resulting in the imposition of a bargaining order even though it held in johnson controls three hundred and sixty eight in or be number twenty at the last in time rule failed to satisfy the board's statutory goals of ensuring employee free choice and board recognized and its decision but and has recognized elsewhere through active application or more practice of this manifest injustice will result in johnson controls just as in this case the leavitt's last entire rule would have resulted in be a position of a bargain in order except that in johnson controls the board decided to overrule the lead of its last time will implement a new standard and apply that standard retroactively that apply the standard evidence as is the board which creates the very same mischief in the very same criticism of the of this last time does the board is really trying to have it both ways either the leavitt's last entire rule is inconsistent with the board's statutory mandate or it is not if it is then that rule should have been applied consistently here because the operative facts are of the same both cases involved into a submission of a majority petition to employer saying that they no longer wanted union representation in both that i think it is it is an arbitrary and capricious decision the board does have discretion to determine retroactivity and it's cases here the board abused its discretion and acted arbitrarily failing to apply johnson controls retroactive and you see that because the facts johnson controls and of this case are virtually the same in terms of the operative one and number two taking into account the board explanation as to why it refused to apply too much controls were directed simply does not support the result for bad i mean the board relied on two reasons why it was not going to apply johnson controls those institutional reasons it simply said they existed nd it said that it went it expected prompt compliance with its bargaining orders and that the parties should have been bargaining here rather than leggett implied exercising it i believe that the bargaining order was an abuse of discretion after this court's decision it's gone but i also believe that under johnson controls the bargaining order is really irrelevant because johnson controls should have applied at the board level and at that or at level orange should have dismissed the unfair labor practice charge of the way that johnson controls reads and has applied so i don't believe that this board even needs to get to the bargaining order issue which is why marketing order in this case somehow disrupts the bargaining relationship between the parties but as the board recognized and johnson controls what disrupts the bargaining relationship between the parties is the leavitt's last in congress that allows an to comply with the board's remede you order in this case next the board says that the parties could have been bargaining and they could have reached an agreement here rather then but i get pursuing its right to appeal this really points out a significant problem with the board supporters here it defended just getting word in the st time around on the grounds that that bargaining order only was posed for a reasonable amount of time and thus have a limited impact on play free choice but now it says what the party should have done was bargain and enter into a collective bargaining agreement which would have required which would impose this union on employees for an extended period of time up to three years and that is the very problem with bargain orders that the sport has repeatedly identified including identify scopus so in conclusion the board we believe is simply trying to have it both ways here on the one hand it says the limits last time rule does not comply with the statutory mandates on the other hand it capricious and against extant law as set forth in johnson controls turning to my next point i see i'm running short of punt we believe that the proper course here is for the court to deny enforcement and not remain in this case we believe that the outcome here is for danger under the rule johnson controls and in this sort of situation is the supreme court as stated in our b v one gordon cited more materials the court has a discretion to simply deny enforcement to the board's order rather than unlawful assistance to a nd decertification petition that was filed in june of twenty seven and as we argued in the breeze we do not believe that the board's finding and on that it is supported by substantial evidence what we have there is we decertification petition or to be introduced to a supervisor the employee didn't hear anything as to why he was being pointed to the decertification petition or the way that the board got to a violation there was that it imposed an adverse imprints on leg parties and the counsel for the general counsel failed to call and ask him questions even though he was pretty good thank you and i ask you one quick question about the remedy so i don't want to presuppose anything but on your argument about the remedy remain on the case the only the only remit would be with a direction to dismiss the unfair labor practice charge a simple denial of enforcement stating that the board cannot enforce its order the direction would simply be  to remand for dismissal right so then what you're talking about is the direction that's given not the not the denial of enforcement because the denial of enforcement itself doesn't dictate what happens to the case before the case is proof the judge millette was right when she noted the board lacks any discernible intervention standards the onus of the bargaining order falls on my client and not on the employer a bargaining order prevents my client from having his election petition oppose a bargain in order and on appeal the board upheld the intervention yet the board cannot adequately explain why intervention was granted in that case and a host of others that we cited in our case such as a johnson controls avenue dental renaissance hotel and it cannot do so was intervention was denied in this case and it can't do so because judge millette noted there is no standard now the board makes three principal arguments on intervention st to claims the board is w discretion to grant her deny nd it argues purpose had nothing to add to the hearing and rd it argues that any interest purpose has can be vindicated through the desert of occasion process each of these arguments fail in turn st while the board unquestionably has discretion care to act arbitrarily and the board's intervention decisions are arbitrary because ale g s grants or deny intervention in typically similar cases and those interventions are then rubber stamped by the board as i said you see this novell is trying to control the confectionery all the cases we saw today and so the standard of granting intervention donna well you know when you see it basis is a failure of the board to carry out its own functions and as judge millette noted the board has to issue some reliable consistent standard now the board claims in its brief that its standard is readily discernible but this is belied by the fact that the board's newly discovered standard bears little proposed intervener will be able to proffer additional facts and so if this standard was actually discernible that wouldn't only been applied by the l j it would be applied in every single intervention decision and even for the case that the board cites for this proposition united dairy farmers if you look at footnote three which talks about intervention it isn't talking about a factual standard st it's talking about an interest standard and in that case they simply found the employers who attempted to intervene in that u l p case didn't have an interest under the statu that standard but it ignores that the l j credited roseberry testimony because nobody asked her this about his interactions with steven day with the employers agent and rose barry's testimony was the  requires employees to be not only fact witnesses but the whole test is whether the employees themselves objectively want the union gone unless it says this is a question of employees section seven right so  makes conceptual sense to say if lettuce is about employees section seven rights those employees should have the ability to retain their own counsel and participate in the hearing to the extent leavitt's is necessary now running short on time and i just want to say th interest in opposing a bargain or precisely because of this kafkaesque process where the board says you have a right to an election but that election is dependent upon what happens in this case so the board can't have it both ways they can't say we want to bargain in order that prevents an election an election that's been prevented now for three years and have the same time they say well you can go get an election but you can't and so ultimately what the board even says in its remedial order and they refused to reply johnson controls they say the party should have been bargaining and they could have come to an agreement but that agreement would block any election for up to three years so in reality what you have is three years without an election then you have additional pond for parking under a parking order and then three years after that they come to an agreement before that the time period runs out on the bargaining order they were blocked for an additional three years up to seven years or so to say that we don't have an interest in this case i think is just wrong now i'm out of time does the court have let's just assume that the board does get to define get at least has discretion to determine when decisions are attractive and when they're not and let's just assume further the board could in theory decide that johnson controls even though it framed  retroactive to this cases and all this case and all pending cases it could decide in some other pending case that even though johnson controls applied retroactively injunction controls itself and framed it as applying to pending cases there could be some pending cases as to which just means all pending cases but let's just i always been assume further that one could draw distinction between cases that are pending before the agency and better pending in additional review oh oh i'll go there too but still there has to be a reason to treat a case differently then another case in which retroactive treatment was granted and as i as i read the board's order in this case the reason basically boils down to there's some language about institutional interest i think that just that just  should have been bargaining but all that happened was the employer took on a father petition for review right and at that point i don't i don't i don't know what an employer supposed to do particularly when they actually johnson controls itself the board says you know there are some serious questions about affirmative arguing order that's not to say that you necessarily want to lose on that but it's just to say that there's a serious question on it that on all the employer has done is filed a petition for review i just hard for me to understand why the mere act of filing a petition for review puts this case on a different footing than jonson control itself now there may be other reasons why it's on a different footing but there's nothing in the board's order that spells out anything for them tha more than just say they should have been bargaining for six months in fact the board points out that it is deliberately issued let it in plath knowing the johnson controls was pending johnson controls didn't  six months afterward so this is a strange retroactivity case in the sense it's not that women were not bridge when they say there was a deliberate decision the decision is just based on the fact that there were not three votes to overturn  reconsideration that had to do with the issuance of yes leggett and platt not an institutional reason for it to deny retroactive there's a distinction there i think on the institutional it's is is that part of the reason to deny retroactivity for like an i'm sorry what is the fact that they did not have that they were not three board members for that position and that's something that's not identified by the board as one of the reasons that it's not a climate for activity when the board know like there's no other deliberate reason from from what i can see from the border where there's nothing to liberate other than the recusal question you know i don't know if there's nothing else in the decision but i'm i don't know instance internally well let's they're both pending before the board they have case a and case b the fact that the board says you know what case they came up st but we decided that we were going to issue the decision in case b nd rebel or and that's not enough apply recusal however is not a reason so once johnson controls is decided and johnson control says that it will have retroactive application the earlier recusal cannot i mean i don't see how that could be a reason for the agency not to apply retroactivity to leggett and platt well if you're there are other reasons though signed up by the board it wasn't just that they did also acknowledge right that the person you were had been in effect for six months that's going to be true for any party that has a marketing order and juices to appeal that it's not a reason particular or deliberate we considered about what i get and platt i think what's significant in that sense though is not the board it's really interesting that you keep saying no way because the only you're not distinguishing the two cases on their facts or and how johnson controls would apply the only thing that is knowing in the sense in which you say or unless you can point to something else is the re the board had already decided that case so even the courts recognized or even the courts recognized that that's going on he usually in fact as far as i know there is a precedent for a retroactivity doctrine where an administrative decision has already issue there could be another case that everybody is familiar with because sometimes the board puts out a call for a briefing that once they put out the call if i'm on the receipt i'm on the losing end of a decision they don't want to incentivize de lay hoping that the keys will be overturned pending and that and before the board nobody knows whether the employer would have actually gone to the bargaining table so incentivizing in the sense that if i otherwise would voluntarily comply because everybody knows the board's orders are not self and if i was otherwise as an employer willing to comply but i now know that there is a pending case for the poor heard that will turn the law around then i may absolutely file a petition for review and there are no timelines either in the statute  intentional decision to issue leg it st even though it came up nd and the pi byproduct of the intentional decision to go out of order if you took him an order if you did fifty dollars then you if you did st in st out then you would issue just a control st but then the board says you know what i want leggett to actually have a bargaining order so that i'm going to go ahead and take him out of turn an issue leggett st and then i'm going to issue johnson controls that take the substantive foundation out from under the bargaining order and leg it but because i decided deliberately that i was going to issue leg it st now i can just say that i'm going to set the law right and just to control the law right the way the board see that i'm not suggesting that i think the law is necessarily right or wrong and says that the way the board has seen it that sets a lot of particular direction and johnson controls and then i'm just going to decide that because i deliberately did leg it st even though it came up nd then johnson controls doesn't apply to leggett that doesn't paint a particularly sympathetic portrayal in my mind on the board i'm not quite sure why they have the discretion to do that i think  saying there has to be some reason for treating the two cases differently other than the board deliberately decided to issue one before the other because that's not a reason and it's not the recusal i can understand why you're not relying on the recusal because that doesn't seem like it would be a reason either so it seems to me a right not to rely on that either but there has to be something that says even though i applied case b retroactively i'm not going to apply fending case a retroactively other than i deliberately decided that i wanted to issue a st because that doesn't seem like a reason to treat them differently right and i don't know that that again i'm not i'm all sort of in the internal workings of the board fine i'm not i think that's unfair to say that people were sort of involved in the mechanics outwardly meon i'm not suggesting i'm taking you at face value on your argument because i'm not seeing what the reason is for treating the two cases differently that is manifested in the board's order other than a statement that there's institutional reasons which as we all agree that just for st of what comes next a statement about something deliberate which also i think doesn't it's not self defining i don't understand what's being deliberate other than what you're saying which is they deliberately decided to issue one decision before the other that's fine of course you can make a deliberate decision to issue one decision before the other but if the board but they're both pending then there has to be a reason for treating the two cases differently under stand what that reason is just by use of the word deliberate then that takes you to the rd thing which is that this was pending for a while and they could have been bargaining as to that all the employer did and i think that's what you're left with and as to that all the employer did was take  appeal not if you answer they filed a petition for review in a context in which i don't know what the i could even conceive of a situation there may be some situation out there where the employer engaged in some kind of conduct that was dilatory including in the context it's taking a petition  review i mean i'm not sure what that would be but you know the board would be free to say that in the particular circumstances there's an dilatory conduct here that justifies differential treatment but here the only conduct is filing a petition for review which was entirely within its rights especially because in johnson controls itself the board says that there is grounds for calling into question whether an affirmative bargaining order is warranted given the d c circuit decision and so miss what what's the board left with on treating the cases differently i'm not i'm not me i'm trying to be as deferential as i possibly can be to the board honestly i am and all i'm hearing is conclusory you're left with the border that you're trying to defend saw i'm not i'm not blaming you but i'm just saying all we're left with is the reasons that were given and the board's order and they don't feel like they have anything underneath them because institutional we all agree doesn't say anything deliberate i don't understand what that says because it only means you deliberately decided one before the other there's nothing underneath that then you're left with the time period which that in theory could be something but here the time period isn't anything other than taking the position for review as to that am i right or wrong about that is there something else that i'm missing about what is involved in the time period so th focused on in the abstract expects voluntary compliance with its workers and it doesn't want the employer or union for that matter to game the system and not comply in the hopes that there w that the board has a reasonable expectation of voluntary compliance and in fact in one of the right to petition a review exists you think you should be able to expect we're going to comply rather than petition i don't think that a reasonable expectation necessarily negates an employer's right to file a petition i can have the board can have that reasonable expectation while fully recognizing as it must employers ability to take the appeal but in large measure not a lot not in  trying to be as deferential to the board as possible given our court's decisions on that issue johnson control says this is the board and johnson control says in light of the d c circuit's opinion anscombe as the enforceability of an affirmative bargaining order issued under letter enough were an affirmative bargain or didn't actually survive judicial review in that case and that was the st point i was making on nd the nd thing i wanted to say was that's a common fence on the affirmative argentina or that's a comment on the remedial or not on the violation so the retroactivity applies to the st in line and obviously affected the order it's not the remedial order because if you undo it in the ability of the union as  controls to rehabilitate support if you were but in terms of filing a petition for of you didn't the employer fall a petition for review and in which one of the issues raised was the the  enforceability of their from a bargaining order certainly based on sco absolutely baseless and that's something the board itself says would be in serious doubt now that's not to say you know of course that doesn't mean insuperable doubt i mean it it's possible that an employer can win and i'm not necessarily saying whether the employer wins or doesn't on this case but in terms of understanding the board's understanding of why an employer would fall a petition for review in this case the board itself said that the issues in serious doubt in this what i'm suggesting is the board itself has understands that and on this exact issue the affirmative bargaining order in this case even if a board can generally generally be seen to expect that its orders are going to be complied with and even putting to one side file a petition for a view on this petition for review it's an issue as to which the board itself says there are serious doubt and again i think i would fall back up in the ocean that in deciding and looking at it statutory rights in its institutional reasons the board is looking more in the abstract it doesn't want to encourage in any circumstance whether in this particular case that didn't factor in this heavily as it would as in a different case the board is saying that retroactively here question i mean the board obviously has some discretion with respect to whether it applies its decisions retroactively but in a context like this where the board and johnson controls specifically decides that it's decision will case i believe united commercial workers that the standard is sort of all over the map even in the circuit as to what how does this court look at that determination and in fact but even in those cases where the court this court has recognized that it's there is some level of discretion because one of the components of the manifest injustice test looks at the statutory considerations so in that regard as we wrote in our briefing we maintain that the brewers entitled to some discretion and on top of that i would add that i and i tried to sta if it's the johnson controls decision not to mean retroactivity is normally a challenge in the very decision where the board has said or the other eight an agency has said this is retroactive in all this case and all and i think it's a different proposition to saying that this is this is a decision that already issued six months before the retroactivity decision came out so i think in that regard the board here i think that's why you saw them speaking to institutional reasons and relying on that context to to to deny rhetoric to that in this case and i think that councils in further of a higher level of deference then in a traditional retroactivity secondly mischa he mentioned that this case was men usual case because it had already been decided when the retroactivity matter was decided a case that we cited in our motion for reconsideration to the board on this very issue was the board's decision and williams energy co three hundred and forty in or b seven hundred and sixty four where williams case was pending before the th circuit the board was in the process of deciding a case that was going to reverse president underlying the w thank you mr harper mr song you did have one minute i don't think your issue came up in the course of arguments but you're welcome to take it one man if you like just to address two quick topics that i think came up in the course of all discussions today we're exhausted about that because whether or not there is an election because there can't be a bargaining order or there's an election because of the union moves forward under johnson controls possibly it doesn't matter either way potato potato but the question is what to do with thank you thank you council thank you to all council will take this case under submission