subjects of hearkening when a long line of precedent from this court as well as the board holds there is no continuous duty to bargain over a mandatory centric that the parties have already are going to go over and where the parties have memorialized that bargain in a collective bargaining agreement and unfair labor practice would occur only if the employer departed so far from the terms of the collective bargaining agreement as to effectively terminator modify it has often stressed that the board's authority to find this type of unfair labor practice is constrained by the board's very limited role in the enforcement and interpretation of collective bargaining agreements the board is not allowed to treat the mere breach a contract as an unfair labor practice because congress civically denied the board that power part instead are supposed to rely on the contractual grievance and arbitration procedures in their contracts to vindicate their views about what those contracts of the watchman's agreement with local twenty six and their handling of the marine clerk's complaint against mr place because the board is not entitled to make such a determination the courts and set that order aside and appropriateness of those two theories being presented for the same charge well that's a question that both of the board and the courts i think have grappled with over the years we think that it's inappropriate for the board to be able to characterize the same conduct as both a breach of a contract and a an action that has no connection to the contract we think that the key question under the terms of section eight contested disciplinary action or perhaps perhaps the standards of conduct with respect to that harassment in the workplace but it's clear that the parties bargained over both of those subjects here and so if it's the case as we contend that  violate the terms of the collective bargaining agreement perspective those mandatory subjects of bargaining it seems to undermine that very conclusion to turn around and say that they unilaterally imposed new terms and conditions of employment with respect relying on a term of the contract as a sort of justification for the actions and in those situations as opposed to ones where there's nothing in the contract that covers the collective bargain that started the mandatory term apartment yes we do think that there are two sides of the same coin and we think that's the view that this court adopted in the honeywell decision where in addressing what was st and foremost in contract modification argument the court relied on its contract coverage case law which addresses the unilateral change sort of situation and we think that the st circuit in that bath marine grassman association cases came to the same conclusion essentially which is in both cases if we're talking about contract interpretation well the board has to stay within its very narrow lane because congress wanted to those issues to be aired in grievance arbitration which is a much more streamlined process than the process  and in addition to addressing the standard for sound article basis the board grapples with this question a little bit and seems to come to a similar place at the end of the day that if the employer is raising a contractual defense to a contract modification sort of charge then the unilateral change theory kind of falls out of the picture and so we think that's the correct view and i think that's the  consistent not only with the statutory tax which requires we're going to go over the course of interpreted it mandatory subjects of bargaining but also a long line of precedent that talks about the board's limited role in enforcing and interpretating i disputed i'd like to suddenly hear breach to take on to contest the idea that there is a sound arguable basis doctrine that applies and i thought what your argument was is that the board was just wrong to think that the so it's it's unfair labor practices there is such a thing as that with respect to the interpretation by contract if there is no sound argument basis for the interpretation because that's correct and if there is no sound argument places for their interpretation the contract  disagree that premise but if there is no sound argument basis for the interpretation the contract and the subject matter at issue is pertains to mandatory bargaining then the other doctrine kicks into yes i would say what i what i was trying to express  i don't think it would be used to find a situation very often maybe ever where there is a sound article basis for the employer's position in the contract but also the contract does not cover that mandatory so subject of bargaining so that you could then in the collective bargaining agreement that petitioners modified and here the board's decision only points to two items in the collective bargaining agreement in the watchman's agreement that would be the procedures for handling employer complaints and the article eighteen age which talks about how the grievance machinery shall be the exclusive remedy with respect to any dispute arising out of the collective bargaining agreement and under both of those provisions we submit that petitioners had a sound or google basis for thinking that their conduct was consistent with those terms and st on me procedures for employer complaints was undisputed here there was no employer complaint that long beach  considered filing one and funny lacked sufficient evidence to pursue it and so declined to do so the complaint here was filed by the green clerk under a totally separate bargaining agreement the p c l in ca a was a process driven soley by the brain clerk and his union local sixty three and so cannot be construed even if you set aside a deferential center it will basis standard as the filing of an employer complaint here and so we would submit that when you also look at it through the sand are the basis standard then it follows even more force believes that the petitioners did not modify the terms of the agreement and with respect to the exclusive remedy clause we've argued that if you read because as a whole except it shows that be explicit remedy provision is talking about remedies used by the union the employer or a covered employee and as i just  the employee here is not covered by the watchman's agreement he's the marine corps covered by the p c l in ca and we don't even think that this is an agreement that this is a dispute arising under the watchman's agreement because it really are pros and proceeded under the reasonable interpretations of the agreement and maybe not the strongest maybe they are going to do or not but that's not the board's rule to figure out which argue which interpretation is the better view of the contract while why would it make sense  the reading agreement in the way that you're suggesting given that we know that for the employer to impose discipline when the employer initiates a complaint they need to go to the article again to watch what a lot of it's alleged perpetrator that the article eighteen complex is what kicks in well it's not clear that the employer always has to file an employer complaint in order to impose discipline there are certainly categories of conduct for which they do not have to do so categories and there is the agreement does not say very clearly one way or the other whether in all other cases an employer complaint must be filed it has been that often employers will file such complaints but it's not clear from the record and i don't think the board found important because at the workplace harassment allegations in particular and the reason why section thirteen point two exists for the p c l in ca are things that the employer is not in a position to on its own based on an allegation that it believes that the harassment occurred and so in the p c on ca it was important to allow the employees to file complaints on their own agreement and so if if if that were if we were dealing with that sort of situation where a washington was trying to complain or workplace harassment i think that your honour's sort of purposes of  contract point would have some force but the ability of the local twenty six to constrain the ability of uncovered employees like the marine clerk here is meeting of the minds between the parties you don't happen in forcible contract provision and here there's really no evidence to suggest that pacific maritime or long beach was open to limiting the ability of marine clerks to pursue if if the watchman's agreement instance sign as to what happens in this type of situation then why isn't he why isn't it a unilateral change when when the employer be contract is signed with respect to the specific fact pattern that we're dealing with here that's true that the injury union sort of complaint of misconduct but the court's contract coverage doctrines are very clear cases are very clear that in order for an agreement to cover a minute or a term of bargaining so as to d prevent a determination of a unilateral change the contract does not need to address the said that the parties had negotiated over a set of procedures to deal with the mandatory term of targeting and here likewise the parties clearly have a set of procedures in place for dealing with unit employees it's difficult to conceive what language would will that mean much we agree with the manager for a subject bargaining that is contested disciplinary actions is clearly addressed in article eighteen c of the watchman agreement which gives the union and the worker who believes that discipline has been improper the right to grieve and arbitrate that and if we are union can instead go to the national labor relations board and sort of short circuit that process i say short circuit that's in some ways inaccurate because the national labor relations board proceedings take years as this case shows whereas the grievance in arbitration proceedings is supposed to be a of rules in place to deal with that issue the union chose not to have valence out of those pools here and we think it should have had to do so up eyes i see i'm going to running over my time the the other point that sort of independent of the points we talked about already use the question it's in some ways into seat it to the contract cover to question which is whether there was an established practice shome by the horse general counsel that at the parties departed from i'm we think that the general counsel there's the burton of show in that because it is an element of a unilateral change and i case a and we think at that boards field to do so here and instead it's trying to require  petitioners to show but there was an established practice and i to justify that what had what took place here but if that where the case the board you know we would be able to avoid showing in her in that in their contract and if if that's the case then any argument that the mere agreements to allow such procedures we should've been brought up as and i'm fairly poor practice within six months of w that policy was adopted so no later been twenty four dollars team and probably even earlier than that men because the board has not shown a departure from established practice on any of the three points that we address in our brief that we think that that is an independent reason for rejecting liability under the unilateral change  change violation which are distinct violations in terms of the theory of what's at issue the standard of reviewing it and the actual remedy versus the different violations are they different distinct actual one for labor practices so for example in this case the border vanity includes distinct remedial components to both in this case either one would be sufficient for most of the remedy which is making all the  individual who was unlawfully suspended but for the midterm modification there is a remedial provision that the employer needs to abide by the terms of the contract in contrast with a unilateral change violation the remedy is a requirement that the employer asked to notify the union and bargain to get paid and passed before taking away a unilateral change that image or not occasion is actually a broader or more comprehensive remedy because it prevents an employer from board is seeking enforcement so they are you know they are substantially overlapping theories and they could be played in the alternative but in this particular case the board found two distinct violations which had different standards the one being the sound found i think reasonably prohibits the type of discipline of a local twenty secs of local twenty six watchman that occurred here because if you read section or article eighteen  it's clear that the parties contract it to their procedure where any form of discipline such as suspension of a local twenty six watchman had to go through this contractual procedure and to just briefly summarize what that procedure is there's an  situation where the employer wants to discipline a local twenty six dollars washington and it cannot be resolved with the union does not agree at this initial stage the contractor fires the employer to file an employer complaint with the joint labor relations committee which then considers the issue and here is evidence and if they cannot resolve it it goes through a contractual arbitration and i can isn't and how how does this article apply in a case in which they claim the complaint was brought by another employee covered by a different agreement well your honor if you read the article eighteen there's simply no exception to this contract the procedure and back article eighteen age makes it clear that this is by the terms of the contract the exclusive procedure for dealing with a legit waksman misconduct and there's no car about to that suggesting that there's any different process if it's a nonunion employee making the allegation or limiting the article eighteen procedure and citing article sixteen and article eighteen in fact in this exact days the general manager of long beach container terminal wrote a letter to the union warning that a non disciplinary letter warning honor the board made it clear that the issue is not the green for its rights to you know have a contract or a procedure under his contract to go to buy his excuse or representative to protect him from harassment into allow him to make these claims the issue in this case is whether the green clerk and his union have the right to basically dictate the disciplinary procedures for it an employee who's in a separate bargaining unit with his own said how does that work out practices of if we are  the point where the employers applied that procedure to a local twenty six dollars waksman and then actually disciplined and that's a violation of the act because it modifies the agreement they entered into with the local twenty six employees representative and it's also that to a non for an employee in a different bargaining event is a violation of the act so in that sense you know that does not have a statutory or legal or contractual right to require this employee to be the employer just got itself into a situation in which it has these two contracts that's not for us to work out it's just that we know that under the for the purposes of a watchman who's going to be deciding to discipline his union honor and i'd also point out that the section thirty fine to use a fairly expansive procedure and what we're talking about here is really just a single parent better poll and the two thousand and fourteen letter understanding so even the scope of over referred to is a very small every statutory right to have their own exclusive barring representative who's the only union representative who bargained with the employer over their terms of employment but even if this were a breach of contract case which is not it's a it's  a well known element of contract law that it's not a defense to a budget breach to say well we deliberately entered into two conflicting contracts typically under contract law the defendant would be liable to bot entities for a potential breach of contract but again here that's a much more narrow issue that's actually under view before the court which is whether or was justified in finding a violation of the n r a or section eighty five dollars of their statute  complaint in this case is essentially itself a violation because the contract raised this procedure where if the employees want to discipline an employee over the objections or about the consent of the union they need to file a complaint with this  contractual during labor relations committee so it's not a sound article basis of a contract to simply say well we deliberately went outside of what the contract requires and so therefore we're not within the parameters of the  contract in addition i would i would dispute what the employers argued in their opening argument that the board do not find that there was an unbroken practice of filing employer complaints that's true in the sense that a lot of discipline does not require without going through this procedure because there's no evidence they haven't produced a single example of any employee ever being disciplined without going through that procedure and so even if the courts not agree with the board that the language of the walk into green is clear as we  our brief and the four points on his decision the uniform past practice of the parties confirms the boars reading of the contract and in addition something very significant in this case is that for local the st section thirteen  particular the parties have actually bargained over this and successor grounds of collective bargaining and local twenty six has historically made it very clear that they do not want this procedure or local twenty six watchmen can be disciplined to based on individual employee complaints without the involvement of the union and without the involvement of the joint labor relations committee so it's not for the board of this court to determine you know whether there is merit to that position but the fact is as a board found in substantial evidence of course that the parties this at specifically discussed this at bargaining and the union convinced the employees to withdraw their proposals to incorporate section thirteen dollars or similar procedures into the washroom to cream and when you say the language of the the agreement is this positive on in response to the point that there was no employer complaint filed in this case year knew of the agreement has to be that yeah there are some provisions that deal with the employer filing of a complaint but the agreement also has to cover the suspended employee to do so they need to file a complaint with the during labor relations committee and also if i can just point out some context and case that procedure seems counterintuitive or very beneficial to the union it's important to remember this isn't a traditional employ relationship like you know a factory worker this is an employer relationship which is handled through a dispatch hall so there are steady wasp men who work for the same employer but many of the washington hooting mr please in this case  legal elements that the employer has repeated in their argument st of all in terms of the general counsel and the board's burden to to prove a violation the board's burden is only to show that there was a new policy implemented which it is undisputed happened in this case it's not the board's burden to show that there was a binding established packrat past practice preventing you know lateral action by the employer because the fundamental you want to change doctrine is that  and so it's not sufficient to just say that the parties generally negotiated over a subject such as discipline and to the extent that employers are arguing that in this case the union should have filed a grievance under the walk into agreement that' pay thirty five and explained why deferral was not appropriate in this case the main reason being that there's no evidence that the employers would have allowed local twenty secs to grieve this through article eighteen because the important position at the time was that this was all handled by section thirteen two and that's why the union attempted to file an appeal under section thirteen two which wasn't successful and did not file agreements under article eighteen and so that's not dispositive and that does not g argument below did not really raise that argument here it's a point about the contract coverage standard that this court has formulated which depends on whether the employer and union have bargained about a subject and morea lies that bargain creating a set of rules governing their future relation that's how the court has traditionally formulated the contract coverage doctrine going back to the united states postal service and that's the version of the doctrine that should apply here  b i just want to clarify one thing i said in response to just three of us and question the language that the contract uses in eighteen c about the employers existing right to discipline is language that often gets litigated in grievances about imposition of discipline and it would have been in question for the arbitrator to design whether the existing right to discipline and allow discipline in this particular case but of course we didn't have a grievance about what that language meant in stopped working at long beach voluntarily at his union presidents sarette suggestion and he had previously been working at long beach as a as a study contrary to that what my friend on the other side said about how he would just go to long beach intermittently but he stopped doing that before the hearing took place here and we think that's another reason why long beach should not be held responsible and then finally just to get back to the notion that  ca requires here which is automatically comply without a discretionary step of filing a further complaint which the parties of the p c l and ca do not want to happen because such procedures are usually not confidential the employee no longer has the power to control them and they would it would it would undermine and if this is a raid the thirteen dollars procedure if the marine corps complaint had to be related gaited under the watchman's agreement and the board says that it's not merely trying to interpret a contract result a contract breach here but it is impossible to read the decision here as doing anything other than limiting the terms to which pacific maritime and long beach agreed under the p c l in ca and under a long line of cases the courts have said that federal law isn't supposed to regulate the substance of collective bargaining agreements it's merely to provide for the procedures for reaching and enforcing them and the board should not be enforcing those agreements particularly in circumstances here where there are multiple agreements at issue and enforcement and finding an unfair labor practice in the inevitably people involves  finding that one of those contracts cannot be complied with fully so we would ask that the court vacate the board's order and thank you