in your argument about that point how these cases are being recorded for the purposes of sr and us in writing any opinions that come out of the proceedings today and if you get away from that microphone we lose your voice so you want to stay commonsense workplace policies were promulgated in response to union activity or applied to restrict section seven rights the question here is a hypothetical one would employ a reasonably construe the heritage you'll see that it flip flops all over the place it draws hair splitting distinctions that are impossible for employers to follow acting chair the n l r b philip miss camaro in the william beaumont case which is  by the board in his dissent as laid out all the reasons why the lutheran heritage standard should either be revisited by the board or repudiated by the current the circuits and what the board did here your honor is exactly that was the point i was just about to make your honor is that just by reading lutheran heritage itself you see that the board there in two thousand and four approved work rules that ensure a civil and decent workplace exactly the questions you have before you today the lutheran heritage majority found that work rules are necessarily general in nature and typically drafted by and for laymen not labor law experts and it wasn't going to require the employer to analog all the possible exceptions that would protect section seven rights that's a far cry from what the board did hear what the board did here is flip lutheran heritage on its head and it's adopted the dissents reasoning in lutheran heritage that since labor matters or so called did affairs with intemperate language flying about that civility rules violate section seven it even goes as far to suggest that t mobile has to put the relevant legal statutes in its employee policies turning them into a quasi legal treatise for laymen looking at t mobile's for policies and the board's hypertechnical flawed analysis how did the board commit era to principal ways first it disregarded the plain language of the four policies their common sense meaning ignoring the fact that they don't regulate the content of the speech they regulate the manner in which employees interact with each other managers and we did not appeal them because we believe dunn balance that these four policies were the policies that were really it was absurd for the board to strike them down and and that now the union and the board are trying to bring those other policies back in to that this case that's dirty pool and it's dirty pool for two reasons let me tell you what first it assumes the policies all interrelate there are three separate documents here there's a code of conduct there's there's a book there's a computer an information security policy they don't all interrelate no employee reasonable employee is going to sit there and thumb through and compare policies only the board lawyers and the union lawyers are going to do that i understand i mean we're talking about these a standalone policies yes there are they're not in the context they're not judge in the context of any union campaign there is no anti union animists on the part of the employer at all as far as this this appeal is concerned otherwise i don't know that that's right or ours record is considered a hypothetical question and so it should or it's and so what we're taking is that if the union anything that in the kind of government regulation in which some expression of opinion is violation of the law i mean you've got to put context in context is critical your honor and i'm going to turn to the policies in a second to go through the context but let me just say big deal about what could happen well could is such a broad word anything could happen i guess but would is the standard and here the board just deviated from its own standard it used could instead of would in analyzing these policies and if i could ask the and civil manner the d c circuit recognized this in the ad grants case it are very address the board's position and rejected it that forbids an employer from promulgating a broad prophylactic civil policy that to maintain a we have oral argument here is this is inappropriate that we should not have oral argument i mean so my colleagues might think that's not a bad idea but how far do we go with the word argue your policy says the employee should not argue with each other well how many how far do we go with that that's iraq and just broader that's a great question if you look at page nine that's the cut the conducting business the code of conduct policy in the in the excerpts  says gives a lot of context to what this no arguing and fighting with coworkers subordinates or supervisor is failing to treat others with respect or failing to demonstrate appropriate teamwork it's under a commitment to integrity section and it says we expect employees to exercise integrity common sense good judgment an act in a professional manner well we can't anticipate every situation the x below are unacceptable the seventeen items listed number fourteen is the one that has the no arguing or fighting it's clearly embedded in a rule with a lawful purpose bearing no relationship to section seven the natural reading of that text prado is that there's no verbal fisticuffs there's no physical fisticuffs that in light of the mobiles policies here our goal is to have a civil workplace no harassment no discrimination no troublesome employment complaints were not only subject it wouldn't wouldn't it be covered in with those terms and not have to use the word argue i mean can we maybe leave out the word argue and say it's covered with these other terms when put in context your honor i think that argument here argue we're fighting it's clear that this is part of a laundry list of really the seven deadly sins right of things not to do in the workplace sleeping during work hours dishonesty fraud theft criminal conduct they're all in the list of seventeen employee a reasonable employee would read this and understand that this is not the kind of disagreement that you and your law clerks or your panel members might have discussing a case or in the workplace discussing union matters there's no evidence in the record that the mobile ever discriminated against anyone for a union activity or perth prohibited anyone from exercising their and not doing gauge and and inappropriate conduct with each other or something of that nature and one of you got to go and name fifteen different acts your honor traditionally this is the way employers have possible to the employee who is reading it or when a situation arises to give guidance to the supervisors and managers of the human resources per people who are not lawyers in the company to know how to apply them under the facts so you want to is interpret in this says there's nothing about wages there's nothing about personnel issues here that that's being discussed it doesn't say don't argue about about section seven topics and you know the tired all rationale that the board puts out to support this is is that these are labor matters or always have to be heated affairs with intemperate language that the d c circuit just rejected that out of hand in that branch they said that meant working men and decide is whether it's reasonable for an employee to inter interpret arguing prohibit strong disagreements with coworkers about labor issues that what we have to  honor in the context of all of the rest of that policy i'd like to turn to the no recordings rule if i may which is that tab three of the selected excerpts page fifteen two key points about that first the boards it's a newly minted section seven right that they proclaim to to record in the workplace it's just another unexplained n l r b jurisprudential flipflop not not entitle to or didn't know about deferen from the one nine hundred seventy s all the way to twenty fifteen in the flagstaff case it was clear no recording was not protected under section seven it's provided no reason justification to deviate from the pen telephone of the bartlett case where the they said that surreptitious recording in the workplace actually undermines section seven rights and why you have to give context of these things are cars on record in an employee discipline and course of the union campaign for recording wages that were posted on the bulletin board you did if you took any kind of conduct against him that in my view would be clearly in violation of title seven so a recording can be argument because your argument is that there is no title seven no section seven right the record i'm saying there may be well even if there is and we don't concede that there is the valid purposes for this rul it's up in the second circuit right now on appeal but if you look at the purposes of the no recording rule you'll see that it applies only to people or confidential information in the workplace and is limited to preventing harassment maintaining privacy encouraging open communications and protecting confidential information which is exactly exactly baked right into the rule any reasonable employee would construal the policy to be limited to those eric white's on behalf of the r p and i'd like to begin just by sort of emphasizing was actually at issue in this case this isn't a referendum on the employer's ability to promulgated prophylactic rules that prohibit harassment hall sharing of customer data or even a referendum on these particular rules the only issue before the court is whether this specific wording is permissible or whether the border section seven and that we also have and what i don't know because i don't know what the the the case law has been on section seven section eight see rule and that case the supreme court struck down the rule because there was no an awful intent or there doesn't need to be a lawful intent but if an employer enforces a role which would seal employees don't exercise their rights that saying you may not do this it does not fall within section a c if the employer works you provide their opinion on the union or something along those lines that falls within section eight c but as the supreme court has recognized for example in the seven no your honor an end to that question and also perhaps to address some of judge jolly's concerns from the earlier argument i would take issue with the notion that the board prohibits civility in the workplace or respectful conflict in the workplace if you look at a lutheran heritage case which is the governing standard that case indorsed the d c circuits and trans decision and the board has endorsed elements of that decision in other cases and the board often up holes employer rules which prohibit certain types of disrespectful conduct i think the william bowman case is a great case for the court to look at where the board found that a few rules were  but it also upheld several rules which go to the type of interests that the employer is talking about here for example in that case there was a real with prohibitive router just condescending conduct and the board said that's perfectly fine to have that type of rule because reasonable employees would not read that language and be confused as to whether it would apply to section seven activity but if you just have a rule which talks about maintaining a positive work environment it's unclear what that restrict behavior or even attitude this is a rule which was the limits the ways in which employees can communicate with each other can communicate with managers and the only standard that employees have is this notion of a positive work environment and as we point out in our brief the board has consistently found there's no flip flopping when there's a change in the partisanship of the board that rules which for example prohibit negative conversations or negativity our own lawful because section seven activity is often involves negative aspects and the employer you know keeps emphasizing that the board used the word heated in its decision that these these type of debates are discussi become heated that's not the boards where the supreme court of the united states has used that word and the supreme court has frequently recognized that a necessary element of collective bargaining and section seven the right somehow in the just in the ordinary context no union anywhere within a thousand miles of a plant and you have a rule that our employees should avoid all he did arguments the government from washington can come in and tell them you can't say that's great advice to me that that that borders on everything that i think the first getting going on anywhere there's not fault and this is where the rocket that you need i'm not any you not given to going through the mind of any single employee and the labor board can come in and tell the employee you can't is because you need to have to think grist on which concerned activity dry and which is these preliminary types of discussions where for example employees get together and they have a grievance with a manager or with certain work rules and they want to criticize what's going on the workplace and that is the precursor to any time of any type of more formal union activity or formal protective concerned activity and as the supreme court has recognized in the cases we embry's you need to have that kind of three in open communication because otherwise you can't get to the more concrete type of concerted activity and so if an employer has a prophylactic rule in advance which says you cannot engage in negative communications and if there is a threat of terminations if someone violates that rule then reasonable employees are going to read that and they're going to avoid the type of communications that they have as a right under federal labor law to have the regulations think coverage of customers clients coworkers in management but in the board only found that the latter two are lawful so the board's holding is specifically limited to restrict in communications with coworkers or managers so if the employer had just had a rule what's with the first two disjunct of terms that presumably would have been lawful because as we find our priest there's the board is often up health rules which which prohibit disrupting you know for example to employees business or interfering with customers those are the types of rules that are lawful but if you just have a vague overbroad mandate that employees communicate with their coworkers and with managers to maintain not really before the court to second guess is whether a reasonable employer would be chilled in the exercise of their rights and such turning to the specific rules in this case i think you know granted the deference that this this court to the board to the core is not performing analysis to know though the board as a reasonable fact finder was fully justified in finding that all four of these rules would be interpreted by reasonable employee as applying at least in part to protected activity and so the only the board's findings is that this specific language is unlawful and the only remedy is that the employer has to revise the wording it doesn't need to eliminate these track which is the law of the circuit in the board is not sane just test it has declined to do so in the william boman taste so this sort of standard remains this reasonable employee  how do we get the balancing test your honor since the general lutheran heritage framework does not involve a balancing test but the board has created a i guess a subset of that test in the specific context  courting banner according policy because the board has recognized that there are situations where you have overriding employer interests which would prohibit recording in the workplace for example in the flakes test case if you have a hospital with patients all around you  highly sensitive medical information that's the type of environment where you could for him get all recording because of the risks outweigh the section seven rights but in general the loser heritage framework does not involve balancing except in the context of the recording policy so if it's for three of the rules here there is no balancing but for the fourth rule there are the recording and the board's position is that overriding employer interest can just justify a recording thing and that actually is a good transition to a point i want to make about the recording policy which is basically the only argument that the employer has preserved and that's properly before the court is the argument that this is a total ban but there are overriding interest breath because first of all the board has submitted an outstanding motion to strike this argument that there's no section seven writing caging recording the employee did not raise that it's opening for us in a way that argument and secondly this argument that employees would construe this you know based on a recitation of lawful purposes as not knowing what it says and not being a total ban on recording that was not raised before the borgen so under section twenty of the act it's not properly before the court so the question there is whether the interest set out by the employer justify a total ban on recording persons a total ban on recording workplace discussions a total ban any kind of recording in the workplace as we point out on our brief i gather that this doesn't cover t mobile store where you're showing someone how to use the phone and take pictures with your phone or use voice mail and record  phones today you take pictures with your phone and you can record with a phone can can can you in showing a client how the phone works not be able to take pictures or or make recordings  broad this rule is currently phrased there it's not clear that there are any exceptions unless an employee specifically goes to a manager is a legal department and gets a formal exception so the issue here is this this rule is just over broad as we  our brief the employer raises a number of interests which are legitimate and might justify more limited bands such as preventing harassment or protecting legitimate confidential customer data the only issue here is whether the  e as currently phrased it's lawful or whether it's overbroad so the board's order does not prevent the employer from simply revising this policy to more narrowly target but intimate interests which might include you know preventing as i pathetically might prevent recording in a room where there's a lot of customer financial data where you wouldn't want to have photographs of other type of recording but the rule as it stands is totally over distinguish between work areas and non work areas it does not distinguish different types of employees as we point out in our brief the employer makes some arguments about how it's also in the service industry and its employees deal with customers employer didn't introduce any evidence of value you wouldn't have a problem with some sort of prohibition on on record so long as it was more restrictive yes exactly right your honor and that's that's what the board's test is here where it does this balancing element if there is a recording ban which is justified by overriding employer interest that's just totally lawful that was the case and played staff where it was both more narrowly tailored because it prohibited taking photographs of patients or other areas in the hospital and also because it was justified by these overriding employer interests so again just to reiterate the very narrow issue before the court is whether this specific language is overbroad or whether this specific language is somehow so necessary to the employer's interest that it justifies such an overbroad rule and that's that's a very minor unfair labor practice at the board found with the remedy that the employer can simply revise the rule s lafayette park hotel how can that be distinguished isn't that what we have here similar to what happened in lafayette park hotel do you have a particular aspect it there are lots of board decision what's up fell through all such as lafayette park where there's information or specifically refers to hotel private information or business documents or some type of information that employees would construe as only concerning you know that type of legitimate confidential information but here you have a policy which just says any information and that the board has consistently found that that is over probably because employees don't know what that means for example  you look at the william beaumont ascent of acting chair miss camaro he put a chart in there that shows that actual arbitrariness of the board's decisions with these micro hypertechnical distinctions the same policy language is in one case being up held in another case being found to be unlawful by the board that's the height of the epitome of arbitrariness the  is not does not give advisory pinions nor does allow any kind of general carve out that says except for section seven rights so we can't just tack that onto our policies so employers are in this kind of guessing game and that's the problem with luther heritage you have the right as the court to look at the boards a lot the novo and the substantial evidence test on its facts and substantial evidence is more than speculation it's more than theoretical conjecture  there has to be something here and could as the court found in arkham a is not enough to to to to make it over the bar there in terms of substantial evidence the  the board raised the issue of waiver i'd like to address that five quick points we it with respect to the no recording rule in we raise flagstaff's our opening brief at page thirty four you had the exchange with the board lawyer a second ago that comes when you look at lutheran heritage from member lieberman's dissent and that now has become the majority that the t mobile board is applying without saying that that they're flipping the law i mean that's is arbitrary and disingenuous as as any agency could act and with with it without their taking the case and flipping it on its head no one was fired here no one was hurt here this is a hypothetical situation involving the analysis of these policies the board itself says they should be analyzed under the wood standard none of these policies mention wage or personnel information flex practice courts other case beyond arkham of that dealt with these issues recognize that there's a big difference when you call call out or call out personnel and wage information in a rule you say the employees can't share that or the confidential confidentiality policy covers that that's not what we have here instill in the workforce that we want to have a civil and decent work environment t mobile's policies never mention wages or personnel information the traditional subjects that are covered by section seven and you have to read the policies in context it's very very important that the put the context of each policy be read including the last call to which is the policy involving computer use that's just absolutely crazy this is a computer use policy it talks about computer security preventing backing preventing data breaches preventing an unauthorized people are authorized users the whole policy applies to users with a capital you and so it's like the policy the court probably has seen in connection with keeping your computer safe in the information in your computer say and so this this to strike