an agency can only be affirmed on the same basis that the agency itself articulated nd in agency cannot engage in fair speculation and rd agencies cannot to part from their own precedents without explaining why they're doing so and they cannot override the court's interpretation of a statute that taking those in order to the board found that there was no impasse for a single narrow reason that the unions december th in counterproposal was quote a white flag that therefore is the only basis on which the board could be affirmed but there is no evidence nine evidence the board relied on was a mistake the a l j asserted that attrition rates purportedly as high as one hundred and sixteen percent of the employees being paid under q p c soon would be a minority and that the union therefore would abandon q peacey but the one hundred and sixteen percent figure comes from a different dish location that isn't even at issue here and there is no evidence whatsoever nothing in the record that the union was going to abandon q p c in future negotiations on the contrary the union's lead negotiator sylvia ramos candidly testified that she gave up things that she never gives up do these provisions arbitration related issues just to keep the status quo just to keep q p c there is you already addressed it indirectly by your figures referring to the one hundred and sixty percent that we would give up having it applied to future harm that could at least be seen in the board's view as a as a st crack in the door legally and factually sure it was movement but the board itself has been clear for more than half a century that the mere fact of the movement isn't enough the key thing that matters and this is a direct quote from the haywood  hey were dodge case that the other side relies so heavily on there has to be a real potentiality not for movement for agreement and that's why it's so heavily emphasize that the question of whether the union was going to surrender dish and made absolutely clear and everyone agrees that dish was not going to accept p c the testimony on that is uncontroverted in the record is absolutely clear on that and the general counsel indeed says that and in their response brief the fact that the union had moved some doesn't tell us that they were going to surrender on q p c and that's why i started where i did and then less they were going to there was not going to be an agreement about this now that was a hard line position that dish took but that's absolutely permissible the standard of the discussion that the courts have engaged in and this is this court's own decision and chevron oil for says final proposal at the top of the page this was handed over during the bargaining and it says company rejects continuation of q p c having received that final proposal what does the union do it comes back and continues to propose a form of q p c at that point dish says all right we're done here and in the december th letter it says we believe the prospects for bargaining have been exhausted and that made perfect sense under the circumstances i do want to circle back around and focus just a bit more on what the l j said here and it's critical to note that there are kind of two components of what the a o j said that are so wrong st of all there's the factual assertion that the union's proposal made it probable that new hires receiving one q p c rates would soon become the majority in the l j nothing to support the idea that if the number of employees on q p c dropped below a majority the union was going to abandon q p c and on the contrary every indication in the record here emphasizes this at one thousand and nineteen this was sort of an extraordinary negotiation ordinarily what happens is a union is trying to get something better here everyone agreed that the union was just trying to hang on to the status quo the only thing they wanted was to keep q p c and the reason they wanted that was exactly going to have southwick that they you alluded to before this test had failed salaries had gone through the roof to the point that people working on the line didn't even want to go into management because they would have had to take a pay cut to get it and so all of the evidence here indicates that the union was just hanging on to q p c and there was no indication to support the a o jay's conclusion that it was going to abandon that i suppose we agreed with you that there was an impasse in december of fourteen what is the relevance of the year i mean the whole the union's entire thing that they're asking for is to keep the status quo gave them the status quo after to effectively declaring the impasse say by hypothesis in december of fourteen for a whole year while blahnik was sort of coming up to speed or handling this trial or whatever was going on what do we do with that year of  status quo maintenance in the middle does that affect the impasse declaration and say a couple things about a judge told them st of all to the extent that agency addressed that at all the board thought that  the length of time that passed waived in favor of concluding that there was an impasse right the language is even considering the length of time you know we don't think that there is an impasse and so if anything i think it weighs and in favor of concluding it the other way to look at it is candidly that it just doesn't matter that once you have this impasse the fact that there is assets of time is neither here nor there and again it's nothing that the board relied on other than that in our direction the one other point that i would make on the impasse point before shifting over to the hobson's choice constructive discharge is just to remind the chord that the board completely failed to address the mistake kerning concerning the statistics the supreme court's been absolutely clear in the motor vehicle manufacturers association and their variety of other cases that an agency has an obligation to address significant problems that are presented to it in our exceptions we argued to the board to be able j just made this math error here or looked at the wrong numbers depending on how you want to look at it and the board either said nothing about it in which case there's a basic agency law problem and the motor vehicle manufacturers association or it incorporated incorporated it by reference where where it quotes the a o j and relies on it and so there's sort of a damned if you do damned if you don't problem the for the the board's decision i do want to shift over if there are no further questions on that to the constructive discharge point this is in all honesty up a pretty strange kind of a case i think it's really important to situate ourselves in the legal framework here the constructive discharge idea is the same one that you see in other contexts it's a discrimination claim and so the standard type of a constructive discharge which the l j specifically said he was not finding here in the board declined to address looks a lot like a discrimination claim so in habermann this court said the employers conduct said that the two elements of the test the employers conduct created working conditions so intolerable that employees forced to resign and the employer acted essentially with with intent that is the thing that the a did not find here the only thing here is this kind of strange hobson's choice theory and that has different elements the elements of that are that the employer must require the employees to make a choice this is the hobson's choice to choose between union activity and continued employment and moreover the union rights being surrendered must be so fundamental and this is the language of not just lively electric but a whole series of federal court decisions so fundamental that giving them up is quote inherently destructive of the union now there is no choice here and you can see that by comparing this to cases in which hobson's choices are found the most common version of it is when an employer goes open shop or simply goes nonunion and says we're not recognizing the union anymore and that's what you see in a variety of the cases that the other side is relied on under the circumstances of course there's a choice if you're going to show up to work you literally are giving up your right to be represented by the union now there is nothing like that here and that's why this court electric machinery he said that the kind of rule that the you meant that the general counsel makes in their response brief at sixteen what do they say that the choice was that the supposed choice that was before the employees was quote working in an atmosphere of diminished collective bargaining rights that's pretty similar to what the o j set a two thousand one hundred and seventy eight continuing to work under greatly diminished conditions now if that's the standard for a hobson's choice constructive discharge then literally every single unfair labor practice every single impasse would give rise to a constructive discharge under a hobson's choice theory because you would always be going to work under this so called the atmosphere of diminished collective bargaining rights and so you would always be able to bring this claim and what the board said in lively electric and what this court said no electric machinery is that that is absolutely wrong as a matter of policy you do under circumstances like these is what the seventeen employees who didn't leave did that is to say you file a grievance assuming the employer doesn't give in you follow it through and if you win if there are no questions about that i reserve the balance of time for a bottle thank you good morning in may it please the court my name is david katz really i'm representing the national labor relations board this case and the board's findings in this case are not so simple and so cap and as opposing counsel has made them out to sea the board relied on several considerations and finding impacts here it's white flag analysis incorporated two aspects of the judge's decision one was the judge's decision that the  union had stated that it would be willing to agree to future concessions possibly because this was its st major concession on keep the seat and nd the judge's analysis of the attrition rates and the idea that after several years the union would have fewer of its members under operating under and therefore this accomplished most of what this was looking for what is the relevance of the fact that there would be  the fourteen and twenty two percent in his analysis ok so let's go with the thirty percent ok suppose that year every year in many years from now there's going to be a majority of the of the employees of the technicians in the relevant office who aren't getting  why does that matter if dishes final proposal is zero we don't care about a majority not getting it our position is zero well your honor here the judges analysis was based on as do you that after three years or so which is the length of it of the contract that issue here unions are democratic organizations and most of their members are not under q b c there's not going to be any will for the unit left for fighting the keep of relatively small minority of the members to keep receiving  negotiations and while three years may sound like a long time keep in mind the bargaining here at already lasted for four years under which employees were under q c dissuaded another year and was clearly willing to wait another year before implementing so three years is actually not you know if this is accepted if the union that given this offer at the outset of negotiations and dish accepted it practically no employees now today and two thousand and nineteen would be under when did the union change its position there's eighteen months between that and december of two thousand and fourteen when q when so there's eighteen months of a disagreement over whether we should have q p c at these two offices that dish operates in north texas yes even at the attrition rates that would have been proper which again are not with the l j set but just assume that we can ignore that the l g made a mistake even then it's twice as long as the union had been defending the q p c benefit yes your honor there would have future so the ale jake says high attrition yes that's obviously a relative term hide what doesn't doesn't actually specify it's high attrition but doesn't make a similar comparison between the amount of time that the union had enjoyed keep busy some just like at the eighteen months from may have thirteen to december th and the amount of time that it would take to have this critical mass turnover now you're out of the l g didn't make any particular calculations in that way doesn't substantial evidence require that i mean the w just is frankfurters opinion in universal camera you can't just say is there some evidence that there could or would have should have maybe in the future been some kind of democratic democratic change in the union and its voting you also have to compare that to the evidence in dishes favor and we have to find it substantial one way or the other right no your honor it's the reason why is that what the l g is looking at here is not what definitely would happen from the union's proposal with the l g is looking at is whether the si looking at this would see this as significant enough of a concession to warrant further meetings keep in mind dish refused to even meet after this point so the answer is point here is not ok this definitely would have given every thing it would have wanted in a short amount of time the point is there's enough of that possibility opening up and the judges talk about attrition rates is towards that and so here are its dish had those concerns concerns that you have if  came to the union and said at the bargaining table look i realize this is the only motion you've ever made at this in the past eighteen months since you prefer proposed this is you know we realize you think this may be a big deal but  look at our current attrition rates we just don't want to be paying this two employees for another year and a half another eighteen months we you know we might be open to something if you can find something that will and quicker than that or ended for the majority of the unit much quicker than the back but this didn't do any of that it didn't bring any of these concerns the unions attention i just said we're not going to meet with you anymore is there a case that says that a private company can't just say no but  if the company's position is zero i mean that's obviously not bad faith if they for four years are in the in a negotiation with the union right maybe they started zero and they refused to engage in any kind of negotiation but i've i read through your brief i've read through the cases i'm trying to i can't find a case that says that if you have proposed for four years a negotiation at the end of the four years you say my position is zero and then the recount responses will how about something more than zero that the company can just say ok well i guess we're going to agree to zero but your honor so st of all no there's no case that's directly plate with the four years of zero i mean that's a pretty specific circumstance but the board did cite two cases twin city concrete large for the proposition that if a party makes a counterproposal that has significant motion it's not sufficient to just say no without even meeting and so that's what the board relied on here that there's no meeting there's no discussion and i'm also going to push back a little bit on the idea that for four years there's been no on one side and there's been or even for eighteen months there's been no on one side and there's been yes on the other side the record here is clear that dishes problem with the sea was not the idea of having an of an incentive payment or something like that the problem with the p c was how much it cost and every every time they talked about it they're saying this is costing us too much there is no reason union to think that if there was some way to get the cost structure the same that then dish would not be ok with that the same cost but distributed differently or something along those lines so the idea so the idea that it's zero on one side and yes on the other ignores that the wage rates are all related here mr shinde he said earlier and that it's under speeded and i thought that was true that it's under speeded the dishes position has always been no keep well since the switch in position r eighteen months between the summer of two thousand and thirteen and december of two thousand and fourteen that just noki p c this was that's true your honor but that's in the context of the proposals as they are going for back and forth and his reason for explaining why  us too much so when you and when you look at these bargaining proposals the unions proposing straight wages that under would cost more than dish was painted on unit employees to keep in mind when the union proposed for instance proposed a straight wage and proposed high incentives and this is a two thousand and thirteen dishes response to that was no we don't want any kind of incentive payment at all because that would alter our cost structure of the contract as we have given it and we want to maintain the cost structure so they're not their issue here is not with the system it's with the amount of money so i realize that is mostly an issue with keeping because it is a lot of money but the idea is it's sort of not bargaining with zero on one side and the other side is bargaining with a level of wages that is very high on one side and lower on the other side and moving slightly to meet but not moving totally to me i'm going to move on to the board's finding of bad faith which again this is another basis for the board's decision it's not the board did not solely rely on the white flight that the judge the white flight analysis of the judge  this court's law and carry salt this court explicitly said that so if there is bad faith in the bargain there cannot be an impasse because in past assumes that the parties have bargained in good faith to reach that point in the board relied on all of the refusals for in person meeting to establish bad faith particularly considering that the parties had initially planned to keep the bargaining through december and dish cancelled those meetings or dish refused to reschedule those meetings and just sent an email and did not give any reasons really for any of it's for refusing to discuss with the union after that point so and that's another basis that it thinks this was not a finding of the board but the board adopted in full the judge's findings conclusions and the judge's order the judge's conclusions in law of law include a paragraph stating that if separately violated section eighty five by conditioning bargaining on about if occasion vote and the board's order of the order under review here includes a paragraph speaking to that violation so here the ratification vote is also another reason in the cases the judge cited behind that show that after an insistence on a ratification vote has happened there cannot be impasse after that point unless that insistence has been repudiated unless there are any more questions on the defeat an employer's finding of impasse by simply making a counter proposal and asking for a meeting no your honor the counterproposal has to show significant movement if that's going to happen the board's point here is under th circumstances of this case it looks like the union has made significant motion it looks like the union is still trying to reach an agreement and not being intrenchments positions that is essential to the bad faith analysis but we still look at the l j's because the board it is that he was basing his analysis on he's not saying i'm basing this on the one hundred and fourteen percent he set out all of the attrition rates for all of the locations that he just took straight from dishes you know from i think it's only reasonable to see the judge's opinion as characterizing those attrition rates as high as the attrition rates at the other locations so and even under those rates are getting two thousand and fourteen it was over thirty percent at both locations that's what would have been available to the negotiators at the time in terms of attrition rates really had no ever to correct or simply wasn't relying on what dish was claiming the judge was a lot relying on at that point the district in position that we're not moving any further after three or four years of good faith negotiation it's clear we're not getting anywhere with with getting really q p c and that's our position  whatever labels you want to use his mission to require it does seem to me there's a very good argument that has some stage a company ought to be entitled under the statutes that we're looking at to just be clear if you're not going to give us the yes there's no more need to negotiate the board you want a less important the board have i found here there was enough movement here to justify with the company to come back i don't know if i see it that way what is the role of this court in deciding whether that's the proper view of the heavens he sees me as both a legal question of whether this was significant enough is it actually an apartment which comes down to the legal right of the dish to take deposition and say we're not coming off and so there's not anything significant in the movement if they're entitled on bad faith in terms of the board is that her we we don't give carte blanche to it we make some sort of analysis no your honor that's of course so the board here the court's role i think is in looking at whether the board made a reasonable finding here whether or not the court agrees or disagrees with the board's findings and here keep in mind the board's finding is not that dish couldn't insist on that the board finding is dish here in the face of the movement from the union couldn't insist on that to the point where it would discuss that's what the board is finding here it's not finding that the board actually makes it pretty explicit here that if the union had not made this propos no zero for something the union i just moved it's wage rates by another zero dollars thirty cents lower or something along those lines you know we wouldn't be here this would be a fairly clear impasse case even though that the union had made some motion  on wages it's pretty clear that the board wasn't finding that incremental motion on wage rates enough so again it's a it's a matter of degree in terms of what exactly this proposal is and whether it did anything  and i think if you know if it's insisted on zero and said ok we've met with the union met with the union over this person explained it's reasons why i thought this wasn't significant motion and still insisted on zero you know that might be an impasse situation but you maybe it's the court map holder counsel for intervene or communication workers of america i would like to begin by talking about the hobson's choice issue that we wish to no longer be union created the circumstances of a hobson's choice were basically being told to work or waive your right to negotiate a waiver wage rates and other benefits by the union in this case there was the clearly the unilateral change in the significant wage cuts additionally there were statements made by agents of dish that this was with the intent to force employees to quit and this is the text message that periodic lee is referenced it throughout the a o j in the r b s decision and in that text message they state that this is the preferred method of resolving the union situation is that these employees to quit so therefore you have basically a statement of that this change was made with an eye towards driving isn't ploys way to force them to make the hobson's choice here and when this court distinguished they employer was doing such things as leaving open the possibility of the status quo throughout the negotiations and other concessions while the bargaining was ongoing or fourteen it had been broken by the passage of time in april of two thousand and sixteen when the employer actually starts making unilateral changes and again they were it was still incumbent on dish to come back to the table because the proposals made in december of two thousand and fourteen open the door and the national labor relations act does not guarantee an outcome to the party guarantees a process that process is to bargain and when ever there is something on the table that shows significant movement towards gulf states are lantz an opportunity for further negotiations need not reach to the point of an agreement but just further discussions because both parties can move you don't necessarily have to concede your point you explain your point and then the other party can adopt it and alter its position in response to what they've learned through bargain and like to see if i can squeeze three points and in the five minutes st judge can judge oldham i want to respond to a pair of related questions that you asked him can a company maintain that its bottom line is zero and can it some point a company say enough is enough the answers are yes and yes under the law it is absolutely clear and i had read the language from one of the cases your honor that a company can maintain a bottom line position section one hundred and fifty eight d itself says forget all the judicial gloss we're talking about here that a party can and can have its position and stick to it in the supreme court an american national insurance company said parties don't have to engage in quote fruitless marathon sessions so that's the st point and nd point to all them only go back to the colloquy that you had with my friend on the other side his language was was i think really instructive here he said unions are democratic that's how we know that the union was eventually going to abandon q p c now of course the board didn't say that male j didn't say that which gives us a pretty significant channel or a problem here but we also know that in democracies there are special interests and if there was some subset of the union here that was still in q p c given that the union had spent so long pushing to maintain q p c there is every bit as much reason to think that that would have cut in the other direction so what we end up having here and again this is this is what my friend on the other side said we're speculating about the effect of the unions proposal in the future speculating that's exactly right and this court in chevron oil and the d c circuit in cases like yuri brushing true service have said speculation doesn't satisfy the obligation of reason and decision making the supreme court has spoken really really clearly about this in burlington truck lines it talked about the tyranny that results if agencies are allowed to engage in this kind of backfilling through a judicial argument expert discretion is the lifeblood of the administrative process but unless we make the requirements for administrative action strict and demanding expertise the strength of modern government can become a monster which rules with no practical limits on its discretion the most florid language there are actually comes from an opinion from justice black obviously a huge proponent of the administrative state and he understood this the signal evil that happens with exactly what's being proposed here and so all timidly what the general counsel says is that you just needed to have one more meeting one more meeting to say what was absolutely clear to everyone there as the december  letter said that bargaining had been completely exhausted the rd point i want to address is the suggestion that there were some other bases for the board's holding there was a suggestion that there was an independent conclusion about about bad faith generally it's talking about the failure to negotiate now that all happens after there's an impasse and once there's an impasse there's no further obligation to engage in bargaining that's the whole point of the impasse doctrine is once you have it you don't have to bargain anymore the requests from the union they came in in a variety of letters in twenty one  an indication of the areas in which that party for seize future concessions is insufficient to defeat an impasse where the other party has clearly announced that its position is final that is on all fours that with what we have here  no indication of what it would change as to the ratification vote i would just urge the court to look at footnote six of the board's decision the board doesn't actually separately rely on the on the supposed request for  ication you'll see that it is in the most sort of gentle the language in that footnote to the extent that this occurred and i'd submit that before a federal agency can bring the power of the federal government to bear in an in force made action it has an obligation to speak a lot more clearly than that and it is not the case that the board wholesale adopted with the ala case said if you look at the st few paragraphs of the board's decision the board specifically says the t o j performed the wrong analysis it's failed to consider the taft broadcasting factors and so the board was doing its own analysis not incorporating the entirety of what the case are no further questions we'd ask that you