permits employers to engage in recreational activity for the benefit of their employees and section eleven i believe has to be afforded protection from being whit attack so to speak on exceptions and i think this is a perfect example this wasn't an act of charity event it was a bowling event i think by any definition the bowling event had nothing to do with it states not to be limited so it's not precluded by just simply the classic no softball event and hot dog sale you know outside some park or other place outside of the employer's  this is where i think this is distinguishable from perhaps another charitable event which could in fact maybe be deemed to be just solely a business purpose that in this event there were no cost hers that were present this was not promoted there is a on well in the first instance it turns on if the employee volunteered and or it was assigned and i could get clearly was it would be to overturn the commission decision you would have to use the ordered me to bring in documents that was never word by patricia's counsel showing all these memorandum but the fact is this claim or testified that the only document she remembers was a document said that by the way we're going to have a charitable that she  recollection of one memorandum even though it turns out there were some other memorandum set up but let's look at that other memorandum there is a list of literally states will you attend will you not to attempt it it's clearly you know fifty fifty and there wasn't anything in there that said you know we you know we're we're looking for you and you know it there is no implication that if you don't attend something and there be repercussion and i think what we did in what i proved at the hearing was with the office manager that five people did not attend a total of thirty five thirty six employees and out of those by two were promoted i apologize maybe one was promoted and two  remained and were still on staff at that time doing what they did all the way back at the time is the original of that and others went on to other companies and there was no repercussion to the people who didn't attend i think the our true self clarified that the people who did not attend w particular entity of c b s i come out to work is kind of what it seems to be is are these signs that you see along the highway more billboards it's basically outdoor advertising display advertising and they jurisdiction then you might be alarmed you know they're taking this event and there you're converting it into some type of business activity but there is no proof of that and there's no evidence and i said it's a speculative it's just as likely to infer that and minimally it's a charitable event for is not sufficient to take the edge and indeed to remove the imposition of section eleven rights when you have a recreational event what we have here is exactly the same thing there was no business purpose to this other stated that the good case is clickable because of it good will not being sufficient to preclude the imposition of section eleven and then in his order he states it's undisputed that this was a business purpose i don't know ari reached that conclusion  that inference and i think you know if there may be a case before this court some day where that could be the situation and i think then it would be it would even be a sectional of a case it would just simply be taking some type of recreational event and converting it to some business purpose w advertised it's promoted it's used to show benefits of the company here we don't have that but i do believe that the gooden case should be followed through in this case and then just take good will that we just kind of  manifest weight standard here ok i believe the reasonable inferences are simply that there is actually no fact danske we have one in terms of her whether is was a voluntary event i think we have sufficient fact that she just felt that she had to go but we have overt testimony that no one was ordering or signing or compelling her to go with direct order so that issue voluntary nature of this event i think was clearly established people who remain back at the office no repercussions to them too in terms of the good will the benefit to the company i believe again that there are you know be the one document cited in here is not even a political he's talking about advertising  that this wasn't the facts are the facts are not disputed she wasn't explicitly ordered to attend however they put a whole lot of pressure on her to attend going so far judge as to have a contest  awarded for the highest percentage of participation if you look at these numbers here thirty one out of missy understand testified that thirty one of thirty four people attended actually i realized later on back and look at her testimony it's actually higher than it only was not the purpose of the about the purpose of the event look at the name of it it wasn't employee recreation day it was by a community day it was and it was an opportunity for this company to curry favor for various documents she said that the documents the documents indicate that the employee has continuously told that we're looking i mean they literally put a bounty on the head of every employee by announcing the prize to the market with the biggest participation here so it's so the while not explicit her participation was implied which was totally consistent with what she said basically she was pressures like is like similar to when i was in the air force and my flight commander came down and said he would kind of god when we had somebody work the snack bar this afternoon it was that type of voluntary it was the boss telling somebody hey we'd like you to attend this thing we need some volunteers to attend this there's an implicit hint there that it's voluntary plus best only part that's only part of the analysis under jule t that's one of the three analysis whether or not they were pressured to attend the other two parts are what was the extent the employer event for their benefit here or percent one percent back not even this employer this direction came from the home office this went out to every single facilities are we to assume that all at every single viacom facility in the entire country on this day all of the employees volunteered to recreate all the same time even if you were to assume that the facts are in disputed whether or not they lead to the conclusion or inference that it was obligatory versus voluntary those are reasonable inference was to be drawn from the bag really i really on that i think i think you're right i think and that's why i don't really to get bogged down on this i think that's going to potentially the one the one thing that could be subject to a surprising because this decision this is what the skews was trying to me in two thousand and nine and then the commission decision came out in october the same month as elmhurst came out and i was trying to get them to analyze this under whether or not this was recreational and they if the if the purpose of this if the purpose of the event is could just promote the company it could be you know every every case is judged on the specific facts of this case and i certainly could contemplate a situation where employees getting together after work and polling could be recreational however under these facts that this was a direct directive from the home office for them to engage in this contest so they could win a peabody award advertising of the picnic they were harvesting pictures like they were here to use the promote the company they didn't have her signed release which they had to scream or sign indicating that they could use pictures from the point of bend to promote none of that mean there are so many different business purposes here me just look at the name of the event itself was to promote the company well but he didn't you know i'm missing something here the purpose of this w exhibits exhibits in the record that show that the company at the time was attempting to use this event and others to campaign for the company to obtain a peabody award and other type of o say that we're about three months after the beige book to me that we would suggest to me based upon that example that the advertising is not purpose that that would be incidental to the purpose which is happiness employee softball team were theory of the exact opposite here the activity is incidental to the purpose of promoting the company particularly since there was a mandate that came out from the home office if this was going to be going on everywhere i think what you need to do when you go back and look at jewel jewel purpose that's all i have to show it and if there is some business purpose again then because she was traveling at the time this becomes or whether or not it was reason was a reason well for she will she become a bowling ball yes so the name on the back of the baseball sure is the advertise the company no wonder your theory gets not recreational because part of the purpose is the end retires and true based on employer what i said to you before just soften was if that was all they had that might not be enough that might not be enough but if you take your example and all the sudden the baseball team is playing under a field that says no comes with a name  then promoted by a comp and that's what we would need i think to to really remove this from section eleven i think even then we have to really be careful because we want to allow companies to have these recreational events that whole purpose actually want to and if they want to earn some money to help out the community that they're in i think we also want to promote that and not tonight it was is danceable purpose of this that it was to provide it was a favorite charity and in fact it was had the benefit that the purpose of this was to benefit beehive not the corporation she was asked by council it by the way it is minimal it went out about by coming community gay if you wanted this to be successful that's him because he wanted to show your company's quote unquote dedication to commitment to excellence and compassion is nick correct that's what's in the memo and then counsel goes will he wanted viacom to be a good corporate citizen and she said yes other their office where people enter my consciousness make certain that they're not imposing liability upon behind you could just as easily speculate that that's why they just don't want their employees having an opportunity to maybe suit you hey by the way using my likeness so there's no business purpose community days it was i guess it was a public service and he and he cites that as some type of evidence that we should didn't imply that this activity was being used to promote by common in the crease through business  different than what we see in good it is no different bit you know what we're telling our cone ploy these it has a benefit to the company and what i was going to pick up on that just as hoffman's comment i was going to state that what if we had this picnic out in the forest preserve and they have been around and it says it all stayed company picnic i mean is it advertising now are we now seeing how are we take this of that away from it one of all states said hey we have a little cup here and we're going to raise some money for the local kids school so suddenly that