case were guarding an employer ban on your unit significance that's not what we have here and i don't believe that's the question they were asking the court to decide right but frankly what we're asking the court decided simply have to apply its own applicable standards and precedent we believe the answer to those what to both of those questions is yes according to the petition that requests respect we request this work with the petition they keep the board's decision matter to the board to apply the applicable standard as announced in the boeing company decision there is no dispute here that the rules in question are facially neutral there also should be no dispute that the ethical standard for facially neutral rules is the boeing case if the board did not address the standard or attempt to distinguish it it simply ignored it as this court has found silence in the face of inconvenient you me that's that's correct the they needed to be the loser here it is facially neutral rule of reason we construe was overturned and completely up ended and replaced with a new standard which required balancing not just looking at whether a rule could possibly interfere with with protected activity but balancing that specifically against what the legitimate interests were that balancing effort did not take place in this case it was even acknowledged that so going to apply its own rule they issued a decision nothing changed between the time in which they issued the decision and the time of the appeal to the boeing case happened four months before they should their decision and so there is really no grounds under the agency's own rule for reconsideration nothing extraordinary happened while we're saying that the that that the the board failed to apply its own precedent make up a lot wrong and misapplied the facts that's not extraordinary grounds for reconsideration every opponent in every case believes that so we believe that it needed we needed to come here before this court and ask this court to remand and require them to apply the appropriate presence just rewrite the why don't we just write to rewrite the rules well that's an excellent question i think it it actually begs the question as to why boeing was decided the way it was because employers have been were under the prior regime under the looser karajan heritage standard being forced to go back and forth and write rules and guess what was going to pass muster and try to get linguistical police procedure in an area in which it is very difficult to do and employers should not be required to do that this case is simply about can an employer set its uniform standard especially when it has a patient care process and so going back and rewriting the rules and whether inviting whether or not somebody with a union or or an individual employer the board is going to find that example not knowing what standards are going to apply is is asking an employe shoot in the dark and it's not it is not what should be required what should have been required in this case is that the board should have recognized that boeing fundamentally changed the landscape and that the presumption that the board in the union rely on  has to have a logo and the logo house the morning of the designated in the house with the evidence shows that the way the employees understood the rule and we was communicated was that the only real was the uniform one that was provided to them by their supervisor and it  we were thinking about this this is really does the union have the right to replace a uniform item right if we walked into a fast food restaurant to taco bell or something else if you saw somebody who had ate a taco bell hat right because the employer said where the taco bell hat does the union have the right to say no we're going to replace that uniform item with one of our own that's what took place here are there any yes i think i don't see any union reels other money well they're hard to identify because they actually sa that there was an exhibit they did describe union reels they are about the same size there's no dispute about that there's nothing they do have an e k g monitor our type of thing that could but could you know raise the awareness i guess of potential heart failure but that wasn't the issue the issue was this is a uniform standard and if if if a fast food restaurant has the ability to tell somebody what uniform to wear to work as in the w case a hotel gets to say we want to present a certain image when we have evidence based health care based reasons so i just want to be clear about th and other people who deal directly with the patients have a particular uniform they have to wear a place to hold the i d that's correct especially design but they have the option of using a real instead of putting the badge one sentence but the entirety of these two policies together with the entirety of all of the policies and how they were rolled out is how a reasonable we understood them there all the testimony was that they did in fact understand that in fact a union steward testified that she would please the court your cantar on behalf of the national labor relations board your honour's if i can reset the perspective that the company or long beach is present here in this case the board apply it's a stablished court approved jurisprudence that's the civically governs restrictions on union insignia in the health care setting and applying that based on substantial evidence the board reasonably found a violation because both of these rules were clarify that their restriction is applies only in immediate patient why not accept the the hospital's narrowing interpretation and say fine if that's what you mean and you're not going to put it in an order or you won't enforce it beyond the people that are dealing directly with patients and the pin rules will not be enforced other than putting pins on an id badge or and we cite to all of those cases that interesting really long beach sites everybody reads the rule was written yes your honor but the difference is the company at long beach is claiming that this is a boeing case and what is the other professional certification maybe we need to how do you wear a professional certification we're under the professional certification are these pins to disappear and yes so that's redundant while the pins are the as the to evidence shows the pins are the hospital issued pins because again there is in fact no approval process you're the only pins that employees are allowed to wear are the hospital issue pins hospital approved yes but the as counsel just admitted and as the evidence shows there is in fact no approval process it's just what they hand out but  circle back again the point being that we make in our brief the company our long beaches arguments regarding bowling are jurisdictionally bars they could have and should have either before the board issued its decision raise these arguments or afterwards through motion for reconsideration and that would have given the board the statutorily recognized purpose of ten he which is to give the board the board an opportunity to respond in to address these argument as a principled matter they should have raised that argument for the board because then the board could have provided the answer that they're seeking and again as we show in our brief the board would have said no it is not in in our decision in this case as we show in our brief does not rely on that and i want to make one more point because it's also in their reply brief and so we have not had a chance to respond to it they argue in their reply brief that they were precluded from admitting appendix page six thirty seven where they said that they made this argument to the board and they're citing exception three and in fact the exception three of j a six thirty seven says nothing about the l g improperly excluding evidence so that argument would also be barred by ten he and then to the substance of it they cite transcript pages to twenty one to twenty two where they said that their counsel was discouraged from asking relevant questions and the question that he was asked about was visitor badges which are not at issue here and the exhibit that they say was improperly excluded was an exhibit a study and the study of the testimony shows why they were trying to introduce that exhibit was why they got rid of lanyards again not at issue here so i did want to address that because this is our only time to address that point and if i could circle around to one other point is that that judge randolph touched on they could rewrite these rules and narrowly tailor them we're in a world here in the health care facility where employers already if you will get a thumb on the scale because they can issue rules that restrict employees rights where insignia in if those rules are restricted to immediate patient care areas those rules to individuals who have direct patient contact with that be a valid rule no your honor because the that to get the benefit of the presumption they would have to make clear that that rule applies only in immediate patient care area that's religious at all i thought you said only two immediate care providers well and while there are yes vibing yes the companies although it would be it's the st john's case that was discussed in this court's decision in health bridge where even if it's presumptively valid one way that it can be overcome is if they have allowed some insignia but not others essentially the question would then be does it apply again in immediate care areas or not and so that's the fault with both of these rules is that on their face they restrict employees right and then the second question is they fail to make the  when you're dealing with direct patients well but otherwise you can take the pens off when you walk out of the room into the corridor and put union pins on them it makes no sense at all while you're on of those two points one they could write the rule to make clear that employees can't wear union insignia pins at all time and so that would be the end of it or if they want to avail themselves of the presumption of the validity they could rewrite the rules to make clear that when the patient care restriction only applies when you're in a me and in an immediate care area you get asked your honor's point i mean we argue in our brief that the ward law recognizes that the fact that employees have to take an item on or off does not mean that that that burden back says that they should just not have the right to wear it at all because it's inconvenient to them that still carves out a sliver of time where they can exercise the statutorily recognize right the  by mr abrams said on behalf of petitioner that there was no grounds for filing a motion for reconsideration because this was not extraordinary not to apply boeing i find that to be an incredible the right to wear union insignia verses employer society justifications for restrictions on that right the board found that there were rules that issue were on their face unlawful and it looked at the hospital's arguments for special circumstances and rightly rejected them as not overcoming the right to wear the union insignia so the long and short of it is doesn't make a difference board clearly held these were not based on substantial evidence these were unlawful in their face and i should just note that boeing did not touch upon any areas of board law were such balancing is already for extraordinary circumstances just this point in raising it for the first matter first time in its reply thank you thank you for the petition to have any time remaining idea that there should have been things listed in the exceptions is extraordinary they won the union and the board and the culture from the general counsel people to the board so there would be no reason to for us to preserve any rights once the actual cases i went to the actual board decision came out again there was no change circumstances that would have prompted any any action from the employer but i want to address this idea that the special circumstances test applies the bonus standard it simply does not boeing completely changed the landscape it flipped the way that we look at all rules cases any rules hey should go under boeing there is no carve out his council for the union suggests for sydney or cases the special the special circumstances is not balancing one right versus the other it's whether it and seeing and the level of infringement it takes as counsel for the board has nurses can and do regularly wear union insignia in various places they can wear it in their jewelry they can wear in their hair they can wear it on their stethoscopes they can wear it anywhere they are routinely doing it in patient pairs and outside of patient care there is