winery constellation respectfully request that this court reversed and set aside the board's decision where in to determine wrongly that watch he wrote a racially insensitive inflammatory and offensive phrase namely seller lives matter as an employer constellation has a right to ensure that its workplace does not have racially insensitive speech the board and case ignore the substantial eviden evidence the union in this case had one witness mr sheppard we are not saying that the numbers matter but the substance of the testimony he was the general manager and josh sharp they are testimony is consistent was because it was the truth notwithstanding that the board ignore that when we talk about substantial evidence and the factors that constellation satisfied with respect to special circumstances the board itself that an employer does not have to meet all of the exception only want here but the stand to evidence demonstrates that constellation satisfy three of those factors firstly constellation had a right to and had to remove that racially insensitive back with that phrase on it from its workplace because  anyone who sees blank like mad definitely views it as a rip off of black lives matter in this case the board and l j said oh there's nothing to do what race when you see blank lives matter here somewhat live matter it does and its name black lives matter and represent black people so when someone uses that that is offensive in the workplace because black white matter has continues to be a polarizing entity as far as its name some people who vilify some people celebrate the impact where people have a visceral reaction to it and because of that constellation had to do something immediately want to learn that this is inappropriate insensitive offensive speech existed and it worked so under the special circumstances the st prong was met with respect to ensuring that you did not have any issue with respect to your employees a young a moron that the substantial evidence demonstrates that consolation satisfied had to do with the evacuation of the employee detention against an employee could have reacted badly what consolations opposed to wait until something horrific happen now as an employer had a right to have a duty they are in the ground and black community anyone and that the syllabi could have taken a picture of the back of that vest up voted this is a flag in which we live right now somebody in one of those communities could have seen it and that could have impact is a public image that consolation france has established and those communities and that's why constellation had to have the ability to do what it did because that type of speech is slogan it's something that is wrong so wrong that complicate this case right now we saw it last week our capital pundits the every new comedian when they talk about that what did you hear them say black lies matter move protests that happened last year they talked a little bit about the police and forstmann but what are you hearing blacklegs maddux you pick you out the entire united states so what this board and the a l j to try to on page twenty seven dollars of the board's brief it says that consolation brand did not raise this argument so it shouldn't be before your on of respect with image it was an irreparable love and that's why we're raising it now to make sure that that point though miss miss walker when you say it's in the record in other words there's there's evidence in the record that responds to the l g s finding that the business and its products may have been harmed what is that evidence what specifically do you have in mind well what i have in mind is that each of the witnesses testified that this language was  in the workplace which is in fact not contested and review under that standard employees have a statutory right to wear section seven related insignia or peril in the workplace and any restriction of that right is pres unlawful and the employer has the burden of showing special circumstances through the introduction of specific evidence and not just generalized speculation or testimony about presumed potential harms as the cellar department at this facility had already voted in a board supervised secret ballot election and the majority of them had voted to be represented by the union at the time of the events in question the employer was engaged to the end of that that went to the nd circuit that was the ultimate conclusion the union was not certified that's correct your honor the nd circuit remanded to the board for further analysis due to subsequent proceedings before the board it was remanded again there was a change in board law and went back to board regional director and ultimately the union voluntarily withdrew its representation petition so there was never actually a final determination but i think the significance is at the time of the event in question when this test was born in the workplace the context to that test was that there was this ongoing dispute in the workplace over the union election and the union campaign among the stellar department employees and so as the board found mr chavis after consulting with his coworkers decided to wear a pro union slogan in the workplace with to ames st to highlight the importance of the work done by the seller department employees which those workers thought was under appreciated by the employer and secondly to protest in the workplace the employers ongoing refusal to recognize or bargain with the employees chosen union would understand that as having any kind of commentary on this outside social or political issue rather it was intended to be understood as being intended to have a pro union message in this particular workplace  based on the fact background context of this case in particular and so under the awning review the employer does not contest that mr job as a decision to wear the vest was considered activity or mutual aid and protection within the meaning of section seven of the act as a result he had a statutory right to wear this that and the burden shifted to the employer to establish that restriction of that test which was presented we unlawful was justified by special circumstances under the board well established tests which again is not contested the employer has to establish not just that a particular message was in the employer's opinion insensitive or in bad taste but that it would actually disrupt or be likely to disrupt operations at the employer's facility as the board found the employers arguments in this case fail both factually and legally st as a factual matter the board found reasonably that as i think i've been mentioning the cellar large matter vast and context simply would not be interpreted as having any kind of offensive connotation secondly even assuming that some individuals may find it insensitive under the board's legal standard that is not enough the employer has to come forward with evidence likely disruption which simply did not occur in this case as we point out in our brief  the employer's opening brief is the board of any references to that record there's simply no evidence indicating a likely just for option based on any of the recognized categories of special circumstances under board president and that burden was not met in this case so why not just both parties cite know as bagels and c'mon sue do is the record clear at all between this case and those two cases as to whether or not the slogans that were at issue were outward facing to say consumers or purchasers vs were facing were only other employees would see it yes well starting with this case your honor as we pointed out in the brief mr thomas in his coworkers do not interact with customers at all as part of the normal work there at a large outdoor production area and so they don't wear a uniform or interact with customers and they come out suitcase i believe that that was also a case where the the message in question was internal to the facility which is distinct from you know it's new york bagels where one of the he considerations of the board was that the employee who wore the disputed t shirt saying if it's not union it's not kosher was actually a delivery driver who interacted with customers and so part of the board's find in new york bagels was that the message itself actually disparaged the employer's products in a way that was self evidently likely to harm customer relationships because particularly when your a employer who focuses on kosher food products as in that case any suggestion that customers might view suggesting that the products were quote not kosher would be potentially harmful or likely harmful and therefore important wasn't title to prohibit it in the konatsu case again that was an internal message but the ke finding there was that based on the context in which the t shirts and come out to warn the board found that they were an unambiguous appeal that they register prejudices because they were a overt reference to the japanese attack on pearl harbor during world war two and the employer was not only a japanese company but these t shirts were worn to protest a recent managerial decision to outsource certain production villages over overseas to japan so the key finding of the boarding time outfit was that wearing the caesars referencing the attack on pearl harbor was likely to disrupt relationships between employees and management in the workplace so it as to disrupt the employe operations in contrast nothing about the seller lies natter best attacks the employer or has anything to do with internal relations or operations out the employees facility rather as noted it was a pro union message and would have been understood as such and the only even arguable insensitivity involved a perceived relationship to outside political and social issues which again simply had nothing to do with the internal labor say it this way what if woodbridge simply said there's no question mr chavez that you're that you're what you marked on your safety vest in part or maybe even in the main conveys a pro union message ok but it is a play on words that really can know a lot of racial tension racial pain racial  struggle that is front and center right now in america and because of the kind of double edged nature of it that way we just you know you need it you need to pick a different slogan  because we're worried about unrest in the workplace thankfully nothing's happened yet but that doesn't mean nothing will not happen in further war we're worried that it gets picked up in the various social media outlets and misconstrued so our point is not to question your motive in fact you have a completely lawful right to promote the union our point is that you need to pick a different slogan can i can i get the benefit of your reaction to that if they had handled it that way yes your honor well i would note that is of course very different than the initial reason given by the managers but taking the hypothetical i don't think that that would alter the board's analysis because under board president and supreme court president employees have a right under section seven to choose messages of their choice for you messages of their choice of course as as we emphasize in our breed that is not an absolute right which is why the board has this particular special circumstances frameworks where an employer can come forward and say that this message in particular that our interests in the workplace outweigh the employee's rights under section seven but in this particular case that the employer simply did not meet that burden and so regardless of how it had been conveyed to mr chavis this time i think the board's analysis would remain the same that  of all this particular message and context simply was not offensive and secondly that the info layer had not met its burden before the board to establish special circumstances through the introduction of specific evidence of a likely disruption at this facility in particular and i know that in general that this is ultimately a very fact based determination by the board in weighing the evidence and coming to the conclusion and drawing the line of what is and what is not meaning that the special what is it called the special circumstances to ask that you actually require an affirmative presentation of some kind of evidence beyond the testimony of an h r director so what how would you handle a situation if if m it right it's definitely pro union but it's also commenting on a major and issue of national interest a presidential election in the outcome of the election yesterday and well you know that might be i don't i'm not aware under bo precedent at the board has ever split a message obviously that's a situation where you could say part of the message is totally unrelated to the protected component and so isn't that miss walker's point well i don't think so your hon lives matter movement they made to me you may be well right that in the cellar department that people will think of it as a pro union message but everyone on the planet is going to recognize it is connected to black lives matter well your honor that actually raises a important point which i wanted to get to which is this this question of public image or how people outside of this facility would construe this message the employer did not raise that argument to the board at all in its acceptance to the board and as a result this court is actually jurisdictionally our section tenney of that act of reaching any of these arguments about public image for customer reaction to the to this particular vest so as a  jurisdictional matter i don't think the court should reach that issue but even assuming that it does that argument fails for two additional reasons st of all there's no evidence that mr chavez or coworkers interact with customers or that customers would ever see this vest and under board president is simply too speculative to say to propose a hypothetical or the chain of events where an image of the best could somehow wind up on social media there's no reason to think that could ever  even assuming an in a diff additional chain of of answer is that that happened under board president negative reaction from the public is simply not a valid special circumstance because for example there are many customers of any employer who are vehemently opposed to the very act of unionization that itself is in essence a political issue and that's why under board and court precedent the customers do not have a veto over the rights of employees to wear pro union apparel in the workplace even assuming that employees customers would ever see this image and even assuming that customers would somehow construe i handwritten message on investment in permanent marker as somehow reflecting a door smith by the employer or that that there would be any negative reaction to the employer for something that one of its employees had done in this internal production facility but again that argument was never raised to the board and it's in the employer's exceptions to the board and as a result it's not supported and i see that i'm almost out of time at the court had any further questions about this violation or the black live matter and the history that it represents is absolutely everything to do about racial equality race and all the board to say it has nothing to do with because it we acted in one way and a fight broke out with a supposed to wait to have something like that happen now it showed leadership like an employer chucho and they sure that that speech was taken out of its work which now another issue that was raised in the opposition presentation had to do with the testimony here well no outside person can see that not so we live in a world where everything is online anyone and that its military who thought that be on constellation brands and that's supposed to wait until that happens no in the board analysis in the come up to k and the no word new york bagel king you don't have to wait  in the community as a result consolation the special requests that the court we burst the wrong decision that the board made here by saying that it violated section eight a one when it directed an employee to remove the racially insensitive offensive inflammatory language that was contained