what the national labor relations board got right in its decision below and using that to explain where we believe it alternately errored in part the board got right the fact that after the employer made claims  support of its wage proposal about the its current contracts with hotel clients and the rates he charged with end clients and union counsel requested specific financial information needed to assess those claims the board properly helped the p s a evaluated the act by not providing that information us with the basis for that i was confused because i thought originally the reason they had to provide that information they took that back they retracted that statement and the n l r b said it was a proper retract meant of the statement so once they retracted then why was there at another basis question i think  it's two to really separate things what the board says what we agree with and i'm quoting from page two of the board's decision is that shankman the attorney for p s a ve made a number of specific claims to support the respondents position that it only wanted to pay the wages it was already paying and only wanted to change those wage rates if it felt like changing those wage rates the board says made a number of specific claims to support the respondents position including that respondent pays fifty percent commissions and so on and so forth and then the discussion around that the board correctly notes the general rule from the true it manufacturing company the us supreme court decision from one hundred and fifty six that good faith bargaining necessarily requires the claims made by either bargain or should be honest claims if an argument is important enough to present in the give and take of bargaining it is important enough to require some sort of proof of its accuracy so when shankman makes these specific claims p s a t is obligated to prove up or fail to provide make some effort to show the factual basis for those specific claims and that's the distinction the board makes and we don't disagree with or do was to support inability to pay do you disagree with analysis i do disagree with that analysis but it's alternately not not really relevant today the board found that it's a no win contest here on appeal that the failure to provide bullet points two through four well there's a breach of the duty to bargain in good faith even if you can't in for some kind of larger bad will or intent it is on its face a breach of the duty to provide the information that you've raised in bargaining the board said that that was a breach of your duty to provide information but not a breach of the duty of good faith i mean that's why we're here right so it's all a breach of section eighty five of the act but you're correct the board employer reached its belief that it didn't need to provide these two through four documents what about their conduct that was a bad faith action and that is actually not an argument i'm taking issue with today i want to be clear so you're not arguing as part of your good faith argument the document issue i'm not arguing that document issue on its own except to say this if we want to the thrust of my brother remarks and i think frankly member mcfarren does a good job in his dissent of articulating the overall bad faith bargaining argument is that where the board st got it wrong after finding that the the who was a violation of the act to not provide bullet points to through four where the board got it wrong the inability to pay remark according the board it was it would be suicide for us to pay these rates what's his clarification since right before that the employer in this business would pay such a wage if it did so it would be suicide for that company well p s a p is an employer in this industry he's actually not retracting the suicide comment he's doubling down on it following it with a purely conclusory statement we're not saying we're unable to pay but he's just said it would be suicide so submit that the board misunderstood and under this court's decision in the international chemical workers union council case a company must make it quote unmistakably clear and quote to a union that is abandon its p attorneys can be very clever with their words but when you say i didn't mean it would be suicide i meant it i didn't mean to be suicide for us i mean it would be suicide for anyone in the entire industry which includes us that is not a retraction that is doubling down and following up by saying i'm not saying we're unable to pay that's just checking off a box to try to avoid being held results does it does beg the question of what inability to pay me you can you can have the revenue to be able to pay but then you know that that would you know hit your bottom line and you would be able to make any profit it is or somewhere where inability to pay is actually defined in the regulations or somewhere else it's defined by the board in that it would have insufficient assets to pay during the life of the contract that is being negotiated but immediately to pay is inexplicably linked to non survival in business and when you lets that goes on now such kind of it to pay was  ever right but to me that's just empty words because he's actually repeated that claim to say it would be suicide it's exactly i don't know that i agree with you because i mean you're in a business it's easy to say it's suicide that we would only make one percent profit instead a ten percent profit but that doesn't mean that there's an inability to pay he could say it's suicide for my job if i if i pay this much the board's going to fight me for my child but not because the company is going to go under just because i'm not going to meet my benchmark but respectfully it's actually the board below that agrees with me on that point because the board actually gets this right on page four they say shankman statements during the august seventeen bargaining session particularly his statements that accepting the union's initial wage proposal would be quote suicide and quote the responding that would cause it to go quote underwater and quote indicated that the respondents business would not survive if the responded except that the union's wage proposal and that therefore that's a fair point i think the there's a huge range of possible consequences that to be dead one of the words but my position i want to belabor the point is that by repeating it would be suicide the board has not explained why saying it suicide in a seventeen is an assertion in a row pay saying it would be suicide for anyone in our industry implicitly didn't he say suicide again in the reaction part says no employer in this business would pay such a wage and if they did so it would be suicide for the company so that's why i submit doubling down on a big picture on the targeting of bad faith is you've got a company coming to the table with a wage offer which is we're going to pay what we're paying now and give people wages when we feel like it we're going to discipline people if we have a just say that you the union makes a counteroffer on two dollars less the wages and the employer never responds with any proposals and that's where it matters it also doesn't give union information the might it change the union that is if you're good faith or good that's a good it please the court kelly is bell here on behalf of the national labor relations board there are two issues here did the company effectively retract its inability to pay claims and did it engage in bad faith bargaining substantial evidence supports the board's findings that it did effectively retract and it did not engage in bad faith bargaining so on the issue of the retraction of inability to pay a claim the board did explain why it found that retraction to be effective yes the word suicide was used twice but remember the  time shankman made his suicide comment was an bargaining he said their contracts were precarious and they would go underwater if they paid those wages when he explained in his letter he set out that what he was really talking about was the business model the union had based its wage ask on as needed union hiring hall contracts in san diego and san francisco not in house forty hour week full time employees that the company had employed in the seattle office so shankman explained why he explained the difference in the business model and why those wages were inappropriate in the seattle market that's enough what then happened was that the board looked at the entire context of continuing statements by the company and their conduct inability to pay in chemical workers in other cases is defined as making a plea of poverty being  financial distress that is not what this company was claiming they were making the point that the business model they used in seattle was a different model than the one in san diego and san francisco so once they explained that they never  for give backs or lay off people that's what happened in a national chemical worker so the board and the courts are looking at the entire context of the company's bargaining position to find out whether or not the inability to pay a claim was effectively retracted so i have a question for you coming into this argument my understanding was that the union was arguing that failure to provide these two through four category documents was an aspect of bad faith i'm not sure at this moment but in any event let's assume that that's the case so i mean they didn't you would agree that the union or that the employer stuck with the argument about these different market models between california and seattle and how and why they were taking this position you would agree that they stuck with that argument right vs wrong and so then why isn't it bad faith for them not to provide the documentation related to those arguments as part of the bargaining process information request violations this is part of one of the interesting bits about the act the board does not have to find intent or motive so if the board finds that information requested by the union is necessary and relevant to the bargaining process the company and the company did not provide it then the company violates a five the board does not need to look at the motive so here the information in bullet points two through four was necessary and relevant for the unions bargaining it's very specific information the board told them to provide it but the board didn't need to find a bad faith bargaining and that's not before us right i mean  the two through four the company is going to have to provide that the counties know what we decide here ok yes right but the board then went on as part of its bad faith so there are two issues of attraction and ability to pay do we have to do we have to open our books  bullet point one dollar when you make an inability to pay a claim you have to open your books the union and then to bad faith bargaining and sometimes when the board is doing a bad faith bargaining analysis it will look at other things and if there's a corollary refusal to provide information the board may consider that in making its bad faith finding terminations but here it found that refusing to provide two through four was not in bad faith it was not disingenuous because they believed the union had couch all the request in term for the inability to pay and once they retracted they didn't have to provide it so the board found it wasn't in bad faith because they continued to they didn't make other claims that they were in financial distress so there was no ongoing inability to pay claims does that answer your questions so there are no more questions about retraction ability to pay bad faith bargaining so when the board is looking at  claims of bad faith bargaining it's looking at the entire context of what happened it doesn't the board doesn't normally look at individual proposals on either side but it will in the bad face context to figure out what's going on good faith bargaining means you have a desire to reach agreement bad faith bargaining means you have no real intent of ever reaching an agreement and the board looks a lot at objective factors such as did you just lay in setting up the meetings or giving proposals did you send people to the negotiations who had no authority did you make regressive bargaining proposals you know offer something in the beginning and then six months later take it away things like that we don't have that kind of bargaining in this case what we have are five sessions the st session devoted to setting the ground rules so there are really only four sessions of bargaining both  sides submitted proposals and counterproposals the company moved on so contracting disciplined grievance in arbitration it gave up some of its discretion in setting starting wages for employees it did not move on benefits but there was no indication that the company had no intention of reaching an agreement and it came to the table it made proposals it they reached a tentative agreement so they had set aside some of the non economic proposals that they had agreed on so one thing that i'm curious about in this area is there's the sort of tensions in that the law doesn't require parties to reach an agreement but the law requires parties to make an effort  hard bargaining is not illegal but those things at some point sort of clash and so if we look at just wages here the record does show that the employer didn't move much on wages i think fairly the union didn't move much either so in your like how would you explain where we find that tension between what's hard bargaining and what's i'm not interested in actually having this be fruitful well on this with these facts i think what you have is you can't tell yet we only had four sessions and this is where the board said you have to test the employer's willingness to bargain and they haven't been tested yet with one issue of hard bargaining on both sides i agree with you your honor i mean the union came down by two dollars but it's so it's nd way to proposal was still one hundred and six percent wage increase the company didn't need to accept that and i can't tell for example on the benefits issue from the record whether or not they ever discussed the benefits issue the company proposed keeping benefits the same for all their workers so the unionized workers would have the same benefits like medical insurance and things like that as their non unionized workers and the union proposed paying into the union funds neither side moved there was there were no other offers on the table but just that issue doesn't mean that they were that either side interpretating the act considerable deference on issues of whether or not the board properly dismissed parts of the complaint as it does in this case this court applies rational the rational basis standard  and i would say that here we have substantial boards its findings are supported by substantial evidence i don't see anywhere where the board hasn't backed up what it found with evidence in the record and cases show when the board finds bad faith bargaining that companies have done things like insisted on being able to make unilateral changes throughout the life of the contract to discipline wages work rules along with a no strike clause public service the public service case out of oklahoma and hydrothermal i believe both insisted on converting u l p strikes unfair labor practice strikes and economic strikes as a part of the contract when the board finds bad faith bargaining companies have done things like reached out to employees to say you know if you're ready to get rid of the union now come talk to us so it's a whole package of employer behavior and what we have here are four bargaining sessions both sides coming together not having a meeting of the minds yet on wages but no indication that either side was unwilling to continue to bargain and no indication that the company said it wouldn't raise wages we just know it thought that the one hundred and twenty percent wage increase was too much i'm almost out of time if there are no further questions apparently thank you the employer made wage proposal benefit proposal discipline proposal the union came to the table and i'm certain the union made its initial proposals the employer came up with its purple unit came back and said here's a new wage proposal two dollars an hour less plus we want information the employer never made a counter never provided the information never changed its other proposals that is not hard bargaining that is accrue fusil to bargain in good faith thank you thank size for their argument