the first case on for argument is whole foods market group certainly or account on them now now you ready to go ready to go thank you thank you your honor good morning and may it please the court before the court for review is the lawfulness under the national labor relations act of the no recording policy at whole foods market whether the whole foods or recording rule is reviewed by this court under the board's decision under lutheran heritage of the board's more recent decision under r conclusion must be that the policy is lawful because the express purpose of the policy protects what the board has called the very essence of section seven rights which is open and candid communication and it does so free of what the board itself has acknowledged is the chilling effect of recording in fact the board reached its decision here and was only able to reach its decision here by ignoring its own precedent finding that employees would reasonably construe a policy to apply to the lawful purpose for which it recites by ignoring its own precedent that acknowledges the chilling effect want someone trying to record something in furtherance of activities yes your honor and in fact lutheran heritage and a whole panoply of other board cases say that the limits or can you think an employer can are an employee from using corning a quiet man to record a meeting even if it's an furtherance of section seven activity not only do i think that your hon the board thinks that the board said in flans flextime the board is a special op the born in this case the board in this case purports to be applying and does not disavow its decision in flagstaff remember flagstaff your honor is a circumstance where we have a hospital with a no recording policy but that's that with that's because there's the countervailing problem which we all run into i think everybody in this room runs into having to do with and the protections employees acting in concert ought to be able to record in furtherance of those in furtherance of those activities and why does this policy why can't this policy be modified cut back to some extent to exclude those s then comes in conformance so these two questions your honor get is to the heart of what the problem is in this decision trying i know you are your honor we've given a lot of thought so let me share first i want to just analytically point out that flagstaff and the board do not ever all argue and it would be consistent inconsistent with decades of board authority to say that the exercise of section seven rights is unlimited or unbridled and so i have all sorts of section seven rights that get limited i can go back to a few others are interested but the cases are earlier in the brief and we can talk more about that analytically the second section the question is what is the section seven right we are protecting historically the board has said this section seven rights what we mean by that is the ability to communicate about terms and conditions of employment not what is the best way to more realize those communications just thing corning's constitute section seven no your honor and let me get to that i'm not saying they never do i'm pointing out that for the first time the board in rio says that recording itself may be a section seven right and the board says it's protected we're it is concerted and where going back to judge question why can't authority because the board says that that kind of savings clause that kind of prescription that doesn't work under section seven of the act and what is particularly frustrating about the board's decision here is not just the rule with any reasonable listen any real world uplink ability so for example the board rejects add of hand those situations that whole foods most things most need protection where private for finding a policy lawful or unlawful and the present decision ignores prior precedent and gives no real world guidance as to how you could question we don't know might be quite the consistent with the board president this policy is lawful and the only thing that makes it unlawful if you conclude it does is carving out and telling us what that car about is because the board hasn't and it's very clear that the board is not to carve it out save for a general savings clause that might say none of this is intended to impinge upon your right to engage in concerted protected activity that's insufficient the board would find that insufficient and that's quite clear on  it can't be that there is no set of language that might operate to need to tailor the prohibition that is here that i think by your own admission is so bought that it would capture any recording of any kind have recording in of itself being concerted protected activity is pretty rare so what we're preserving is memorialization and what is at risk is the fact that i could have a conversation that i'm having about an ill child i could have a conversation in which my determination of my behavior is being discussed by my peers recorded by me there were thousands of interactions that take place and the has swept them all aside for the chance that we're going to have concerted protected activity recording that is outweighed by those interests or from all sides that say that prohibition is written is overly broad because it captures sections of an activity not saying that there should be no prohibition whatsoever on recording it's just that the way it's drafted currently is overly nice or you're wrong or what the board said is that there was and i'm quoting now the respondents business justification is not without merit but is based on relatively narrow circumstances such as annual town hall meetings and terminations of pale panels and is not nearly as persuasive or compelling as the peace and privacy interest in flagstaff it does fails to justify the rules of unqualified restrictions on section seven activity the board has never previously said that though the standard here is flagstaff nor does it explain there is one sentence your honor and i just read it in which the board justifies its rejection of the rule under real implied stuff thank you i did your honor thank you if it's more comfortable for you will go down yes thank you very much your honor good morning so can we start you perhaps focusing on whether the company nonviolent actions sure in these instances and in these cases the board doesn't issue advisory opinions as to what would be lawful but nonetheless in this case you can look to what the board said and when it makes its rules by adjudication in the series of cases it has done what could be something i can't speak for the board here but what could be changed about this policy that would more narrowly tailor it so that it didn't in compass section seven activity so for example one of the problems with the rule is that it doesn't specify the town halls and the the types of meetings in the information that is mckenna was talking about the board didn't say that's not important the board just said that in this instance employees who are talking not in one of those meetings about sensitive information may believe that recording their manager speaking to them which the board in the d c circuit has said constitutes protected activity can be swept up so it would be a more narrowly tailoring the language of the wall to the employer's legitimate interests which the board recognized here in recognizes in other cases such as flagstaff so the other point that i'd like to make on that is it's true occasionally there have been k there been cases where the board has said in some rule that if employer just puts at the end of the sentence but this doesn't protect this doesn't rather infringe on section seven activities it might not be sufficient if employees who are not labor lawyers do not understand what that means so  the key here is that the burden is on the employer in these instances when there's a charge file that the board that there is language that can chill an employee section seven right to demonstrate that the employer is legitimate interest overrides that in simply put this rule here did recording with their phones what i'm saying to them so i mean i don't have a problem with the the general concept but the board's holding it you know interferes with an employer's ability to do that because of the possibility that there is a chilling on section seven so isn't there some way to work this out but i would say that going to  the holding of this particular case and rio which is not all recording is protected activity it's it would please recording is protected activity if employees are acting in concert for their mutual aid and protection and no overriding employer interest is present so your example of your law clerks in discussing cases with privileges that come with that would be illegitimate employer interest what the problem is in the case here inhofe from reading the policy you know in the pretty manual with all the drawings there you know it's in whole foods or it seems to be trying to encourage a place where employees can have open and frank discussion i think it's a fair argument that they're more likely to engage section seven activities and that if they are to worry about being recorded that they're going someone's going to wrap them out to management because they're saying something that's anti magic so i do think that you know there are some positives to this but hand i understand that that it's a blanket on the right the concern is the chilling effect on section seven the get swept up in it and it doesn't really chill section seven activity or just eliminate one tool in the case which was upheld by the d c circuit in the stevens case the what was held to be protected concerted activity in that case was do the planning to record a conversation in the actual recording itself and because it is not merely memorial tion this will does sweep up actual protected activity no it is true there's other protected activity employees can engage in that doesn't include taping or recording or taking photographs but is the recording itself the protect the the board's decision in this case in rio is that the recording itself not only is the recording itself it cannot be the protected activity but that in the instances when the recording is part and parcel of the race just die of the protected activity you cannot have a rule that would sweep and they prohibit it without the narrowly tailored employer justification is like the ones that are here work give or give me if you use the parameters of what makes the recording protected active sure the the recording is protected activity because the employees under section seven are able to know i want to say is this protected activity or not protected it's it's ok judge to decide or every employer is to decide whether it's protected activity or not these are the factors you have to look at and they are they are are the employees working to tribune where employees about to go in disgust questioned or interrogated by an employer about a disciplinary matter where they think they're allowed to have a representative present and they believe the employer is not going to let the employees have representative present so they decide we're going to tape this meeting so that if you if my colleague is told that she cannot have someone with her we are going to be able to demonstrate a violation of the national labor relations act case that kind of a quick word you use protected activity under sections that's correct and in fact are there any others before we get off before we start to get sure that some of the examples are given in the decision so if an employer decides we see some safety and health violations that are occurring we're going to get together and decide that what we need to do in order to advance for our cause that there is this safety problem we need to have it on tape we need to have a  document that there's not a guard on the slicer so that when people are working in the dell and section they're not cutting their fingers off correct and all the employees may be able to discuss it among themselves and communicate among themselves it doesn't mean that the act of recording is to can they individually doing this or they have to act in concert saying wherever two or three are gathered in the name of safety then we will they'll be able to record it when the board has a lot of jurisprudence on that and it's in this particular standard as well which is it's protected if they they are acting in concert for mutual aid and protection so is that a necessity yes for yes it must it must be a necessity for them to engage in that conduct and to have it be protected concerted activity and so in this instance like to emphasise that the board didn't dismiss out of hand any of the employers concerns but merely said as i believe your honour's recognise that this is not narrowly tailored in the interest that employees have in their section seven rights was not outweighed  by by a rule that would have reflected the employer's legitimate interests and again and for sizing here the standard of review which is that the board given that it has seen so many cases and in its expertise analyze what which either a different different people at different times have disagreed under the circumstances of this case but i'd say here in such a close call your honor the the yes that is that that would be what the with the board's position is and again even this instance it might even be a closer call had there been language that was more narrowly tailored that wouldn't chill the employee's rights under the and so for all of these reasons i see my time is running out we would ask that you enforce the board's order in full thank you care so what's the problem here the problem is that we all have this gut sense that it would be great if you could more more realize things that you think affect your concerted and protected activity that's the truth that's what we all think but the truth of the matter is as judge chin's question indicated this is really a question of what's the best treat here and the board prior to its decision in real never said that recording was the best tool in fact its decisions said the as we know recording communications has a chilling effect and that's not the purpose of section seven the purpose of section seven is to encourage spontaneous and open dialogue this court has to decide under the existing board precedent is that precedent faithful to the act you have seen or briefing we think neither lutheran heritage nor rio is faithful let us assume but let me yes your honor but i just go back to my trial j their counsel this is not a way for privileged i find choking they talk about their prospective real estate endeavors they talk about pricing policies they hear all sorts of information that's that's the employer's proprietary interest saying nothing of the employee's concerns about privacy around their terms and conditions of employment so when you're going to review this rule and we are talking about real candidly not honest for the board to say that the it is entitle to deference in this case because even the board says the recording policy is narrow it's considered a protected activity but it also has to be balanced against the employer interest the community in the workplace interests here the board in this decision did not even attempt to explain why this rule was not entitled to protection the board doesn't explain there is one sentence one sentence that ignores the record evidence here under lutheran heritage under real the standard is not to we have a level of pride to see interest in flagstaff that's not the standard the standard is is there an overriding interest and the action is whether yes the rare occasion where are the actual recording in in of itself would be concerted protected activity and so now the board didn't attempt to give any explanation of why only of the record evidence that talked about the sensitive and proprietary information that occurs day to day at whole foods is not entitled to protection and should be swept aside in flagstaff or didn't have any problem with that i want to record a doctor stealing handbook for hamp its employees from disclosing certain proprietary information so you don't need the recording prohibition to be able to protect there is some your honor but it is now as i recall it  situations where you'd be taking pictures of company product stuff like that but there are ways to protect that type of information that you that you have identified as sensitive separate and apart from a prohibition on recording which could disclose proprietary information it's very clear that's not going to fly before the board the board is going to assume that that taping is concerted protected activity the whole problem with the board's decision here is it is driven by this sense we ought to be able to protect under pure recording those circumstances where someone is more more realizing engaging in concerted activity and that's really what we're talking about here but even if you fly the board's decision in real this policy ought to survive because the overriding interest is present and the evidence was in the record and the board did not discuss it in this decision thank you very much i think you're right well argued we will reserve decision