and we accepted that specifically as well as accepted to the findings associated with that in fact if you look at the board's decision the l g s decision on this it starts its decision by saying that the only issue that was litigated was the issue of whether or not the dress code policy was unlawful or not it's specifically says in the judge's decision that the judge didn't deal with those other issues it was only after the decision came out the record was close that the judge in that case then came forward and said you know i looked at the law i looked at passive on and my initial reaction was wrong so now i am going to go into an analysis of that even though he said in his very the general counsel here the board here really only takes issue with the question of whether or not part of our argument is was raised and that was whether or not we specifically claimed at the boar took exception at the board to the notion that we would load it into not producing this evidence i suggest you there first exception covers that that's what we when we said that these issues were moot they were mooted because the a l j as he states in his decision did not even litigate these issues and that's the exception we took to the full board and that's what we have are you saying you told the full board that if this issue were considered on the merits you needed the opportunity to submit more capricious that's assuming that the record that's there is a record you accept yes yes on this record take the record everything went just as if you still think they got positive are wrong you'd like us to reverse tax it absolutely and indeed that is my second my first argument is is the one that your honor just mentioned that's the primary argument the secondary one is that this issue was never gated in full and so secondarily if the court were to say we're wrong you know the law is is what it is reduced what the board is we suggest it should be remanded for that reason but i think the core of our case just so i understand what what we've how are you prejudiced by not having an opportunity to put evidence in what's the kind of thing that people weren't able to put in the not quite understand so let me give you as an example what we did put in on the dress code right and then i'll compare it to the other cases in the address book just as to what would be relevant to practices it's not that we had policies that expressly restricted section seven rights it is that we had policies that in the ports if you were in big u s and could reasonably  if there is a difference between that your honor perhaps one of the reasons that we're not making much of it in the argument during our brief is the very fact that at the tail j level there was no way that it's submitted of those other polic they weren't litigated as the judge said himself so i do think could reasonably be construed as a tougher standard for them to me and when i talk about the pins issue in a moment i think that that becomes very very  relevant returning to my primary argument your honor which is they misapplied the possible factors i point the court's attention to cases like roy hill and rivers ag where they talk about the board itself talks about the fact that you have to look at  we understand that that rule that we had previously was via live and it's no longer in place because only then do we have confidence that the employees will understand that the employer is not going to take action against them under the new rule that seems like  just as an abstract matter a reasonable because this is to take and so i don't not quite sure why it matters whether the workplace rule was actually restrictive or whether it was violent just because it would be understood or could be understood to be restrictive here here's why it matters your honor if you look at the case law there are cases before the board and perhaps even court cases where not all of the possible factors were satisfied and in fact in those certain cases cited in our brief with  court where the board has said you don't have to apply in mechanical way you've got to look at what happened in this particular case and if you look at the facts of this case i would suggest to this court that they're very compelling we had a case where the the union representing these employees filed a charge alleging that a number of provisions were overbroad my client over the course of months worked with the board to go through a line by line revision to this handbook there's no allegation that those handbook provisions unlike others expressly expressed limited section seven rights it was purely a question of whether or not they were in big u s enough that they could be construed in that way and that was mike brooks who's no evidence suggesting a policy that the n l r b certainly could adopt which would be that whenever the workplace but rule is violative only because it could've been understood rather than because it actually had a chilling effect there's no need for repudiate well but that's not the allergies this in so i guess i'm trying to figure out is for us to reverse the n a large b they had to have done something arbitrary inconsistent with their precedent read the present actually conflicts with that or that the actual logic of it is arbitrary so i don't understand what what you're arguing this is to why we would reverse as opposed to why you might not make a good argument for the n l r b to choose on its own to adopt a different policy changed to the complete satisfaction of the poor but this deck would go through in every case in which repudiation is required i'm sorry i missed that in every case in which repudiation is actually required right the true statement file did file a charge here and but there was no evidence from a union official who testified or an employee that testified that there was any perceived ambiguity on the part of any employee so been in the view of the fact finder or the board ultimately and in many cases river's edge is an example the kindliness factor was not satisfied but the board still said it was an effective repudiation you know in that case i think the repudiation happened well after or well into the case maybe the day before the case was tried if i'm recalling correctly and so the timeliness factor there according to the board didn't matter as much because other elements in the facts of the case made the we issue them and then conceivably not have to litigate them according to the judge's own decision and the discussion which is part of the record as the hearing began and then at that point when the decision is issued a finding is made on your times almost up but i want to to property the board stated basis that there was no evidence of actual injury or actual harm to property i suggest to you misses the point even the a l j concluded that in fact it was obvious that pins would pose a safety harm or a potential damage to property and if i understand the record right correct me if i'm wrong my understanding is that that bar on in the hearing what those people do the record demonstrated that those people were in and out of the vehicles all day long depending upon what their job was but this does the record show whether any person who doesn't come in contact with the public exists there was no question about which categories of employees in the record don't come into contact with the public if the records is silent about whether employees like that exist or do not exist well your honor i don't believe certainly the dress code policy or the line at issue before you here i don't think that belt buckles or dress they're rare elsewhere in other words that provision doesn't prohibit an and the evidence but you see the argument doesn't encompass the message like that's correct so i think there's two pieces one is the safety and the heart property and then the second part is message clothing and the piano as i think i point the court's attention to the w sandiego case in particular i think that case is very analogous to our situation where the employer there banned any kind of of buttons or pens because it was going for  projecting a certain kind of professionalism and image to the public well there it said it was trying to create the wonderland experience is that what rock condos trying to put it not wonderland you're on of and certainly i think the record shows that the record here goes beyond that when we're not just saying well we have a policy we're saying we have a policy we're saying it's been in force in force consistently for years we're saying that we've spent millions of dollars each year promoting image of professionalism in a highly competitive industry and anything that detracts from that image hurts our image and our relationships with our customers so it's developed more in our brief it's a fellow more in the record we what's that not everyone who's who in the uniform some people can wear in my right clothing in the room selection eight the record shows that here's how it's broken down the service techs and the service advisors i believe they have to wear the uniform the salespeople have the choice of wearing either the bok polo with the box label on it or they can wear a suit and tie and again that goes to the image of professionalism so there's an exception for that group certainly that no matter what the message would be you would be allowed it to them at all times like a nascar logo on a tight with a nascar local law logo on a small logo throughout the time well i don't think that that would be allowed on the policy because i think it would be viewed as a message clothing problem promoting nascar now if if we had ties that said block honda that might be different but i and i think the record testimony was it didn't matter to us what the message was and that was not controvert it's that anything that detracted from that image we're trying to present thank you thank you  litigated below but the company essentially did not contest below and is not contesting here that they in fact want to form the company below excepted the fact that these might be in the ambiguous the there was board policy is is not to get necessarily the employer off the hook by letting them avoid litigation the policy of the board is to effectuate the purposes of the act which is to protect employees section seven rights so  framework that it that is recognized the board can find handbook provisions unlawful for several different reasons the analysis used here was that they would be reason would be reasonably construed i  wood that is the standard but again importantly below the company wasn't contesting that these were unlawful s to both the twenty ten and block and as to the dress code which was in twenty ten and the twenty thirteen while the company did not litigate that would reasonably understood this case is essentially about whether they carry their burden of an affirmative defense to find that there was no unfair case with these facts while here and i mean by requiring repudiation requiring repudiation of the strong kind that the boards in your choir which would be an affirmative statement that we knew we were doing wrong we're going to that's because in all litigated cases you're going to wind up at the end with a notice that the act was violated that the employer acknowledges that they file it at the act and importantly that they promise not to do that again and that puts employees on notice that they have these rights that i think we've got the question is did they did they then have to say oh by the way we apologize our previous in book might have been misconstrued that what you're saying here absolutely are that yes that merely working with the board so that when they published the twenty thirteen handle and again that's accepting the dress code which they did not change in piece a why why why is it reasonable to require that additional step of repudiation because otherwise your honor the purpose of the act as i outlined in passive and are not satisfied that the board by working with the parties here to hearing also involve the second issue which is addressed but both issues evidence was a deuced again evidence had to be used by that the court was on them we'll never get to the repudiation issue if there wasn't a in we engaged in a violation so you say in the case in which it was litigated there was an order in a finding of harm imitator was evidence that the employees had been killed as there is not here you say that the requirement to say we and they did not do and why but what purpose is served in a situation like this when they have voluntarily complied with the rule in advance of any finding initially that they had committed a wrong they worked it out why does the board now require them to say and not just that we changed the rule but we're changing the rule because the old rule was illegal well your honor it had already been alleged in the and that's the foundation of the complaint was that this was unlawful it's not that you fail to  honor the timeline of when that union was decertified none of that is in the record high is the so i cannot speculate as to all we know is the date that the charge was filed that the complaint was filed that the new handbook was issued and that the point the or just working with the board is certainly the fils one of the purposes here is that you get employers can come for the board and they can work with the region too if they're going to reissue a handbook work with them to make sure that when they reissued it that they fix any potential problems but here they had already been flagged for having an unlawful handle the charges been filed the complaint was out there wanting the employer to have to say not just here's a new rule which the board has blast but that the old rule was illegal what does the what's the purpose of requiring that importance of saying that to spell that out for us why is it so important to have the employer say that not just here's a new rule that is a good rule but the old rule was illegal rule well because your honor t prizes employees of their rights that the employer had violated them already and that going forward the employer is going to respect that the employees are on notice that the employer had done this in the past to saying that they're going to do it the future and they're on notice again if this does happen ok so that seems like is the general policy that would apply as a default almost all the time when there's a violation yesterday so what is in the special circumstances as the board sees it when we might deviate from that rule and allow an employer not to repudiate in that strong sense would be what you are there any your honor my understanding and it's addressed in a footnote in response to a quote they made to our case handling manual the board essentially just not allowed not essentially not admission employer to remedy unlawful conduct but at some point not putting out there that they had committed this unlawful act and lawyers can essentially get out of jail free without notifying their employees that its argument that you know we're being very technical mechanical here and that that what they did is just what the employers did in those cases and that's just patently not true in reverse then the employer cancelled the unlawful increase in milk prices it then reimbursed in effect employee and it posted notices that the increase was unlawful and as the mail she found in that case implicitly assured employees that it would not do any other increases without first bargaining with the union and employ hill we have an employer posting notices that the supervisor's conduct was improper assuring employees that it would not interfere with their rights in the future and explain what the employees rights were none of that here we have a new sixty seventy eight page handbook do that we'll find we would concede that you repudiated over them offering to them such as posting you notice that says the prior policy was no good no you're right i don't believe that happened below and i don't believe th the or generally would at the point where the litigation has man's if if it's certainly entirely possible if while working through that and walk and again accepting the twenty dress code which they would not change if they the charges file you keep going then the and again the these are might be non record discussions happened between the company and the region where really good was the record so about what that meant that the board signed off do we have any will i think that the that there is no on but there was no then subsequent allegation that there was anything wrong with the two thousand and thirteen handball except for the dress code which they wouldn't change so by working with the board a party then is certain going forward that and i should say the board's regional office is then assured going forward that there's no problem with what they're about to put out i would like to address then the dress code which and again as  question searching out here this was once again a situation where the company essentially didn't dispute that this was unlawful the question then became whether they carry their burden of showing special circumstances so again the burden was on them to show this similar to the issue we've already discussed this was not a case where the general council was out there having to prove he's wrong lawful the company adopted the position below that ok yes these are unlawful but we have good reasons for these and as to the dress code specifically addressing first the public image issue what the board found there under the standards that an employer must demonstrate both but deliberate cultivation of a particular image as part of its business plan and that the limitations imposed are tailored to protect the image without overly impeding employee's rights will somehow let you know i'd like to know how this particular thread which by the way from what i know interest in protecting this image but it is a statutory right as the supreme court has recognized it has wrecked and as the courts have recognizes that and as the board has long recognized for employees to wear union paraphernalia while at work that that right doesn't stop the moment you walk on your employer's premises and so that there's a balancing that goes on here and when an employer wishes to restrict that right and again here the restriction with regard to the public image that the board found was on the one hand they did not put forward this a very strong case in terms of that deliberate cultivation of a very specific image and on top of that the restriction here was blanket that it applies to all employees all public facing employees at all times director on a case where anybody is interfacing with the company this is a case where people are interfacing with the and i think that is very different from republic aviation which is in  people are not facing the public and it doesn't affect certainly not and that's the balancing that goes on the problem why we don't get to the balance in here is because it's a blanket ban and if you're saying they didn't do enough did so deliberate cultivation of the image or in the way that would be affected to the a l j his decision and pointing that out and and exceptions must be specific and must be detailed and they did not make any exception saying we need the record reopen to introduce evidence because we didn't believe this was going to be lit d and they point to the stipulation as showing that they were logged into this the stipulation was just the general counsel agreeing that these unlawful twenty ten provisions were no longer in effect not that they had been repudiated and in their reply brief they say overall if you look at our exceptions brief we we make this law of argument there that's where we talked about due process the point that they made in their exceptions brief which is not the proper place to raise it but in any event they raise they argue that they raise there but importantly as they admit in their footnote in the reply brief there they said we were not on notice that the remedy the notice poster was going to be have to be posted at all of these facilities and therefore that was improper and indeed the board pick up on that and overruled the a l j on that one said you only need to post this notice at the one facility and if i may just briefly note they point to the general counsel's memoranda those are non binding on the board the general counsel issues those in his discretion but they have absolutely no weight on the board's findings of fact or interpretation of boring law thank you thank you