permits a couple of the a one issue is where the facts and law don't mash at the outset i would like to began your honour's by stating that this case is an apple demonstration of the rapidly deteriorating deteriorating conditions in a workplace after a work stoppage the lasts two months even between had players and employees that have had twenty five years of it positive workplace relationship and the importance of the labor laws that govern that relationship now turning attention on our st issue there was an issue at the trial with respect to response counsel that was made at the time being permitted to keep the of the testifying witnesses until the conclusion of the hearing for the purposes of cross examination the judge did not commit this i cited him or precedence that was precisely on point and he smokescreen and the cases they cite their interest are i just i would just like to back up we're not talking about the board here our court precedent requires you to demonstrate and prejudice and i didn't see prejudice argued in your brief did you just argument if the court will indulge me and take a look at this is a bit of a smokescreen this is a classic rule standard debate a rule defining a triggering condition and a consequence a standard allowing for consideration and options the board continues to say well you have to show prejudice but the fact of the matter is that this is the board was unequivocal in their that the the trial counsel was entitle to keep it until the end of parents the prejudice and the types of cases were prejudiced need be shown were the admission of hearsay testimony or or the admission of cumulative witnesses not something where a specific rule was violated and the penalty could be done straight that wal mart and the board tries to point to the case and we manual ve we believe that the sump left location of the rule here makes infinitely more sense and is consistent with boards law not interpretations of manuals  offense under under state law i believe it is now and i know it is in florida your honor i know that it's a very much a minority rule i believe there are only six states that have such rule but i  a reasonable expectation of privacy and in this case you know it was a it was a long haul a long discussion with i think all of the mechanics and he began in the beginning in saying you can tell the union everything i'm saying here and repeatedly throughout the talk that he was giving he kept saying you can tell the union that you can tell the union when you tell me he told they could write it down so how would you argue that he had a reasonable expectation of privacy because of a disclosure to the union well obviously we want to forget that the opportunity to make  we raised the objection the judge stated blackletter well for the board did you raise an argument as to why this would even be covered by the statute why would never reason once but patient privacy under those circumstances i don't i do not recall that argument being in the or is it in their brief to us i don't recall seeing an explanation of since he repeatedly told them they could write it down and they could share what he was saying with the union i didn't see in arguing the bravest away he nonetheless had a reason why expectation of recognize a state law when it comes to right to work there so there is no reason that the slight burden of knowing few states evidentiary requirements would would burden court proceedings here turning to the most asked for remained on october th of last year anticipating this very dilemma and we were denied and then ironically the board stated on the th of august that they wanted the issue suspicion that his biggest is protected union activity was the primary motivation for discharging him and i don't see any exceptions in that on the grounds that the employer would have discharged  anyway even assuming that that the union be that there could be a showing of a motivation related to protective activity well yes you are i believe i believe the exceptions do do employer to know that it would have fired the individual anyway and i mean this is not a kids or someone who is using her van language and getting a warning so it it would be important to have the of so so i guess the question is do we have anything any exception because today o j is square alliance right line that says look this is the  way we do not think judge rozas considered completely and his decision the the right line factors and nor did he give us an opportunity  the discussion he was definitely fired i would say he was definitely fired for that statement i'm just talking about how the conversation no no but i'm saying it was let's just say there was there was salty language insulting greeks so here i was i was noting your word that it was severe conduct and we're just looking at that we're not looking back at this but it seems like that type of language was not so near it seems rather commonplace i heard a lot of it  a homophobic basis you know obviously i mean sensitive but the nature of the comment itself isn't sort of the routine insulting banner that might have gone on between two of the employees every day on the shop floor if he had insulted him in english it might have been different and that will obviously i mean it depends on what you say your honor he said the same thing in english if you say the same thing in english it probably doesn't have the same if you met it meaning ok so it's because he said it in greek that's what made it severe the nature of those words in greek yes one of my colleagues have anymore national labor relations board your honour's i'm certainly interested and willing and in addressing questions about the substantive unfair labor practices the seven violations of  one violation of eighty five argument so far has seemed very focused on the procedural questions which i am more than happy to i like to ask you about the things would not be the same statement feelings that we had here things will just get more formalized is that a threat well your honor that would be the good that warm family relationship then starts sounding like the colonial parking case that the board cited that the good employer will be messing up join a union from phoenix well your honor messing up they're making a mistake but that doesn't necessarily imply something is going to be different to be a mess and something  up but nothing we have nothing else other than messing up i think looking at the totality of the circumstances here in important difference is here we have the company president who is a person and looking at the tablo before the court everything that ends up spinning out at his direction or by his own actions him during a conversation not about the strike bringing up the strike and saying if you guys go on strike things aren't going to be the same things won't be the same i know i know you're referring referring to things that happened a month or more later and here i'm just wondering on when we normally when we look at context in which  context on this and they were well your honor at the board so it wasn't necessary for the violation here the fact that everything came later the just the substance of the violation here is looking at the circumstances the board in that this is an implied threat it's unspecified reprisals the board made an inference here that what le scarse was talking about is not that things are going to be the same they're going to be better it's it's that what guess we'll talk about that we might have a disinterested ear here as we're sitting in virtual court but that an economically dependent employee is going to pick up on the implications of words such as if you go guys go on strike things aren't going to be the same and said they didn't see any testimony from and i'm sorry i'm not saying right now is because about how he reacted to that comment was interest in the mass and the question  disqualification but it sure would be some relevant evidence that if he had sent something you certainly would have argued it is relevant evidence to show how employees might reason one way might react so i was just curious as to why it just certainly is curious that you have this fairly ambiguous statement there's no question to one part only one employee heard it and there's no inquiry as to how that person imus i mean this is reasonable reacted to it and then we get we have to start hunting in a month down the road to look for context to transpire backwards in time to inform that sentence that well you know i don't think again the board didn't say it was necessary the board certainly in footnote seven points to circumstances where it's it's it does that and it's fine to do but the board's primary finding here and this is sort of what we talk about in the brief with regards to progressive that the board here made an inference that what he was talking about were get we're going to be negative consequences and i don't think the company naperville's ever argued that what he was talking about were things were going to be better so what the what so maybe we're at the knife's edge here so the board's inference here is that this was he was talking about negative consequences and the reasonable tendency would have been for an employee to pick up on that that this wasn't an implied threat oh indeed i mean putting issues he was curious started the conversation by saying if we went on strike things wouldn't be missing so it doesn't seem like a big struggle to see that there is substantial evidence a o j to find that it was in reaction to and and adverse to the notion that they should go on strike no i mean i take it that's your position yes honor i think that that that's what the board articulated here before that point that it makes about it it not being necessary to to look at how everything else plays out here   i would love to if my colleagues are fine on that point i would like to ask about this question about g m and and in particular the board's position and remit is warranted honor i so i would have to you know if i know we just looked at the exceptions here i you know looking at how this played out v the judge did this right line analysis and then the companies defense he then sort of analyzed under it landed steele and as the board pointed out that that that was not the way to do it that when you have this misconduct that's part and parcel of the protected activity you don't do right line it should have just been in atlantic steel analysis the counsel for naperville excepted  to the judge is right line an analysis if my recollection is correct and i the atlantic steel stuff and i believe consistently throughout this i  i might be confusing this maybe with a different case but my recollection is that counsel did throughout this argue that it landed steele was was was a bad task that it privileged horrendous conduct that should not be tolerated the only in terms of and  the employer also talked about right line but only on the st prong and didn't say you know and even if given that the l j i mean it seems like it has been preserved and exactions right that the employer says you know look my position is that we were acting in response to protected activity that exceptions clear and then you know in order to preserve the issue that g m makes relevant it would also have had to say and you know even if even if we had this is a kind of thing for which we fire people all the time and in fact we've a policy against you know foul language in the workplace or speaking you know with interact and support mission to supervisor but there's nothing in the evidence regarding that so i'm just i feel like we're a little start to i mean are we are we in your view in a position if we disagree with the board on from my experience this certainly instances where the board asks for depending on the nature of either the whole case or an issue to come back based on a change of intervening law that happens and over the last few years has happened with some regularity in the board acted consistent with that here these issues about what we're not preserve sort of gets into the arguments that would normally be made based on section or bought whether the court would have jurisdiction to consider those arguments because they were or were not raised at various times well when you well we know it's mean that it was fairly clear that if it seems like remained would be futile because on the record it would be irrational for the agency to reach a contrary decision we do that in a ministry of cases and i don't think the boards an exception  we do that is an exception to the re man rule and unless the board planning to allow all kinds of new evidence him and maybe that's what the board's planning to do but if they're playing to decide it on this record and if i'm just just just hypothetical but if we were to think that it would be irrational on this record to find that the firing was not unfairly we're practice applying the right line test where there is no evidence that they would he would get line analysis and that the board didn't address those challenges because it went right to atlantic steel i don't recall it well one of the problems that we've had is that the appendix and the administ record do not contain the employers the exceptions brief exceptions themselves and the only part that i see them every do mustn't focus on  into any any argument that it would have taken this action in any event even apart from any punitive animus it's just not in their yes you're i would have to look at the respondents or the company's brief in support of exceptions i mean certainly at this point not necessarily having the foresight maybe to prepare for that line of reasoning and that would sort of be presupposing what the board would want to do in terms of of barring the company from making any of the arguments that it that it had made before without again sort of looking at what had been argued before and counsel i know will get a reply and what you're saying about our in the company for making the arguments i made before this to the point about what could happen on remained that basically that that there's that this case would come out the exact same way before the l j correct and the m j set this is the governing tests right and later it turns out the board says otherwise but when when that l j says this is the governing just and the that it's not interested in atlantic steel or isn't this back for a redo under the right line which as i read the record was already litigated the st time around but it was not ruled on by the board itself  didn't address the a l j i see so it could go back to the board on the existing record and just say four or we can say it wasn't preserved and therefore  well certainly i can't say if this were to go back to the board i can't say whether the whether the company would file a motion to reopen the record or or whether the board would ask for position statements or might just an attorney filed a motion to reopen in get a letter on th the company filed a motion to reopen which the board through its executive secretary did to die because at that time of the record the record had been filed with the court so the board no longer has any jurisdiction over the case under the act so that motion would have to be upon we can remain and of course at the conclusion of appellate proceedings because the record would have to come back to the board for it to exercise  certainly the board always has an interest in having it its orders enforced this is a discharge where the board obviously always takes great interest but in these kinds of cases where there is a change in the law  it does ask for it back to analyze i've had some experience with this i generally there's not an opposition to it the parties usually are interested in the change of law because it's often favorable to them obviously i certainly stand by our briefing on linux steel as being a strong case under then existing board law well we're talking about a discharge of employees there and a lot of time has passed i can't predict what will happen when it goes back to the board the the board certainly could solicit position statements from the parties i've seen instances in that happening the board could decide pleadings in this case and say ok i'm looking at the party's arguments about the right line issue we're now going to decide the case just based on those pleadings everything's there the board could decide to send it back for further hearing if it thought that more evidence was warranted but it is true that essentially the case was sort of litigated on right line but based on the company's defense the l j sort of turned the affirmative defense into an atlantic steel analysis and then as the board pointed out based on what the company's argument was you don't do a right line because pre general motors the board was not pulling apart protected activity and misconduct occurring during it it just sort of lumped it all together and analyzed whether the misconduct was so egregious but not how in general motors the board us said for a lot of concerns voiced by this court and other courts that we are going to pull those apart and we are going to analyze this under traditional right line where the general counsel make his showing to the board the board will then the then the burden shifts to the affirmative defense and there's always the sort of pretext bounce back to the general argument and to the clerk that we previously provided the requested for answering brief and reply brief i can do that as soon as argument ends your honor i think you i mean certain words while the board certainly sort of internally if issue isn't raised in an exception then it won't generally address it that so for instance you know the party hasn't accepted to a finding by a judge and then the board adopts it in that case then maybe you get a motion for reconsideration afterwards generally absent some extraordinary circumstance then the board would say it's been it's been waived by not raising it to us may be an intervening change in laws an extraordinary circumstance and the board's ability to consider issues like that may be greater than our ability to consider issues like that yes your honor certainly and again that sort of depends how this plays out i've had experience that runs the gamut when a case comes back sometimes the board does ask for parties position statements and sometimes the board does not sometimes party some of the many ways and sometimes then the board just decides it really depends on what the board wants to do based on what it sees on the record and how the case was litigated and i certainly can't bind the board's hands and commit it to one course of action or another and i'm sure counsel would have his own strategy if the case were to to go back on this issue i thought the clerk asked for these bridge the other day but for the record i think it's pages twelve through fifteen of our brief instance report of exceptions covers our right line appeals and in my opinion exceptions twelve dollars thirteen cents would cover that a finding that that behavior was violated company policy would be inclusive of same thing anyway  one that judge millette mentioned had had the quantum leap analysis where they analyzed conduct four months hence and attributed it backwards in time  the idea of how what a reasonable and ploy react to that and the statement things will not be the same it's possibly the most a marvelous and he could i don't know about cockeyed optimist statement that things are going to get much better no i'm sorry your honor i'm not saying that either i'm i'm saying not the same may mean exactly what it says it's not that's it is not better or worse it literally sets they didn't even buy the credit testimony there was not extensive count a conversation about this her thumb up the price a t shirts made maybe he meant that they have to make the shirts in the future i wasn't there either be worse than what was said your honor he was still buying the t shirts in the course of the conversation that took place so i don't think he was trying to change that policy or make it more burdensome that time