complaint allegation stands or falls thank you counsel thank you to both counsel will take this case under submission