the board's prior precedent in these areas without any reason justification but we have an overarching argument that covers that if this case and that is simply this because the employees activity in this case which was sprawling and happened on and over time sign up she posted on the employer's official bulletin board as a threshold matter that was not protected under the national that is there is no question that the face of standing would be an independent reason versus discharge and there's no question that that's one of the primary reasons if you look at the notice that was given to the employee though about his conduct  decision makers in this case easy to williams never consciously allowed other supervisors for example to go on and use this term never consciously allowed employees to get away with this  or no there is nothing in the record affirmatively on that in fact that most discussion of apparently a radio in this particular mate's department appears to have all male employees some of the male employees were offended your honor which is what brought this to the employer's intention in fact one of the employees of the wrote down during the interview process and started crying in the summertime not to do overtime and yes it was one of those people and any women that would have seen any evidence that women would have been in the area women are in this area there is no evidence in the record you can see enjoying fenix at twenty you can see it from the fact that two women actually sued the employer who were employees about the  that's seem totally traffic doesn't answer the question how we travel by home and so much as in an area did you put evidence in the record that's what i really did you put evidence on the record that women were in this area in the record that women could come through this area i've said be direct with your review of stars your question your honor there isn't anything in the record that says a certain woman definitely power through this area men that usage may not make the epithets and he was offensive to women on account of gender if in this post or if this posting had been up for forty eight hours as it were had detected it originally anyone could have walked through there please the court gerry cantor on behalf of the national labor relations board the board would asked the court can force its order because williams did not lose the protection of the back and that fine and reasonable and supported by substantial evidence  picking up where my brother the bar left off the board would be and as we do strongly pushes back on its argument that it's answering brief a price the board of the argument is making in front of the score that the boards should have in this case accommodated each title seven state intake discriminations that there is a very specific we're asking the board to to essentially a comedy of their statute that that's a very specific claim that they've made very well in their beleaguered motion for reconsideration so they knew that arguments but they did not fleshed out at the time that they should in this similarly goes to the board's finding that this is a case about discipline arising from the protected content of what mr williams did that this is not a defacement case and that goes once again to the notice that mr about this is the word used here was exactly the same or the functional equivalent of the words and this is the telling word for which we were just held liable under stating this from a nation of laws for creating a hostile and  environment that c e o law by a court in west virginia and if you will against us here we're not going to be able to police foul language like that how did that not put them on notice we're on  think that puts the board on notice in the sense of the analysis that it conducted as to the employer's legitimate concerns here balance against the employees rights but to say then that the board needs to reconfigure its entire is there will st of all the brief none of the atlantic still analysis or has to count in circumstances of the board's actual analysis under all the factors stands unchallenged in from the court what's ten need is though the argument they're making that this words this decision needs to be denied foresman and sent back because they asked the board at the appropriate time in place to reconfigure its jurisprudence to accommodate essentially they're asking this court what the board is considering in  there that argument is you read it you understand the argument that they are making the argument that they are making in their answering brief on those two is essentially reiterating the fact part of their brief where they say we were really concerned about this that's why is that responded has not raised any issue not previously considered we're trying to sort out circumstances and he agrees that respondents very motion for reconsideration has not raised any issue not previously considered as you said they very well briefed in their motion for reconsideration the c e o if you will now can he say that they have been raised in the issue that wasn't previously considered if it hadn't previously been presented to them we there was a lot of discussion earlier about the record here and what the record to the extent your honour's are interested in it otherwise all you'll back the balance of my time because i know it's been a long day for the panel when you look at these over time  we need to have to worry about us the record shows that indeed that this is subunit sub shop or mr williams work that bale j looks at all the names that were on the to sign up sheets and he says well there's three that have it could be you know one gender or the other terry bobbie and i think there was one more mr williams testified when asked about the names on these over time sheets one of which is because that everyone on there was all men millette you were asking my brother at the bar about earth he was talking about how long this was up in women passing back and forth what the record indicates is that mr williams wrote this at the end of his shift and then it was brought to and it was already scheduled to go the next day so it was not up there for a very long time there is nothing that had been up for forty eight hours to be different i don't think that would i was just curious as to why they thought that i am g something's up there for such a feeding time they know nobody but the supervisor who tears it down season that's one thing but that's not what was argued here so i'm not sure why you get to use racial or gender epithets as long as it's not for very long while you're i think that goes to the board looking at the atlantic steel and looking at what their interest would be certainly as we point out in a footnote in our brief there's nothing wrong with them then taking the stand i mean the governing question in this case is what i think my reading the decision of the board right that every single day this could get written on the paper again no your honor i don't take an activity as part of this continued i activity that seems a little odd will know your i don't respect we don't think so because it certainly did this did not come out of the blue this was not him raising a personal right out of the blue that this is part of the units if you went up there in written anything else to distract them aren't in the sense of people knew what this meant when people refer to it ideally yes of course we would have wanted them to have picked a the oppressive bore some other term but in the context  of insubordination or repeated bad conduct as some of the cases where we have multiple instances of graffiti or vandalism before after an employee is warned that changes the calculus all of these cases weren't there i'm just asking you whether they were wrong when they sat they might have other explanations like we've over taken that was a one off other presidents ever taken for the explanation they gave was we've never held days always unproductive yes your honor and i think if that's wrong you know the board is correct in saying it is never help that i think when you look at the language there of the judge the judge as adopted by the board in united artists was conclusion turns on the sound like a hole in the proposition that the writing of graffiti or deface in the employer's property as a means of propagation of slogans is under no circumstance is a protected activity and therefore the threshold is cont did in that case and indeed in that case he found that the graffiti and there was in the unprotected the content of that because it was obscene offensive and he also as the rest of that sentence makes clear he talks about is clearly the board emphasizes in a footnote in this decision when talking about this it says even to the extent that the judge here used this very strong language he also there are findings in here consistent with the loss of protection analysis and  this way then make sense when you look at all of these work cases the the company wants to stop we want to song it would be like any old verbal atlantic skill case where you can find a dozen cases where someone said something in a loud voice or aggressively or made aggressive movements and just because in some cases that loud aggressive language was found to have cost you the protection of the act and just because an other cases you retain the protection of the act it's not that the board is honor i have never litigator the picket line misconduct case but certainly it's true when the board under atlantic steel looks at the location it does look whether this was in the supervisor's office whether it was out in the open one of the factors of atlantic city looks at i mean this is almost your quintessential or school industrial set and this isn't a little rolled aluminum manufacturing on the floor of the shop and in that is employers interest here as a property interest and had an interest in its overtime system and had an interest in not having this to face but the question is as i'm sure all of linux feel that they don't have an interest in not having their properties or racial maybe would be a slightly different case that goes with the notice this came out is that it was written at the top that was like the caption of the sign up sheet and they know that this is something the employer puts out the sign up sheet i mean certainly are you distinct interest  focus a lot on the bulletin board aspect of this this could have just as easily been taped to a wall or a door or what what else was on so the religion board that they have here is the bulletin board itself the pin is actually  fate on the outside of the glass because employees are expected to write on it what else was on board to them there are photos and i believe there were notices to employees they have there might have been an o h i mean certainly if i don't think we could just do that this is where the employer posted notices to this group they were expected to look and learn about messages the lawyer wanted to communicate to them yes i mean again this is a misconduct case this is the board is not saying here that there is a right to go into this that is it's a question about whether this was so egregious as to be indefensible and as to justify terminating mr williams in and that brings in all the protections of well established labor law in the board's very reasoned analysis under atlantic steel or totality none of which again the company i mean it's on it's add on the st part of the argument and i think very strategically decided not to we as the employer you not approve of harassment and one harassing insulting conduct to stop this employee came up and replace that message in a factor with if we think you can ever use the phrase horse beach in an argument the born