next case on for argument is in your beaver didn't realize what after that it reduced by time renegotiating the recognition provisions of the collective bargaining agreement it had with i at sea that it would be on this journey to this court we don't belong here the force mechanism of the national labor relations board has taken us into the wrong direction this is not a section eight a five aisle ation under the cat's decision as interpreted by the pittsburgh plate last session instead of i at c if it was upset with how we were in collective bargaining agreement that it had just renegotiated spending a year in negotiations with us if they if they had a question with that they had to remedy the supreme court decision by justice brennan in one thousand seventy one said that justice brennan supported by a majority of the court including the distinguished justice whom this court courthouse was named named after all voted and said that's not a section eight but i violation when you change a permissive subject of bargaining you make a change on it it's not a section eight a five  dispute about whether there was an agreement to remove them but why why this long journey here for these two people are making twelve dollars an hour fourteen dollars an hour belong to employees of the station well what's the big deal here that the deal is that there was a deal struck we do argue and very strongly that at the table a deal was struck between the company and the union representatives there were three separate meetings where this was  essentially that deal's a deal and when you say something and you know to be gang castigated it as an unfair labor practice as close to a violation of a contract that says hey you violated the labor act in a way that was unfair and the supreme court has said it in the you say that the dio excluded cast an uber when there's a side letter saying specifically about him that he's exempted or grandfathered from the provision of the union contract that would have reduced his vacation benefits how can that exist consistently with how can you maintain that there was a deal to exclude cast an uber from the bargaining unit that was agreed specifically by the union but that's what this change provision means when there was a specific agreement as a signed agreement to the c b i that's specific that would have no purpose if he were not a member of the bargaining unit it was dealt with as a vested benefit was something he earned while he why do you make an agreement with the union as to whether he's included in this whether he's grandfather excepted from this provision of the the c v a if he's not part of if you just made a specific agreement with them the cast in your isn't part of the contract at all it would be similar to your own or the noli brothers principle which is you vested benefits are dealt with and we felt in the company felt and i hypothesise assistant in the record is i know  the the company felt at that point that there was a vested benefit those vacation it was while he was covered by the union contract i did one why did the company sit at the table across the table from dole and representing the union arguing on behalf of the union negotiating on behalf of the bargaining unit if we're making an agreement that he doesn't belong there at all but doesn't that undermine the entire contract if he's not if he's representing the union and he's not part of it  it's in the record that's what your guy said and the l j discredited your guy right the he did and he's very clearly erroneous fact finding under the circumstances that i just described i'm not raising that point a totally different presentation to an arbitrator who is deciding what does this contract mean does that make sense it would be had no business in this that's what justice brennan said in pittsburgh plate at glass we were in the context of removing someone from bargaining unit that well no no you're right it was in the context of other provisions and aren't there court of appeals decisions including decisions from this court that say that this is an exception that when you take somebody out of the bargaining unit that is a mandatory subject of bargaining if those courts of appeal decision had said that that would be a different story they'd never dealt with this issue they ignored it they didn't there you you do a sight word site but don't  a significant difference between whether a person is in or out and gets the benefit of the contract if he is in essence we've got a couple of guys here and and doesn't get the benefit of the contract if he is out and provisions that actually apply to what was a drug testing or whatever else that that tend to be these things that can be unilaterally imposed the supreme court says those i see those as conditions of employment as opposed to who gets the protection of the contract and but the blare of the judge the l j in the case in the board didn't deal with it the way here dealing with it at all they didn't try to they didn't even all they did with pittsburgh play class if you look at the say the judge's decision and i can reference it specifically all they did was say pittsburgh plate glass involved the midterm modification well would it have been any different if we had gone simply afterwards and just changed the premise of subject we have to look at those cases in the context and with which they are presented was to project seems to me we don't will we be wrong if we apply and i'm not saying i'm not speaking for my colleagues if judge in this case didn't deal with it the n l r b didn't deal with it they just ignored it like it didn't exist as a principle and perhaps because this is perhaps because they have a twenty year history of the n r b taking this position in these kinds of cases and they won some of those cases in the courts of appeals and i understand you can make an argument that they have they're wrong and they've been wrong from the get go but it's not exactly the case that we're writing on a clean slate here now and that the you know the supreme court has decided this yesterday and they've maintained this position and why on earth doesn't anybody pay attention to it the courts and the n l r b have distinguished this particular situation as being special and may respond my time is up at this point or i can yield for a bottle respond to judge lynch and then we're going to let ms jen speak i think that once confronted l r b needed to go through a rational process to destroy the term and why this principle of law doesn't apply and the thing that they chose the mid term out of of it's mid term modification versus an implementation makes no sense that makes no sense at all to say a mid term modification would be something you could do and that's permissive bargaining that's protective words if you go ahead and try to change the contract so it would have been lawful and ill or b s opinion following that judge's decision had we just changed the contract modified nat i don't think is a logical that there was no mid term modification of the contract here the judge did not say if there had been it would have been fine the judge said this is an alteration unit scope the contract itself to not change the recognition clause is the one that was proposed by the company and agreed to by the union there was no change to the contract the entire basis for excluding these employees from the unit was that they were purportedly supervisors now substantial evidence in the record shows that partners or so the recognition clause in the contract was in march of two thousand and fourteen i believe the contract was signed a march twenty fourth and the company then said the two employees were out of the unit within a week they said they were out of the two pittsburgh plate glass actually talks about a mid term modification of a contract term so in that case it was dealing with retirees health benefits and the issue there is that retirees are no talking about permissive subjects of bargaining in particular retiree health benefits neck ace it was not talking about in of attrition scope every case that is looked at an alteration unit scope which goes beyond the contract of the a unit a bargaining unit is determined not just by what the parties agree to at the bargaining table bargaining unit is determined as in this case initially through a board certification a board election so the board under this in the first instance but then the parties are permitted by negotiation they are permitted to alter it by negotiation discussion of unit scoping the permissive subject of bargaining is generally and the boise cascade case from the d c circuit talks about this a little more extensively it's a permissive subject to bargaining because no one can insist on a term to impasse and then unilaterally implement so for mandatory subject of bargaining the at it would take them past the employer can and implement their final offer the with unit scope employer cannot do so so it's a permissive subject in  of argan unit after that has been read to by the parties and certified by the board that is that basically the position that's correct and there are protocols cases that say just that there are plenty of court of appeals none of those cases the said thickly say and therefore pittsburgh likewise does not apply in this circumstance that's true none of those cases say that i mean i would submit because that argument was not raised because parties have understood that the board has not addressed it in that way so i would not say there are two tiers i would say that the unit scope it has been characterized as a permissive subject of bargaining but has always been treated by the courts in the board as something that no party can unilaterally change as opposed to some conditions of employment which can be unilaterally change on to pittsburgh plate right so things that that are not mandatory subjects  bargaining as to terms and conditions of employment for employees so for example in pittsburgh plate glass it was because the health benefits were for retirees or in the start in case it was because the drug and alcohol testing was for applicants not for employees in the bargaining unit and to be clear about what's at stake here i take it no one is saying that the company could exclude people unilaterally from the bargaining unit that is agreed to in the contract at whim the issue is what is the remedy if they do that that is to say should this be an unfair labor practice in to bargain war should the union say they've just breached what they just agreed to they've they've reached a collective bargaining agreement by failing to treat these two i believe that is a position is that it's a breach of contract i mean it it's also their position that it continues to be their position that these employees are section two eleven supervisors which you know the board found basin substantial evidence they're not and in terms of the any issue as to a bilateral agreement here the board clearly found there was new bilateral agreement here made credibility determinations based on the ovens presented about the negotiations and the company has not challenge those credibility determinations in terms of the just to go back for a minute to the remedy there there are actually two unfair labor practice findings in this case one is the unilateral  employees from the bargaining unit the other unfair labor practice here was the unilateral move of their unit work which is a unfair labor practice because it changes the terms and conditions of employment for those employees remaining in the bargaining unit so these employees here did shoot did shooting work of news stories and editing of news stories which was always you know work which is still unit work and so there's also an unfair labor practice here for removing that work from the unit and they're removing the said this thing about the bargaining unit being special for the first time in one nine hundred fifty seven which is long before pittsburgh white glass and then and i right that was reaffirmed in one nine hundred eighty that it's current but again without specifically addressing pittsburgh plate glass right i believe it it likely was not raised in that case there's also another case we cite in our brief mt sinai from two thousand and one from this court which was an unpublish decision and that addresses exactly the issue in this case thank you thank you very much true supervisors which the company does believe that they are they should be in a position where indeed they are not represented by the union under the statutory framework company has its supervisors employees are represented by the union so that's the answer to that question council raised the point about the transfer of work i would refer to quirk to footnote three where the the board itself acknowledges in its brief the difficulty in calling it a transfer of work versus an alteration in the scope of a bar the bargaining unit they're defending the point that they thought and they believe that consistent with well they don't think they ignore pittsburgh played class but we can change the composition of the unit said don't call it transfer work of it's not and they close their foot no where it says the board has rejected attempts to characterize a change in unit scope as a transfer of work where the same employees continue to do the work it's not a transfer work it's a change in scope of the party and that's what the board itself would say in the beverly case thank you thank you both will reserve decision in this case but i'm hopeful arguments appreciated