discharge for employees in retaliation for protected concerted activity i will address three top topics in my oral argument to that first v i o j we need we applied the federal rule of evidence nine zero one standard for authentic emission of an audiophile recording which prejudiced the company second this entire matter was improperly instituted because general counsel late solomon of you norbi lacked the authority to issue the complaint finally even if the subsequently appointed general counsel ratified the complaint the ratification process was procedurally defective as a result the l g s decision was not supported by substantial evidence and should be vacated with respect to the eviden there are two issues with that argument by the board the first issue is that the board's rules and regulations included the answer as part of the record and the board points out that its rules require that court precedent as well as d c circuit precedent and walk earworm arrow in amber sand that say that you can bring objections to the board in one of two ways the first is as your honor just mentioned in exceptions brief and the second way to do so is through motion for reconsideration but the cases you cite for a motion for reconsideration of believe are cases where the issue arose in the board's decision itself so you only way to raise it was in the in a motion for reconsideration but in a case like this where the issue is in the season to the board's decision as to the reason i don't want i don't believe that those were at issue in the board's decision i believe that they were that they were not raised at all actually in those cases and the court in both of those cases said you should have filed it in the exceptions but in the alternative you also didn't file it as a motion for reconsideration so in there they were stating the proper standard which which we followed here we think they do have a regulation which says you have to raise it in the exceptions i agree that so in order for you to prevail don't we have to strike down that regulation applied to this case i think you'd have to read it in concert with the requirement that the answer in which we stated our argument is part of the record and asked so the idea of the intervale in case law and walk  remember oh and an ampersand in which the courts have stated that you can also file a motion for you since you stated this in your answer before you raised this in your answer before the a l j yes or not the board correct and you raised it on rehearing with the board correct your honor now that's a little bit like trying to go to the supreme court saying well i raced something in district court and i raised it seeking in bank but i didn't raise it before the co appeals just doesn't make any sense the board is the decision maker and you just presented this to some functionary below them and then you presented it to them after they made their decision the  the board also require provides for extraordinary circumstances and in this case there was again not only did we cited in our answer but on motion for reconsideration at that point  this circuit and the nice circuit had ruled on general counsel solomon's authority at that time so we were raising new law to the board we have cases suggesting that intervening precedents do to extraordinary circumstances and in any event this argument was clear enough to you that you could and did raise it before the ael j we did raise it there and we believe that it was part of the record so we didn't believe that it was unnecessary to to raise again before the board and we believe that we appropriately filed a motion for reconsideration to the board and allowed them to consider it the other the there's case or supreme court case law that also states that the purposes of exceptions and and objections is to put the board on notice of potential arguments and we believe that in filing our answer we we appropriately put the board on notice of one potential argument for the board to argue that they were not on notice is is really a misrepresentation because in the interim general counsel griffin did ratified before the board decision so they were certainly on all the time make arguments to enable j and then narrow their cases they go up the chain and make some but not all of those arguments to the board yes so the fact that you press this before the a l j and then didn't press it before the board if anything suggests exactly the opposite well you say you were giving it up we weren't giving it up in fact we were preserving the argument for weight or for weight or argument when we did so and we you're recording and its integrity prior to mission that did not happen here it said judge landau's admission and significant reliance on the audio recording without exploring the necessary factors for authentication is reversible error the relevant case law in the circuit requires an hobson's of bad faith and alteration and strict proof about the circumstances in which a recording was made or the chain of custody however the board in this case urged more of a lenient standard in which a participant in the recording could testify as to the voices on the recording and and the circumstances by which the recording took place you basing your argument on rule nine zero one but all that rule says is that authentication requires sufficient evidence to support a finding that the item is what the proponent claims it is yes or pretty open ended seems to give the trier fact a lot of discretion but then the rule goes on to talk about authenticating voices and it says all it says one sufficient way to do that is you have an opinion identifying a person's voice based on hearing the voice at any time under circumstances that connected it to the alleged speaker and here you have the two main protagonists i think not nunnery and kneel down on both sides of this dispute give testimony the yeah that's what was said and the cases both on the board side and the circuit side your honor all have the following elements would i believe are important here the person who actually recorded the tape was present to testify that was not present here the second element is the idea that the other side meaning our side the company side what in made no arguments with respect to the integrity of the tape and we did this was a sixty minute ordeal recording which was admitted to by the board and it was altered down you want to argues you argued that portions of the tape were unintelligible and you argued that portions of the tape marked transmitted but there was no use that that long block quote that soon the briefs was an accurate transcription of what was said there were ninety eight instances where the audio recording was inaudible and there was also testimony by mr you one who was the proponent of the audio recording that the recording he provided to the board was sixty minutes long and the recording that was played at that hearing was twenty six minutes long so what our argument was was and there was testimony that all of that other stuff problem was was that we didn't have the recorder the person who recorded the the tape to come in and testify as to why that why that audio recording was cut down what else was potentially cut out of  recording for example in the portions that were in order of all we have no idea why they were inaudible whether he shut the tape off whether he moved away for a particular reason and part of the testimony by by mr nunnery from the company was that in one section of the audio recording in which he was in or out of all mr neal and telegraphed the idea that these employees were going to engage in a slowdown an intentional slowdown on the next day  recorder as i just indicated the more time yeah go ahead and as i indicated not only was the integrity of the audio recording important but it ultimately led to credibility findings with respect to the company's witnesses and those credibility findings were formed the basis for the determination that that the discriminative he's did not engag slowdown on on the next day if you were to take the tape out or the royal court and out of out of that hearing the credibility determination has largely go away and important way and if if those credibility determinations come out what we're left with is findings by the judge that the discriminates he's were in fact working slower on the day of the alleged lowdown and additionally there are there are portions of the judge's decision in which she indicates that mr miller went on behalf of the union was not credible and that was independent and outside of your record i see are three minutes left i want to reserve the remaining time for under rule one of two point four sixty two and she a party needs to raise innes exceptions before the board and issue or it is there after waived the board's procedure for opposed to social motions which is one or two point four eight is for extraordinary circumstances and reserved for instances where for example the board suicide on tame issues ruled on an issue that the parties didn't have a chance to brief as judge castle points out pointed out typically intervening case law is not considered an extraordinary circumstance and here can argue that it is there was aware of this claim it put it in its answer and thereafter seem to have abandoned it even if this court believes that it does have jurisdiction to consider the claim a properly appointed general coun unfair labor practice to the time for filing a charge there is no statute of limitations for filing a complaint so richard griffin did have and he did have authorities actually the complaint about time so that their argument  taking thirty minutes to to move a car off a train and she found that that was wholly without merit she did so by discrediting the company where this says she credited current employees has some testimony to testify that the reason things were going floor that day was because of crew configuration she found there was disparate treatment the strain had been released late numerous times and no one had ever been disciplined or discharge and the company also failed to follow its progress of discipline so if you look at the opinion when she when she described as their affirmative defense she does not use that audio recording even if the court were to find that   two issues that the board counsel raised the entirety of the while the judge does state that that she relied upon other testimony the entirety of defense in this case about the unlawful slowdown stemmed from the ordeal record of the recording and the credibility determinations made by the judge on the audio recording that's the first point on the second point with respect to not followed by general counsel griffin here namely a complaint that's issued must be issued fourteen days before a hearing that didn't take place here the hearing had been closed so while there is no statute of limitations and we do acknowledge that the hearing by a l j when there have been closed for a year and a half by the time general counsel griffin allegedly ratified the disagreement of general coun solomon the the ratification does not revert back to the original date it's a new ratification so if the court buys the argument what was the appropriate perce context here is that each of them should have been provided a full complaint and an opportunity for a hearing on the on the on the new complaint so the only thing that survives here is an  g decision which is based on an unauthorized complaint from from mr solomon g c griffin never went back to the judge and said wait hold on your your decision was based on an unauthorized complaint so reopen the record and i'm going to send you the ratified complaint you never did that so not only did mr griffin never allow each and the opportunity to respond