in patient care as in order to protect their patients from potential disruption of disturbance the question in this case is whether health care facilities work at that right by deciding to assess the disruptiveness of insignia on a case by case rather than categor basis we submit that the answer to that question must be no there's no sound basis for inferring from the decision not to have it all insignia that every decision to prohibit some insignia or even a single item is  presumptively motivated by anti union bias rather than genuine patient care concerns and there's certainly no basis for drawing that kind of inference in a case like this one where it's undisputed that these facilities routinely permitted employees to wear saint john's our exception itself doesn't specifically referenced that fit in our briefs we talk repeatedly about how at the time of our actions they were presumptively legal and that the rule changed in the interim and that the board adopted a new presumption this did seem stiction of question the cases instead generally turn on if you're trying to raise an entirely new issue so for instance you know if we'd only accepted to the polish on board issue below and now we're here trying to accept the sticker issue that's the kind of considered issue that raises a tiny concern the cases i've seen from this court don't really talk about that you can't use shift the basis for your ultimate argument here also an argument really is just the same one you made below which is there's not substantial evidence to support this finding and the problem with the finding is that it's based on an inference that should not be drawn it's based on a presumption that isn't supported by the facts that were actually a do just which is the requirement of what presumptions must be they must  sound connection between the facts that were a deuce and the facts that the board seeks to infer from those so ultimately whether you want to think about it as a question of whether the presumption here is a valid one or just as a question of simply whether there was substantial evidence  this record i think you get to the same result and i think you get to the same result if you think about it too as a special circumstances question because all of those just point to the same problem which is that rather than produce actual affidavits that call into part of that i mean she testified about her experience working as a nurse on the floor for decades working as a nurse in hair administrator and basing it on the judgement calls that she made in that role and the whole point of that expert testimony is that if you do have a concern about his crush feeling and want to question whether her judgment was reasonable the expert witness is there to say i'm an independent expert who looked at this and came to the conclusion that the judgment reached by ms crutch reasonable one now if the board wants to play in that it's entitle to put on its own expert witness who provides a different opinion but on other hospital administrator she say this is crazy nobody would ever make this conclusion it didn't it put on absolutely no actually presented with the letters the board just gave her on cross examination this hypothetical question of if there were letters that to whom people they might lose their care would that be troubling she said yes but when you look at the actual letters that were given to opposite they detail at length we are providing you with this letter because we want to assure you that whatever happens with the ongoing labor strike it is not going to impact your care and that's precisely the concern about these  people who are likely to strike you that hard right yes and again we are objection to the stickers is not that we don't believe residents should ever be able to i'm going labor strife or unfair labor practices it's just about the messaging these stickers said busted for violating the law and there is nothing all had to do is raise the concerns of am i going to be able to continue to raise care here where the letters just they raise that concern but then they answer that concern by reassuring patients we have in place a plan to make sure that if there is a strike it's not going to disrupt your care there are differential sta way of your care but i would like to point you to the supreme court's language in the baptist hospital case and they're the ones specifically admonished the board that it can't just ignore uncontroverted testimony from health care provider about what is and is not likely to disrupt patients when there isn't actually evidence that points in the other direction is money you make of a lot of a lot in your briefing of the notion that the the board's rule restricts more speech than your approach would but you how can you address more i mean there are real dangers of the selective ban and that's why the board adopted a presumption against in that and it seems like some of these interpretive questions active sure let me give you two responses to that i mean i think there are ready ways for the board to identify avid and that so suggests that there's something pretextual and speech related going on instead of go at trying to target real concerns about patient care one is is that a selective band that's applied across the board to the union and that's that's obviously problematic and we're not here defending the notion that if the board had a presumption that said if you allow everything union related and signal you know that then you're going to have a problem another way is it in the st john's case there was evidence that they were it wasn't just that they had prohibited it they permitted other insignia in the past the hospital had distributed a button that had almost the identical message that was on the button that was then distributed by the unit and in that circumstance it was quite easy to say well wait a second you thought it was ok and put it out there for employees to go to her residen to see and now your objection just because the union wants to do the same thing that was similar in this court's decision in the stanford case that's another case where the court looked at the fact that the hospital had put up its own   if you were to articulate what their approaches you know is there anything in the record exactly how did they make those determinations other than in reaction well for one thing it's the nature kind of an what it's like to do for another thing to the extent that there's not a lot of practice developed in this area because up until about a year and a half ago every health care facility thought that it had a presumption validity in this area so we weren't aware that we needed to develop some sort of you know legal criterion that we were going to need to defend in court to defend judgments that a particular insignia was more destructive than others but the things that we're looking to it w the use of the word busted along with a judge's gavel and a clear message this center has violated the law that is what they believe distinguished this item from anything else that had been permitted in the past because none of the other items y of course a president might react negatively to you supporting a presidential candidate different from the one they prefer or not like the fact that there's strife between the employer and employee but there's something fundamentally different about insignia that bears the message of your center violated the law that's going to point in to residents minds concerns about what does that mean what does that mean for my care what is going to happen at the center in light of the fact that it violated the law something that is precisely what miss crossfield has certified gave her concern here and it's precisely what dr warner marone testified gave her concern when she distinguish this from the other stickers and figure that was presented to her and was asked you know do you think these are equally troubling i don't know that you have to go that far stars i mean it is a here's a sticker the size of it i mean if that were on the chest of a nurse who is feeding me i'm ninety years old and i said we have found that any time we do anything that lets a patient or their family see that we have our mind on anything but patient care and to me that's that's what this did i mean this nurse is supposed to be taking care of this patient and what does she have a huge button that says busted but i mean it seems to me that she has her behind on something else and that's bad just goes on to say the ford even though it's the one that creates these presumptions and we defer to it it should constantly be revising those presumptions and it's orders in recognition of the not only sui generous nature of hospitals and patient care and potentially nursing homes where the patients are completely helpless eat that that that they have to in recognition of that characteristic and the characteristic being so susceptible to this rupture and or fear or whatever it is they're trying to do and managing these patients i do agree more with everything you just said and i think that the thing that's fundamentally important to recall here is this is a case about patient care areas it's not a case about other parts of health care facilities it's about where the patients get care for and what they are going to see and that is why there has always been a different role in patient care areas that there isn't in the areas where patients are likely to be priced and that argument doesn't apply to the flyers well the flyers issue is limited to the lounges that's right sorry there's no question about those not being seen read by pressure or that i wasn't on the stickers you said we had no reason to think that there was any presumption against select bans you know until recently when we won about i guess i have to about two aspects of that question what about my comments which really did you know we didn't articulate it fully that way but it but it reasoned against selective to against them and also is there anything showing that there was in fact reliance by health bridge and anything that you can point to you know i actually can't recall whether there was testimony specifically about the try to restrict the wearing and singing and patient areas so i don't think it would also come into play in developing your your policies and your approach in bargaining to whether you want to say you know we're going to have a complete ban because we're worried about these patients and as you say it's an impressionistic in korea and so rather than put yourself in that position you know there are a lot of health care facilities do have a fuller you know what i think a lot more will have complete hands of the role is going to be that if you have anything less you're p may just have health care facilities that are really trying to say our facility is a little bit different than a traditional hospital or for whatever reason we think we can hey could different approach here if they're told that they'll lose all of their discretion by doing that they're just they're  to take another approach if you want to just address the other part of your question i think that the best reading when you look at the most comments cases at least in the proceedings below what was going on was overcoming the presumption and and yes the presumption w deemed overcome based on some things that are somewhat similar you know are human aren't totally different than the ones made here but the insignia in that case was very different than the insignia in this case and some of the things that were said ultimately when to the question of whether it was clear that not being lemons had reserved reverse the presumption it doesn't say anywhere in that decision that it's reversed the presumption of best reading of it is simply it houses at the beginning that there's a presumption and then decides that it has been overcome under the specific circumstances that you're your answer to judge hillard about the objective criteria you said it's sort of or basically impressionistic i don't know how it could be anything other than that because when you take the topic of pornography and tried for years to define what it is and you almost do have to wait until you see it and and it's like you know i mean it's even it's not you can't even define it by content because some of it is the visual images that are with that you know the way in which so it really does have to turn on the collective looking at all of this and as you suggested earlier there just is a common sense almost all of us i don't think it's that hard to look at these stickers and understand that they might be concerning to an elderly cognitively impaired patients i have one more question about the facts and that is the boardman i think the board majority makes an issue out of there was no evidence that residents or family members complained these were only worn for what six hours right now is that it's unclear you know to what extent they were warned they were it's nothing like you know there's a few cases where something has worn for six months with no complaint here they were barely worn at all and it's there's no testimony even about the question of whether they were complaints or just simply wasn't addressed because they were basically not worn in for any meaningful period of in the differences between the implications for violation of labor law versus other forms of law they have no idea what kind of violation of labor law it is how extreme it is and what the consequences may be and what that violation is going to have in terms of an effect is that's why the letters are different because they they go on they don't end with there might be a strike sincerely they'll say the centers you know this is there might be a strike and in light of that we want to assure you that the strike is not going to impact here we've been working with agencies to make sure that we continue to comply with all our obligations to ensure that we can get other people in here to do the job if the striking workers aren't able to do it that's just fundamentally different from raising the prospect of disturb without answering that question but in this interview there is a there is a way in which the more you distinguish those two communications the more content based your line sounds and i do think that's at the core of what otherwise and sort of counterintuitive this idea that you have to either allow you know much speech much employee expression except if you really can show with some concreteness that it's go destructive or not allow any of that so that concern is really that when you're in the in the driver see deciding you know what's destructive and what's not on the one hand of course you have your expertise as providers of health care on the other hand you have your interests as an employer if it's fine for employees to say hey i belong to a union but as soon as they say and my union thinks this employer is treating me unfairly if i actually had to think that that's something i don't think we went that far because i then i think because a resident is not going to look at that and know what the implications are they're not going to know what the consequences are for a violation of federal labor law whether that's the kind of thing that might affect the way they continue to get care or not get care at their facility so i think it's it's it's charging residents with an awful lot of knowledge to expect them to look at and say oh never mind i'm not concerned because they were only busted for a violation of labor law and labor law is just something different that should never concern me but i think the real difference is you know this connotation without any context of a legal violation that to me is something that is categorically different from the other kinds of messages and if you want to i'm a judge now i think it would still be within the discretion of the health care facility to determine the passage was the kind of thing that was disruptive and if the board wants to question that judgment it needs to put on its own affidavits of its own witnesses its own experts its own health care specialists who say that is something that will not reasonably disruptor just her patient also you're way too young to put yourself in the place of a nine year old and so is  certainly you know share the same intuition that many of these residents wouldn't see where it's anywhere on this at all and that that is another reason why it's this particular sticker and the way that it was the characteristics of it that made it different said go ahead i'm sorry your honor may please the court your cantor in behalf of the national labor relations board and i want to make a point just in case it doesn't disappear that there are more to findings with regards to the sick or there is the selective ban that the respondent permitted his employees to wear all the pins in stickers above it all muriel that material times and all places in the facility for each of the health care centers and then he separates out two of the s for banning it throughout the problem center when other stickers were allowed and why didn't why did he do that when the other four according to this stipulation also  and that is these stupid zillah these it seems like the instruction from lisa crutchfield was lost in translation in that what was told to the employees and to a lot of the sits was it was a garbled message that they just couldn't wear bridge that your evidentiary standard is impossible to satisfy without exposing residents and health care facilities to the very destruction that they're trying to avoid and we're honored the the board addresses that in fact in footnote and says you know put out a yes or a that this is looking for specific evidence here and that does make sense because if the board more to have found in their favor the board decision itself would have to be supported by substantial evidence and as we saw in the most recent case addressing this issue washington the washington state nurses association the board found that there had been no violation there and then the ninth circuit said no that your bait you need substantial evidence to support your finding that special circumstances with matt and the evidence offered by the evidence of the board relied on there was not enough and so are you saying that they should have let these buttons stay on more than six hours and patient areas until stanford as well in its sights rock and the board's decisions is that the fact that there ended up being no complaints there were no problems undercuts a claim of special circumstances based on subjective where the people who testified were doctors an administrator from the actual hospital itself who were familiar with the patients that were actually being treated there and that one or two of them testified as to incidents in the past that had led to disruptions and why the ban on solicitation and distribution in that case was reasonable and in other cases where the board has found special circumstances you know for instance another wong was where the union distributed  rely very heavily on their care providers in my film extremely vulnerable and they just say well this kind of you know i know people with impaired i say and they can't necessarily just cern all the details there are people with whatever level of sophistication  the government they wouldn't distinguish between a board and a corrigan labor and you know safety or osha are whatever standards so so why isn't that kind of expertise enough we're on our i think in  case it might be enough what the board found here that she was not familiar she had no interaction with the actual facility understanding of the patient population at each one of these and again it was at four different centers she was no specialist and psychology or psychiatry she was all nurse were intriguing what difference that had me make i mean are you saying she should know that they were between the ages of eighty and ninety or seventy and eighty or ninety and one hundred that they were all bedridden that they were all dimensions they mean beck and that sort of testimony might play in your honor and as the court criticize the court in washington state nurses to just rely on someone at all and a high level speculating as to what might corporate executive whose whose business was labor relations and so she certainly would know labor law and she was was not base that any of these facilities she's a help bridges corporate headquarters so once again that was i can see a difference in facilities of hospitals if you are not in intensive care or in your in rehab or something but i can't see that there's that much difference among nursing homes well your honor i have that would have been something that they could have put on it that what even she says as much i think she is the expert yes ron but each facility could have different population i i believe your honor i have to go back and double check whether these had components or whether these were in fact just a nursing home but there was no testimony again from anyone at the facility as to what the actual  populations were work was everyone at atomic was everyone in very very good help if somebody in the fact that again that there ended up being no complaints there were no disruption the the beginning shift at seven or eight in the morning all the way through i believe three o'clock somewhere three thirty near the end of i guess would have possibly even the second shift of the first or so that and that's something that the board and the court found before that undercuts special circumstances that nothing ended up happening that you don't have to wait for that the supreme court has said that correct or out of it but again if the cases we cite mention that does cut against a special circumstances showing when all that there is is regulation of these parade of horribles and then there is no horribles nothing ends up happening and  again the board found that based on the witnesses here that's all it could do and in whether it had washington state nurses on its mind that that it would be opening itself up to a challenge just deciding on this rather thin evidence because again  accept in that race and there are exceptions to the point that they are challenging and that even though there is a board even though the board ends of discussion discuss an issue as happened here between the majority in the dissenting member pace university citing a long line of c circuit cases makes clear that that's not enough for ten either and he is very specific in that the obligation was on them and as we know in our brief it's not only not in their exceptions but their brief to the board cites st john's in presenting their case as if st john's was the governing decision but there was nothing in their brief even saying we were proceeding under protest at st john's is the governing law and so i think that that sheds light on the board's position that when you look at their exceptions that there was nothing there and then obviously when there are exceptions brief st john's and cited repeatedly and they make the position that they satisfied special circumstance thank you i only want to make a couple of quick points first of all not just hospital there wasn't evidence of specific actual disruption the evidence was just like this it was hospital a health care facility proposed care providers who testified based o experience in general were concerned about disruption that might occur it was no different than this testimony that's dissent on the board pointed out the report also raises this notion of you know well here it cuts against us that there wasn't disruption the cases in against the hospital that there was a disruption it was a sticker there were a button or whatever it was that was worn for several months in one case a full year i believe without incident sure in that circumstance you might have a reason to say hey this actually was difficult position because of the washington state case where it essentially got itself reversed by deferring to a hospital but for one thing i think that the there is distinctions between insania in the washington state case and this one and the other thing i would just know is you know washington state is not a precedent of this court and it is not consistent with the precedents of this court to the extent it does seem to have some language that suggests that anything forward looking is inherently speculative and must be dismissed this court has specifically considered that question and specifically rejected both in the brockton hospital case and in the stanford hospital case the notion that you have to wait for actual disruption to occur before you can try and prevent it there are no questions