good morning may please the court my name is nicholas writer and i represent the petitioner across respondent in this matter staff co of brooklyn l l c this is a petition for review of the national labor relations board decision in order in which the board improperly determined the petitioner staff co violated section eighty five and one of the national labor relations act the petition for review should be granted for three reasons first the board improperly determined that the pension plan continuation policy at the center of this case did not constitute a waiver of the status quo obligation to maintain pension fund contributions after the expiration of the party's final collective bargaining agreement second in the alternative the board improperly rejected staff goes alternative waiver argument namely that the union alternatively waive the status quo obligation by failing to diligently request bargaining after staff coa had to follow the pension plans rules you had testimony from the lead program representative eric smith lead program representative from the union that's joint appendix page nineteen he testified you have to follow the nies the pension plan rules joint appendix page four twenty the final page of the party's final c v a extension agreement it says that the sole and exclusive authority to determine pension benefits rests with the nies a pension plan that's in the bargain fo document between the employer and the union in this case they agreed in their final collective bargaining agreement extension that they were going to be completely subordinate to the rules of the nice in a pension plan and the continuation policy states that upon expiration of the collective bargaining agreement that staff has participation in the pension fund well and unless there's a signed in term agreement or extension agreement and does you're going to pend on participation an in the plan our obligation to fund them plays into it in in the sense of course we're talking in the court's precedent yes but it in the sense of the definitions no your honor it's a distinction without a difference really because here unlike some of the other waiver and non waiver cases that are cited by both parties we really have two bodies of case law right we have cause for trucking in oak harbor freight lines the waiver cases on one hand and then we have a body of non waiver cases schmidt tiago b m s general tire and rubber and in none of those non waiver cases that that the board so heavily relies upon another those cases they talk about upon the expiration of a collective bargaining agreement whereas in our case and really like coffer trucking they talk about what happens upon the expiration of the collective bargaining agreement and yes as your honor points out the board is trying to hang its hat on on the use of the word participation in this case instead of the use of the word obligation but we can look to the parties past practices here and especially the very telling admissions from the union's lead negotiator you have  don't know so i think i mean i think stronger for you know is cost the cost or no harbor and you know the language there that's quite close analogous to the language here is there any anything that we should be cognizant of differentiating fun and for people not as steep as all of you are in this area that could just define distinctions  then there's the guys a pension plan which is the entity that creates the rules and is that is the that's the entity on which the letterhead is stated for example the warning notice when when all parties were warned that staff co was terminated as a contributing employer that was a nice on a pension plan letterhead but to address your honor's comment about belts and suspenders you know that's an argument that's made by the union and the board and very significantly in in that portion of the brief page twenty four the board three for example they call the path of least resistance not belt and suspenders there's not one citation to the record in that part of their brief they can't cite any testimony or any documentary evidence that that was the real reason that they executed five interim or extension agreements in less than a two year period the evidence that we have is michelle green's testimony which she stated when she was asked point blank why did you execute so many these agreements why did you rely the status quo obligation she said to make sure pension fund contributions would continue maybe one of the most important documents in this case is michelle green's october twelfth two thousand and twelve e mail let's join appendix page one o seven that's the cover e mail that she sent to the union's lead negotiator mr brian clark that was the first time they signed one of these extension agreements and she said to brian clarke quote hello brian we need to send the signed interim agreement back to the fund see attachment to continue the pension benefit in the event we do not reach an agreement and to say to continue staff those participation she said to continue th union and she was the one who negotiated and drafted the extension agreement so some of the best evidence we have about the true intent of the parties here which is that at the center of this case but that there  but that section is defining an employer under the plan whereas the the policy for the continuation of pension fund coverage upon the expiration of the collective bargaining agreement that's speaking directly to what happens to the employer participation in the pension plan upon the expiration of a c v a without an interim or extension i guess my point is that the the board in its decision and the maid of the state so that we can distinguish between your to the employee s right so you could you could stop participate being in the plan but still have obligations to the employee not under this collective bargaining agreement remember this is a status quo case that extends the obligations in the collective bargaining agreement this collective bargaining agreement said pension benefits had to be through the nice in a pension plan it couldn't be through another plan that was what the parties agreed in their collective bargaining agreement that's joined appendix for twenty especially it said that the nicer pension plan had sole and exclusive authority to determine the benefits and pay for plan participants and to make changes there too which would include the pension plans ones they're the provider but if they went out of business presumably that would fall away and yet the employers obligation would continue i mean if they went on a business you wouldn't think well you know when when and i starts providing a plan that is the sole determinant of its terms right yes your honor but that this collective bargaining agreement does not say pension fund contributions in a general matter to union members that says pension contributions through the a pension plan that's specifically what the parties agreed here no more no less i guess that's why i was asking the question because i was i was probing you know surely that doesn't mean the selection of this plan doesn't mean that if this plan phrase we'll know at that point and that actually segues into the alternative waiver argument at that point the onus is on the union to demand bargaining over the effects of the the failure in this hypothetical of the nies a pension plan and that's year participation in a verse or in that they were going to discontinue pension fund contributions and at that point the the burden was on the union to demand bargaining or otherwise it would waive the status quo of the patient that's an alternative waiver argument that the board the board make it right and that is a strong departure from court precedent from this court's precedent and from circuit court precedent around the country there's two types of bargaining demands there's an explicit bargaining demand and an implicit barking demand the board it appears from this brief knows better than to claim an explicit bargain demand here because there was no express words that said we here by demand bargaining on post contract pension fund instead the board is arguing an implicit bargaining demand was made and this court and board president has held that when it's an implicit bargain a demand situation that needs to be some indicia that that shows the desire to bargain there needs to be a suggested meeting place a suggested meeting time them for the court's consideration and all that undisputedly happened because we my client is a different version of events but even if you accept the union's version of events that what happened that may twentieth meeting eric smith said to go continue put your contributions sign another agreement that's that's rivera's support of the staff goes petition for review for two reasons one by virtue of the fact that he's demanding they sign another agreement that supports the first wave argument that  there was waiver under the policy for continuation of coverage but to all he's doing there is at most protest he's objecting to stuff goes noticed that it was going to discontinue pension fund contributions this court twenty eighth when there it was up right but no your honor there's no record evidence that michele green ever contacted brian clark bryant park offered unrebutted testimony that no one from the union ever contacted him and it's very significant that the administrative law judge in this case found that from may twenty second to july thirty one there was no bargaining demand from the you know it's going to look at five sixteen left column second paragraph that's your last sentence of the second full paragraph nevertheless green stated that she continued to ask mark for to respond to resume its contributions to the pension fund down two more paragraphs the first sentence of that paragraph as testified by smith green confirmed that the union did not request to bargain with sappho between may twenty two and july thirty one the board in the board concluded ultimately conclude in this case where they were they say that there was no failure to bargain or no waiver by the union  so i didn't know whether that meant that there was no written request to bargain as in the very next that's what they're saying that if i may your honor you're touching upon one of the most important issues in this case and that is the very subtle but very material and and well established distinction between merely protesting an employer's proposed action and actually making a demand for bargaining this court in prime that's not enough for the union to satisfy its affirmative obligation to demand bargaining and that is an alternative crown for waiver and this inconsistency that they are owners pointing out that's just yet another reason for review to grant the petition for review in this case the board majority gave the union a complete pass on its failure to demand bargaining and the board is now trying to say that this may twentieth meeting was somehow an implicit bargaining command at most all mr smith it was object to the employer employers proposed action at that time this court and the board's precedent has held that's not enough and that is another reason why the petition for review should be granted please the court jared cantor on behalf of the national labor relations board or your out assists staff oh just mentioned in its opening part of the argument that this case is being litigated in front of the court on its affirmative defense an obviously it did bear the burden on all of them you know there certainly is no contesting that there was a statutory obligation that then they ceased to honor it and that there was no bargaining so the elements of the violation of  there the question then just is whether they met the affirmative defenses that they are urging and respectfully the boards and that's that they did not turning judge will consist of the the end of the opening part of the  argument i think what the part of the d n o that you're citing there is talking about is that there were no written that as you pointed out that the next sentence there talks about a written and july thirty first is when the union submitted a bargain demand to renegotiate the entire expired contract because one element that kind of is not as heavily discussed in the brief but comes through in the decision orders that a lot of what was going on here was being driven by the fact of ok we're we're not going to have any more employees up now now we are things you know the state court litigation kept postponing the potential closure of this facility so once it became clear that it was not going to close on may twenty second and then we finally by july the union made the decision to submit a full written bargaining demand and part of there was a question of they had not made a request to bargain about the entire contract that was out this particular continuation of pension fund correct correct that i believe is what she is testifying to there and certainly her looking into reading her testimony entirely in the rest of the decision here allays i think any concern that maybe that might have been in artfully stated that certainly when you read those two sentences july thirty first is talking about the demand to negotiate the entire new successor agreement which the parties had been presumably holding off on doing because it seemed like staff go would have no one ploy so it would moot the question then on july thirty first when it becomes clear that saf was at least going to have these four employees maybe not indefinitely but into the future the union then requested negotiations for an entire new successor agreement and i believe including on this issue about pension contributions so i i don't certainly do not read that as company would urge that that is the board they're saying in contravention to the other parts of the decision and the analysis that they're in fact had been a demand on may twentieth and then certainly there's the follow up on july not so so the board and the and the able jay both seem to find that there was a demand  the context it was in which it was made you see if the under other side understood what was being asked of them you look at the cases where you're talking about protests or just complaining in here you another agreement it's stay current and sign another extension so you not only have a demand stay good hearing from irving area that he complained about if you're not doing what you ought to be doing well you're out of this problem this might be a different case of i was don't stop paying and that was about it but here we have stay current which the parties everyone understood what that meant there's certainly there's no contesting that that was not understood and then we actually have a proposal and certainly this is not a case of an initial a newly certified union where they communicate to an employer you know the hundreds of terms they want to talk about here the issue that the demand goes to what the militia was and it was we're not going to sign another one of these so the demand is stay current keep keep making the pension contributions honor the status quo and you a little bit of the icing on the cake which is an actual proposal sign another extension or interim agreement and you know as and at that point some of their other arguments kind of go to  issue that you're just not talking about which is then whether there was good faith bargain me there firmed of defenses just there was no demand and they talk about explicit or implicit and the board here the question really is is there a qualified there is or a demand is what was said qualify as a bargaining to me and certainly he did not say i care by demand that you bargain with awesome and i don't think that act and border law certainly require something that detail and counsel talks about crime services but there the court says in all the things he cited such as those type of thing and so therefore it was not the court in prime services i don't think was limiting it to it has to be these are the type of things that count as additional and it doesn't make a difference in terms of the the reasonableness of the  reading of the facts here is that this is not you know the u a w at the height of general motors function thousands and thousands of employees we're talking about maybe a relatively informal situation with former employees being covered for half a year means that it's a relatively small situation with people who have dealt with one on there quite a bit well which is that does that make any difference to me no i don't think so you're  certainly after so this may twentieth meeting was about the big layoff that was going to be coming my recollection of a record is thirty nine employees continued on for several more weeks or months and then we get to the point where i would leave it to intervene or to i guess become out extra record evidence but it continued up and through the decision in order it still had these four people working at these school based so it's so it still has four employees in it it might have them to till today so you basically have four employees and certainly a small unit but it's not a unit of one so it still qualifies who have been working without their pension at this point and so i don't think it makes a difference and certainly there were new agreement either that a new agreement as a visit december so it picks back up as of december  the same year they're forty twenty forty i'm sorry maybe this is better for intervene it might as that might be a better in terms of where the parties are now and so back on your sweet spot it can you help me distinguish oak harbor how this this case is not which require contributions the employer in that case agreed to contribute them until such time as it notified the union in writing with a copy of its trust of its intent to cancel such obligation so there we have language in either the pension agreements or trust whatever the operative document their trust and there is a trust of scription a trust a church an agreement yes so there we have as the board found something that clearly unmistakably indicated to the to the parties that in that case provided it gave the notice in complied with that that an employer could cancel such obligation and what is the obligation referring to it's referring to its bargaining agreement post expiration bargaining agreement obligation to provide  pension contributions in that case and i think is that this court recognized in enforcing the board's decision in that case against the union's petition that when you're looking unilaterally with regards to the status quo post expiration in is that language allowing the employer to act unilaterally with regards to changing that sas code to to alter it in some way and respectfully the language that we have in this case is not heard it is not cost for despite the protestations of counsel and i think co argues in this case the employer's participation and status as an employer under the fund shall forthwith employees shall no longer be credited under the plan than there's a written notification that the employer is no longer maintaining the plan and that the covered employment of the employees terminated and so i take it from what you just said that i had thought that you were hanging your hat on the difference between participation and obligation but it sounds like you are hanging your hat on the affording of the employer of inability unilaterally to express an intent to cancel not knowing i mean certainly wouldn't when you're if you're trying to do a chart of which cases fall in which side often the deciding the language that the board law looks to is is the language that the party is urging satisfice cleared a mistake will does it talk about the employer's obligation or duty to whatever the issue is and does that language talk about them being able to act unilaterally with regards to the language here does not talk about the employer being able to do anything this language in the continuation policy talks about what the trust is going to do to the employer but it doesn't talk about i mean certainly i could we could temper wit language a million different ways to hypothetically get over the hump by inserting you know deleting sentences but respectfully it's the board found and i think reasonably that it is not cost or it is not ok for and and and maybe it's one shade of gray away from all the cases that they say are completely i guess  and say what it is you think that distinguishes this because unlike in oak harbor in carthage one there wasn't a discussion of it the employers ability unilaterally to a couple and we've pretty recently decided in oak harbor that something that sounds an awful lot like this was a terminations and so help me out well  again what i would come back to is that although not necessarily requiring the word obligation but maybe in a logic class you could make that inferential leap and und some other standard judging you know does this language indicate something but when we're talking about is it clear and unmistakable without having without talking about the employer's obligation and where is that obligation derived from striving from the collective bargaining agreement and because that's expired it's deriving from statutory law as an obligation that it's it's certainly that there's no question that this language isn't clear isn't unclear it's but it's clear to an entirely separate question which is what will the true the pension plan do to this employer and so if the c what it's it's only divorced in the sense your honor that the status quo was pension a pension benefit in the company contributing to this  i mean it certainly is relevant but whether that language is a clear and unmistakable waiver of the union's right to bargain about the employer acting you know acting once it stopped signing these things you know what was the union obligated or what was the unit right at that point and that was for the company to come to them and to bargain about what would happen next if they were going to harbor and here is one that one is the language the dress is the right of the employer and in the other here the language addresses the right of a third party and that is what the court what the what the board and the courts have this own court has described the board's case law requires that the language go to the employer's obligation rather than to a third party's rights and following up questions the judge  asked earlier and i think they go to this issue in the a possibility issue a number of other issues that the the board has considered situations where the language of the contract states the contributions will go to fund a and for various reasons funday will not take the contributions the the union changed the employer only wants to give the old rate of contributions and the fund will not take the new rate and those cases christopher street owners cited in our brief and clear plain moldings cited in our brief the court the board did not hold property and say oh well the language has a lot of that fund so the employer gets to keep the money and the employees here the nurses get no benefit from the part of the contract that was devoted to pension benefits in each of those it said they had to give notice they had to bargain with the union and there might be alternative ways of providing the benefits even though the contract language talked about one fund so i think this is actually very helpful in the sense that yes in the absence of any further action the term of the bargaining agreement here terminates the employer's participation in the fun and the employees service is not going to credit is the plan the employer is not going to maintain the plan but that is not the same as saying and actually this is off the table as a matter for future employers humphrey does not do anything so so without bargaining on it yet the thing dies on the vine but the question is whether it's gone that one step further that the board found and we affirm carver to the point of saying and this is no this is off limits as a subject for correct and i think the board's case law in the case they decided about the change the fine reflects that is it's not off the board i want to address you very quickly wanted to or the other points raised by counsel before hand in the court stefan makes it sound like at the may twentieth meeting was an offhand comment at the water cooler to the staff goes director of technology i you know we really don't like the fact that you're doing such and such that's not what happened here and judge paul art i do think the course of dealings between the parties is relevant and actually it supports the board's decision these parties for a year have been dealing with uncertainty and the way they dealt with that is this the union would say we want you to say current we want you to sign an agreement and the company and the company would do it that's exactly what they did on may twentieth that's exactly what they did are in july knife they didn't say we don't like this they said we want you to sign this agreement and staff don't know exactly what was being said because that's what they have been doing for over a year and a half  and might say in one of the cases we cited imperial house condominiums to seventy nine a large b one two two five a union requested that instead of contributing can we keep getting back to this instead of contributing to plan a we like it a contributor plan b and the board concluded that was a proposal but that was a request to bargain because it was a bargaining proposal and given the other side a bargaining proposal is  request to park in the indian river case which we also cite three forty dollars before sixty six the the employee said we're going to do such and such and the union said that's a mandatory subject of bargaining and the board said that's enough you don't have to say we want to bargain because it isn't saying it's a mandatory subject that's the way parties communicate in the real labor relations area and that's exactly what happened here i want to go to for be on the record w question of impasse staff go at times below raise the question of impasse and then withdrew the question of impasse and as i'm sure you run a knows it's a difficult area impasse and if you have a written agreement and a written extension it'll any confusion about that and finally i think it gets sent of your comment about your question about did the company attempt to make the contribution was a telling question and the is no the company didn't want these cuts i mean i understand why they didn't want contributions accepted so they didn't want to make the contribution and let me just point out four factors that go into why it's not clear how the fund would react to the circumstance and of course staff go did not call any representative of the fund at the hearing so there is no evidence and it's their burden the first contract extension agreement which is that the record of three eighty three was reached ninety days after expiration of the prior agreement not supposed to happen and we supposed to have a sixty day cure period it happens no explanation a record but that's what happened with the first agreement which might have led mr cook the screen and mr smith to conclude they weren't so sure that the fund would not accept these contributions and one last thing i'll say about the fund like many institutions they have two point zero three of the plan a big policy which is that the record at one eighty eight there's an employer who status as an employer has been for terminated may be admitted as in a ploy or according to such terms and conditions as the trustees decide no one knows why their contributions would have been accepted or not because the contributions were not offered we would urge the court to enforce the board's decision thank you thank you mr writer we said we give you a couple of minutes of rebuttal even though we used up all your time with lots of questions thank you your honor if if i may just briefly to judge welcomes point about  a five sixteen and the part of the elders decision that said michelle green contacted brian clark over ten times if you looked at the citation in the administrative law judges seconds there are five sixteen he's saying page eighty of the transcript which is i'm joined appendix page thirty five if you look to line eighteen on that page michele greene give that testimony in response to a question about what the parties did after the first very first c and twelve that is when she said they spoke approximately ten times that she and mr clarke's book approximately ten times she's talking about things that happened before the expiration of the final collective bargaining agreement and twenty fourteen she's not referring to that but suppose it ten times that she and mr clarke talked over the summer of twenty fourteen when the final c b i expired and the board neither the board nor the union of taking that position that's a factual matter in their br secondly the employer and call for an trucking did not have a right to unilaterally cancel those contract pension benefits yet the board still found a waiver in that case oak harbor doesn't really speak one way or the other it's kind of an opposite to this case hawthorne trucking though is very relevant and like the language in court we're talking the language in this case used what happens upon the expiration c b a but it can't be read in isolation because the the bargain for document here the collective bargaining agreement says they have to make contributions into the nice to pension plan and that the nicer pension plan is the last authority on all things pension related the parties said we're going to follow the nies a pension plan rules that that is in their contract and the significance of that cannot be overstated and and finally are owners remember this is a failure to bargain case that's the allegation here and when there was finally an actual demand made this is the part of the union skip over that they really skip over how it was on the union as a matter of law to didn't make their bargain demand known and on july thirty first when there was finally a bargain demand made my client staff go showed up at the table they said sure you won for mission here's a response to requests for information you want to bargain sure let's show up and bargain and they made a good faith offer for an alternative retirement benefit for three b plan that it's in the record it was rejected out of hand the union never made any type of counteroffer it just repeated its demand that pension fund contributions resume in the nies the pension plan but the parties were able to reach an agreement on health disc correct the last discussion about pension benefits was staff cars were about retirement benefits that i should say which is related of course was staff has offered to created fun contribution plan under for three d and that was rejected out of hand again when there was a party demand finally made staff who showed up that's the alleged violation here of section eighty five and one and for that reason and all the reasons stated we respectfully request that the this court grant the petition for review thank you