groups of slot tax in five casinos owned by the same ploy or in each case the employer refused to bargain and in each case in the th circuit affirmed the board's decision that this was an appropriate unit and that the slot tax would not guard this court then entered consent orders in the other three in may of this year this case involves one of those ms beard and i were on the same side in the case involving palace cases holding it were an employer does not raise the issue confidentially and offer to bargain about it when the union makes a request for information that is relevant that then waive its right to bargain about that issue after survey cases issue what i want to emphasize in terms of this oral argument then we have a situation where the board has offered a number of rationales for changing its position with respect to this doct none of these rationales meet any test a reasonable reason this season making let's address the st issue that the board uses to justify this change in position they say well we have to protect those remedies on the employer who refuses to bargain but nonetheless makes it an unfair layer of practice and i don't register and i'm clear counsel what are the remedies if an employer refuses to bargain on the basis that it believes that the union was not properly certified but the board find sat to be that defense to be to the unfair labor practice to be without merit whether the remedies available to the board at that point the remedy to the board is an order from a court ordering the employer to bargain with that unit but it carriage to that obligation that really are many other aspects for example if  makes united changes to working conditions during that period when cherilyn certification in part can be ordered to reinstate the former conditions make employees whole and bargain over those matters retroactively during the year or two years the remedy issue both in terms of a court order as well as in terms of what the union can do here well thank you i mean i guess then that raises a question for me is if all of those remedies are available then why is it necessary that it also be a vailable so to speak that the employer waives any right to challenge or information was not lying to others because it didn't it didn't the board didn't the board seems to believe that the players who want to both challenge certification and raise a confidentiality question can't really do books it is easy to think that it's not accurate right the board is correct  under what's been the law in every circuit this had these issues before and the board up to this point is that the employer is faced with between a rock and a hard place but that's what the statute invasions that is if they have a confidentiality concern why why is why is that catch twenty two dollars implicit in the statute it's implicit if not explicit in the statute because as to if you're actually a lawyer one remedy which is it allows the court to stay the border where the border is not state in explicit in the statute is this choice you either are going to the union where you don't bargain with you if you don't bargain with the union judge ran out he said in that decision issued on friday in the davidson case you choose the option of committing an unfair labor practice so the statute established by congress the procedures there was congress was so binary choice or not nothing in between because it makes no practical sense what if to you what if the employer says you've asked for ten sayings we think that nine of them are fine  but the th thing we think is just confidential and we'll give it to you so long as you sign a contract a border confidentiality agreement we're not bargaining this is you know taken their leave it this is what what what we'll do but we'll give you all one thousand and ten things as long as you sign this agreement and and the union says no you know you have to bargain what happens in that case or what would have happened before this decision in that case the union would have accepted the employers offer but that would have constituted under current born law and l by the scheme for example the employer is faced with the dilemma in all sorts of circumstances it can't make unilateral changes your honor without bargain with the universe so the dilemma is that you got a procedure in the board adopted here avoid that when it avoids that dilemma on confidentiality but it also the way the board adopted it avoids it on any issue regarding information request for example they say this applies to a union requests that might be burdensome or relevant or not clear for example the nd or less i mean to a customer complaints if they were unclear as to how far we want water we want what do we really want they could have certainly clarified that and that's what marketing is about that they chose not to do it so it is only a dilemma but it's a dilemma that applies in every other circumstance with employers either testing certification or withdrawn recognition refuses to bargain with in the statute said i'm not giving you anything because if i do it'll be construed as bargaining and i want to challenge the certification  so the union has made several information requests d the union would would request an unfair labor practice charge for refusing to provide the information and for refusing to bargain when would the union be able to actually get any documents under the prior regime it wouldn't be until after the certification issue had been resolved by the board right correct but it would have gotten all those documents immigration retroactive to when it made the request as opposed to only potentially perspective after it goes through this let's deal with it and that's particularly appropriate here because you didn't with slot tax and these policy who are concerned about the ones they know about the ones that policies that they have can force and live by so this isn't one of these cases like in detroit edison we've got the confidential i interest of the employees who took the test nor is it the case like in detroit edison we had a psychological test where nobody was seeing the the test themselves it was kept secret and here in the employer offered no evidence as to exactly how confident of these policies are so let me let me try to understand the the impact of the board's decision here you're saying that  now instead of ordering the production of the documents to board is just ordering the parties to bargain over the production of the documents and what happens if the parties can't lift the union as dissatisfied with us with the bargaining over the scope of what de employer wants to produce what happens then information is not really was that confidential or leather to some of the mechanism to provide it that is a long term delay what we're seeking to avoid in this case allowing employers to then delay the production of any binary choice either bargain or you don't bargain and if you do bargain on a subject you waive the right to challenge the certification and you've challenge waive your right in a successor union to least resolve this question because that would have been a form of bargaining really can't avoid as a form of warning but it doesn't waive the right but such wording is not practical because there's no way to piecemeal bargain but are going to meet under the boards just to continue the questions judge welcome was it wilkens was asking you under the boards the remedy it will result in bargaining over it'll result in one of two things either bargaining over the information request or additional questions remembering on a night when you know when you when you make your argument that way it just sounds like to me in the board is decided for whatever reason step procedure latest makes more sense than the previous rule but i haven't seen yet why why that creates a statutory fix that you're a problem because the this court in the has said wanted to do was to was to allow the employer to bargain an accommodation of danny confidentiality issues with the union that's piecemeal bargaining isn't it is consistent with the statute is it or is it i really don't think it is the reason i've explained that it's not effective not going to do any good for either party because you're focusing upon a very limited sphere certain policies that may or may not be confidential and you're not worrying about the contract so it doesn't do you any good in my view to do that it's very impractical desireless again this principle that the courts are recognize the if the employer refuses to bargain over information requests or anything else and the board ultimately consider set to have been an unfair labor practice does the board consider is the board required to consider the employer's confidentiality concerns or are you saying that those complaints but it also requested the personnel files of all members of management just of were the sake of this hypothetical you saying that if the employer later loses its challenge to the certification it has to turn over all of the documents at the union requested including the personnel files of all members of management no because there's a different issue triggered your honor by that question which is relevant management personnel files are not presumptively relevant to you would have to show some relevance but in this case remember the board found the unit request for these policies relevant so you get to the next question ok it's relevant you we would not be in time to it and that's been the scene in this case with the board found for example that so secure numbers weren't relevant and didn't order their production so so relevance isn't waves but confidentiality as is waived that's right why right secrets trade secrets those get turned over without any sort of requirement that they be kept confidential by the union the union could sell them to the highest bidder or do whatever it wants with them post them on the internet i understand that theoretically there could be some abuse here with the board has referred in its decision to any views by ever getting this kind of information remember that would be contrary to the things that under traditional board law if you have a confidentiality concern and you want to raise it you've got to provide some evidence all the employer given this case is simply state in its response in our show because all these are confidential no factual information no evidence and in our position in that having failed to do that that's a waiver in the other three casino cases dealing with this including one the board said that's not it doesn't effectively raise confidentiality because it's just a generalized concern for confidentiality without providing any specifics as to why it's confidence and no we haven't nothing we don't know whether these policies are well posted to the public in the casino when you walk in and say here are the rules of the road don't forget we're watching you in we don't know that the slot techs are under any formal or informal confidentiality provision we don't know where these are just the rules in the many gaming commission we know anything about them information to start rather than delayed the bar meeting process from the get go in the st contract we've got a year before theoretically and working with the recognition so this becomes an interference again with this basic concept right if you don't offer to bargain about you know how it changes information that's the way the entire system works the board is never carved out in the exception until this time this case to that concept that the union has to bargain about and the employer has to bargain about all mandatory subject and provide all relevant this point why do we have jurisdiction to decide this issue it's if it's because there is a balancing test and i understand that and the balance falls in our favor here strongly because as to these customer complaints we it helped that were employer the late providing the information that was a harmless union and its real harm to the union in this case because not only is it delayed potentially for years just as a not as out for training purposes or to find out why he didn't discipline evil so the board has narrowed the circumstances and the late both of which are horrific i'm confused i thought the only thing the board decided with respect to customer complaints was that they're no longer presumptively no i think they decided they're presumptively relevant when the customer complaint has an impact such as discipline or you don't get a wage increase they irrelevant i think once you say relevant for this purpose it means presumptively relevant and as long as we can show with what they said was as long as there's some evidence that the customer  serious seek some reinforce the end of our order against the christina and denial of the unions petition for you so if you've been discussing what the board did here in this case is revise a remedy in information requests cases such as this where the employer has asserted a confidentiality or any other legitimate interest in requested information while it's pursuing judicial review of the union certification and as a board there really explain their new accommodative bargain in remedy reconciles past conflicting precedent and does appropriately balance the competing equities between the employer and the union that are at stake and here the board reasonably applied its new remedy in which the casino timely asserted its legitimate confidentiality interest in information related to security and precautions against illegal gambling so to begin with a discussion that judge wilkins was having  with my stand upon and mr rosenfeld here with regard to the dilemma i believe that the union concedes that in these situations there is conflicting precedent where this dilemma where is the board called it a catch twenty two between on the one hand if an employer has to offer to accommodate an interest such as confidentiality this court and other courts because the board is held that means no longer can the board challenge or test certification because it must offer to accommodate such an interest and in doing so it then takes a step into bargaining which waves its ability to change test which it's right to test certification and in this case all the board did say you know we're still going to put the employer on the hook for a violation there is still a while action of the act even if the employer does not offer to accommodate  something that they claim they have a confidentiality interest in how many rocky for one second for us be clear on what the board's position is so is it your position that if the employer says you've asked for ten things and i'm willing to give you all of those ten things so long as you sign this confidentiality agreement union but if you're not willing to sign that then i'm not going to give you those things  the law is with the board to within its discretion to assess remedies under ten c of the acting to provide a remedy so long as it's not contrary to the the board decided that in this narrow circumstance board particularly cognizant of that decided it will still find a violation but what it will do is allow the employer if then only if it presents a legitimate there's the check on just any sort of claim a legitimate confidentiality interest for example here where it's clear on its face that should casino have to turn over security trade secrets money laundering prevention those types of things but again so prior to this case if the union refused to bargain at all and refused to provide any information because in so might waive their rights to challenge the certification and the union brought well an unfair labor practice was found at that point the board could  order that documents would be turned over right that's correct the board would order that that's true but under detroit edison wouldn't the board have to give due regard for confidentiality anyway at that point you know i just don't understand where this waiver when she comes for her well under detroit in detroit edison case there it was not st of all a case where there was the test of certification also ongoing so there were so the difference there is that there's a different sort of there would be a test for confidentiality that would have to take place however however if there were one who is the not only would there have to be a confidentiality interest shown by the employer but even under detroit anything under board law the board rather the company would have also had to offer to accommodate how maybe the confidentiality interest at the time the request was made and that's where the conflict in this case part of the board law and problem solved i'm sorry i guess i'm not sure which part of the board like the fact that if you don't offer to accommodate at that point you're you're there is a waiver when the board decided that the best way to reconcile it is mr rosenfeld said there are courts including this one who have held that any step toward bargaining such as accommodative bargaining like loses that right the board you said well information and allow the employer to challenge the certification well i think i'm may not have asked my question clearly so my understanding is that before this case what would happen if employer refused to provide information refused to bargain over providing information and and it was later found to have committed an unfair labor practice  for doing so and and any challenge to the certification was his was rejected then at that point the board would simply order the production of the information that had been requested yes that's correct there wouldn't be any bargaining over it the board would just order that's correct wouldn't the board at that point have an obligation under detroit edison to consider the employers confidentiality concerns even if the employer hadn't hadn't  accommodation or bargained earlier there wouldn't be in your honor i don't believe there would be that sort of obligation or any process if there was such an obligation because of the way the law student at the time prior to this case and so the board rather than overturn i believe that that precedent which you know there is a good reason for a violation to be found when an employer starts to bargain down one path while at the same time challenging the certification that particular piece that violation overall is there so that an employer can't for example start bargaining and then pull the rug out from under the union by saying well actually your certification is so there's good reasons why  constitutes a violation but what is there the beauty of what the board did here is that in changing the remedy for specific cases in which there is a mechanism a legitimate in a pleading where there has been is showing by an chose to do here i guess all i'm saying is that why is there anything inconsistent with the statute for the board to just say that from now on when if an employer refuses to provide information provide information and that's found to be an unfair labor practice we will order turning over the information but we will no longer rule that the employer has waived any confidentiality re objections or protections that it has we would just simply take that into account when we ordered up production of the documents and and and order them subject to whatever confidentiality requirements are known are appropriate in is type of narrow remedy correction does because now there can actually be bargaining over the scope of that and that could be worked out by the parties which is something that the act contemplated would prefer rather than a separate unfair labor practice proceeding and therefore under what you have posited judge wilkins there may not have been any sort of interest that be employer would not have to show during the course of anything leading up to the board issuing its order any confidentiality interest and then it seems to be the hardest would have to start over from if they did earlier point which we delayed delayed things further so i think the board's choice here which was well within its ambit to do to continue to find a violation and yet  in certain circumstances change the remedy actually does best for fill the interests of the employer and the union in these circumstances does that answer your question well what about all of the the various forms of shouldst that petitioner says that this places it in particularly its inability to really you know get started with the bar inning and really represent the union effectively because it can't get basic information that it needs to begin that process sure i mean the board the board wasn't it near enough back nor the board actually discussed that at some length in its recent decision to believe it was on page six of the board's the board's decision in order where they said that they recognize that there may be some delay even after the certification is upheld but the delays they noted can only happen where there's been an asserted confidentiality interest that it's deemed to be legitimate and given that in this instance there was such a legitimate interest that was identified the board found that it's going to choose not to ride roughshod over the competency ality interests but to allow there to be accommodated bargaining and i do think that it's possible even if the board is bargaining has begun not over this information but the parties to get started and that's what the board was trying to do this was a summary judgment motion that the board was trying to push forward as much as it could so that certification issue could be resolved and therefore you know holding up just part of the information was something that the board considered is not too prejudicial to the union while at the same time allowing it to carry is there another record to indicate whether these slot technicians sign non disclosure agreements with the employer i'm not sure i don't i don't believe there is i'm not a what i'm not aware of there being any  but i do know the reason i asked that is the union is not totally without resources and getting ready to bargain because it has available all the employees to talk to to find out what assuming that there is something that can be said about the policies rather than violating a non disclosure agreement and the union is totally free to talk to its members to to get information that's correct and in fact if during the course of the accommodative bargaining the parties can resolve it in the union can agree well we don't need x y or z or the company could say what if we give you a b and he i mean they can raise all those kinds of things even had there been some sort of non disclosure agreement anything can be hopeful even that's the hope can be worked out in bargaining and it to the extent that right here this solution that the board has is has crafted preserves you know precedent  it in the circuit courts as well as preserves the fact that there is a violation of the but also just the remedy makes it such that any legitimate interest that it employer would have to offer to accommodate is no longer something that has to be done such that the employer waves its right so we don't know how does it work if if the employer and the union bargains over confidentiality and they can't reach an agreement here but the employer is acting in good faith and the union is acting in good faith but they just can't reach an agreement right or have any authority to resolve it or is it just the employer never turns anything over because it was acting in good faith and  they couldn't they couldn't the bargaining didn't reach a conclusion right if there was a good faith impasse and there is no charge filed by the general council that this was somehow a violation of the duty to bargain then yes you are correct th but the employer has agreed to or not at that time should there not be an unfair labor practice complaint that's correct would not be turned over but the hope is given the bargaining process as there always is that there would be some give and take in that something would be result or if the employer w acting i mean the check on the employer deciding to not act in good faith is exactly as the board contemplated an unfair labor practice charge where that could be litigated such that the information the you know the board in the court could decide whether it was required to be turned over but thank you and what about the the authority and the precedent saying that the board can weigh confiden that its decision there is one case which it is otherwise never the board has never followed its traditional practice has been what the president had been before which is allowing it to be turned over and the board just decided that the better way to go would be to handle it the way they did because because it's gone back to the region but the union says it in its reply brief that if the region rules against it it has no way to challenge that issue there's no appeal it is not right sure in the very unlikely chance that in this instance the region or the general council didn't issue a complaint if the company challenges the relevance of a more specific and demonstrated relevance interest while it's true if there is no complaint issued that is there is there is a reviewable of the test in perturbs of ripeness we talk about rightness is whether the harm is to the to the petition the board's position is that simply because there is a very small risk that there would not be any complaint issued should there not be information provided here then the fact that the union wouldn't get to challenge the decision doesn't outweigh brief the sheet metal case that we talk about in terms of when if there is an issue and it comes back if it comes back up then the board would be able to further crystallize its decision on what is presumptive versus what is not presumptive but yet have asked a fair question about why the union can't go to its members and that is a pretty clear answer the members may not know they may have conflicting views in the board as always help if the union has an alternative source that doesn't there is this compliance proceeding but the sheet metal workers case the judge taylor referred to was but a situation where the issue of back pay money only with going back to a compliance proceeding with the issue of burdens of proof could be raised and lit theoretically what the board could have done in this case and i think is still available is to say all right we're ordering the production of these documents and we're going to leave to a compliance proceeding any issues about confidentiality or other issues that were raised by the employer in a cut in a compliance proceeding and that's what detroit have us and says and all the confidentiality cases they say in this court is already recognizes in the o c w case that if the parties can't resolve it negotiations unions iles an unfair layer practice charge and then the interest or balance the employer's interest in confidentiality is balanced against the union's interests in need and if the balance is in favor the union the board orders the employer to turn it over and that process is the way the board does it that could have been a solution to this problem here to give the union a fair chance to resolve it just wanted to give us i recognize that there's some track in this to the board's position here because it avoids the rock and a hard place the employer put itself in but the statute says that's it's joyce it either bargains or doesn't bargain can't go half way because that would