out with the supreme court decision in the allentown maxell as b and r b case which is cited relied on page twenty four of our opening brief five twenty two us to be fifty nine that sets the standard of  not only with what the court said in that case was not only must the decreed result be within the lawful authority of the board the reasons that the board gives for reaching that decreed result must be logical and see that but it was not contested out the board level so we are you can see effectively effectively conceded that there was a violation but argued that the violation was of no harm  local preference given to carpet to members from the local within their jurisdiction so there was an actual loss to that member of and that's what as this court said if you have the name of the case where was judge cures his opinion which we relied on  that at its core but what section seven protects is you don't lose work because you refused to be a union member does job opportunities have to be made the irony of this case is and you know the ones work to the out of work less than two which is comprised predominantly of local members of the carpenters the irony here is that under the prior regime which was a fifty fifty or sixty seven thirty three split all of these people could not only have the crew could be brought to the job under the one to one matching by transferring their membership they actually got work that they would not have been able to get under the prior regime that this replace that's that's the way it's not only really  violation that didn't do any harm and did affirmative good on balance there was the pension element but there was no showing that anybody actually lost out on vested pension rights what the showing was was that a full crew of this one employers workers directed restrictions on employment predicated on you know before you come to me to be you don't come to me and talk about getting hard unless your car keys but inverse right and i think for i don't think it does and we are here our brief it doesn't but we are you know we did wave we did wave the argument by not contesting the violation so it is an uncontested violation but certainly you know what we  for whatever strategic reasons the decision was made at the board level to say that whether this is a violation or not this to strike this down and do what the board is really basically saying here is to go back to regime another full mobility regime where there are similar restrictions on actually broader restrictions on the number of out of town people that can come and the intervenor says well you don't have to do that you can just have a local preference that's tough talk to be lawful and that would kill their members i mean so this was a this was a compromise i think the collective bargaining compromise that not only i don't think there is a violation of section seven but at best it's a highly technical one and through the for the board to come in and take cognizance of that in the face of the damage that shreiking down this provision so that that was what we chose to put our eggs in that basket and i think and the what well when i come back to the reason decision making requirement is one of the board simply the board the board didn't address that at all and said well there is no damage one full mobility is not an anti corruption mechanism for mobility is the right under the new contract for employers to hire anybody they want not an anti corruption mechanism it's a it's a privilege to the contractors that's that's absolutely right but that doesn't address we put out a very strong case that here and we put on that the lead negotiator for the union who explained in chapter and verse what the anti corruption benefit of the one to one matching exceptions are for mobility as we put on the independent monitor the court has charged with oversight over the unit we don't put them on actually it was enforced why are they born to go before a judge berman to make its points and i'd like to know without that without saying we would strike it down but we just decline to enforce it that th think if the court were to say in its opinion was striking this down but we'd like judge berman to in the context of this renegotiation to comment on whether you know this is it would be an unusual procedure i'm sure john berman has the overseer the consent decree would be more would be more say i can i can live without the ones i won you know i don't think it serves that much of an anti corruption then a new charge i mean oh you could work to strike it down but the board always has the authority to come back on a new complaint and you know it's if this if it regarding if he said i do regard this essential and presumably we would hope the board would not proceed on a further complaint by the north these counsel and that would be the end of it that's what that's i think i would probably shake out in practice  morning my name is michael sal go i'm the executive director of the smedley my members are the leading cement concrete superstructure contractors in new york city one of the use that we need to go shape my members work with hundred fifty two hundred workers a composite crew they collectively bargain they negotiate hard for contracts they get contracts sometimes a year on morning vance and some of their contracts last week but for a year or more unraveling this could do significant economic harm to my members and to the unionized industry two thousand the but the new one the union went on strike we have said we had injunctions by this court and after about seven or eight months we extracted significant economic concessions in order to for my workers to go for my contract is to go forward and it's those difficult reductions that that this court would set aside so we're not an environment where you say well if we set aside this contract you fall back to a lower rate which is typical i would fall back to a higher rate we have were in a death fight with with no new contracts the competition is severe weeks tracking these concessions so it would be the point i wanted to make hope i am making to the score is that there are very real consequences to this action which seems like an intern a seen fight between two two locals of the same union and to have a say but i see is a small battle where no one has ever articulated an injury and no one's ever asked for a dime of damages would cause millions of dollars of damages to my car my shits and not my clients but my members it please the court i'm kyle decant on behalf of the national labor relations board there is no dispute in this case that the petitioners collective bargaining agreement violated section eighty one by imposing preferential hiring and based on membership in the new what he would say if if we can found among the cement we contract or those provisions are scrapped and furthermore the parties are equally free to use your us trustee i believe there is your honor but i don't know off the top of my employed i believe someone on behalf of that testified to the board in the board and found accordingly that the film ability on provisions were a part of the anti corruption purposes of the district court's approval select fifty percent of the employees and the other fifty percent would be selected from the out of work list on a first listed first hired basis so this matter was already contemplated by the parties your honor how does this  harm carpenters your honor the full mobility exists only to the extent that the contractor hires a member of the new york city council and whenever they hire someone who's outside the new york city council they have to match one for one from the out of work list and the bit if you anybody can join the new york and the city council right so how does it harm a carpenter your honor it's a straightforward violation of the act to hire someone based on membership maybe i mean that was asking you a different question i mean i know how it harms a union but i'm wondering our arms are carpenter i presume that's what this is all about your new there's records showing that it forces members of the northeast councilor choose between investing in their pensions and health benefits versus getting a job but it's also worth noting that those arguments were never raised to the board so they're barred by section twenty of the act and so when the yes yes your honor that's true but again the question of damages was never raised before the board it was already conceded so that argument is barred by section twenty of the national labor relations act that there's already a violation of the law and that is totally uncontested in the petitioners have not met their burden of showing that these from the full mobility harm provisions serve an indie corruption purpose when first of all they're scrapped whenever corruption is found and second of all the parties can just as easily your honor in those were the purposes for which this consent decree was existing and when it found that there was bad faith with the consent decree no your honor because the full mobility arm provision is not itself an anti corruption purpose and the parties could just as easily replace that with the sixty seven thirty three that the district court had previously allowed of the fifty fifty that the district court had previously allowed so there is nothing essential to the film ability use it it's crap when it whenever there's a finding competitions there are important interests at stake a bedrock principle the national labor relations act is that and attractive employment opportunities cannot be conditioned on membership in our industry the hiring of hiring practices that has always revolved around one problem the problem of the traveler the traveler comes in the way territory and this court actually recognized that issue in ceiling case they noticed that the fifty fifty provision was called the alto of town or matching requirement the law has been very simple you cannot penalize a traveler coming into a territory you can't require them to be a member to get employment benefits they have to be treated equal the advice of this provision is when a traveler a northeast regional council member comes in with their employer the employer says to them i can't keep you otherwise i got to take a member from the i don't want to do that you have to change your membership why do we care first contrary to national relations act that individual and ever been over two hundred fifty of them is placed to make a choice keep your mobility they are to be district council members and there's movement back and forth so and that's never played a role now the problem i have though is we're acting like this is some cute little button you wear on your lapel but it's not there are five things at issue every time a member is a asked to make this choice five things are at stake if they're a carpenter with less than five years in order to keep their job they have to give up their vesting in the northeast regional council pension fund if they're a senior carpenter they're within ten years of retirement they put in their life working for this employer they have to give up their retiree health benefits when they switched to the new york city district council number three when they switched to the new york city district council they have to work ten fifteen or more years to get retiree health benefits under their new health benefits when they give up their membership at the end of the month they give up their membership they give up their health benefits it takes them a full calendar quarter to get new benefits and finally and let's be clear these men and women were told give up your membership or give up your job now it's on conceded that they gave it's conceded they gave up their jobs and there's a whole reason for that if you look at the case history there were some charges going back and forth but that requirement give up your benefits give up your membership keep your job since the inception of the national labor relations act has been the key component now judge berman was never told any of this well we want to act like he didn't know he wasn't told he had experienced practitioners who should have known if they didn't know that this was a violation i take it you weren't represented before i have never been before a judge when you are your client correct   judge berman this is been sitting with his attention for i thought you said no this was the gentleman who was not brought to his attention i'm this collective bargaining agreement was in writing to even when he was as the district court says he's not supposed to make destroy i'm sorry as the circuit court said in a wall and ceiling he's not supposed to make decisions on whether things are a good idea or not his job is was a democratically done some interest to him your honor my problem though is he approved this agreement in two thousand and thirteen the charge was put in the charges been pending now i think it's been over two years this has been actively discussed on judge berman's docket for over two years there are contracts negotiated the other pattern agreement this agreement renegotiated everyone knowing including judge berman that this charge was pending and able to say judge berman can you consider that this what you're approving violates the national labor relations act it wasn't done were still pending this court remained it to judge berman the two men were back in the summer it's still pending a brief was just filed than a month ago dealing with this issue the problem i have is that this court has already said the whole idea from ability has nothing to do with anti corruption you said that i am paid six fifteen of your prior decision with the wall and ceiling this court said the order says very little about the merits of full mobility and states at the most important factor in the district court's decision was the fact that the c b a is a bargained over agreement that was approved by the lawfully designated representatives with the authority to approve collective agreements at six twenty you've also said judge berman isn't supposed to decide if things are good ideas he s'posed decide is not to decide whether things violate the national labor relations act that's up to the national labor relations board and i'm having a mental block there's a very real case that says that apolog process should have been judge berman should have been told straight up this violates national labor relations act or there should have been an effort to renegotiate it or to tell him that and then he could decide what he wanted to do and we could join this problem but i agree with you it's like the elephant in the room but it's not only been ignored here i don't think it has actually here but it's been ignored at the district court level he wasn't told he should have been he's known about this for years we've had contracts renegotiated you heard two thousand and fifteen are two thousand and sixteen it was just renegotiated again this is not some carefully device aleutian this is out and out discrimination against the national labor relations act it's not a carefully device aleutian there are plenty of mechanisms to get around this problem they've been the national labor relations act sets out the standard to congress that they adopted collective bargaining actually relation back to the exactly stop chaos the question is yes your honor the a very idea behind a national is to prescribe some rules put the parties into the room protect commerce and come out with collective bargaining agreements that with the law the parties absolutely should be able to figure out how to  avoid chaos all this collective bargaining agreement i'm sorry there is a contract coming up in three months this one can be negotiated we're talking a single provision in a contract sounds very dramatic that we're going to have chaos the national labor relations act was created the system of collective bargaining to solve that's why we have it you put the parties in a room you have a mediator if you need one you have whatever you need and you deal with it these are not insoluble problems court judge berman's job is to look at that collective bargaining agreement not to judge if it's a good idea if it's valid anything judge berman sole concept is  democratically ratified and does it stop corruption now my problem with the democratic ratification is they negotiate an unlawful agreement they go to their members and they said it's in the record this protects you were job security members you should vote for it because this will increase your ability to get jobs with cement wall and ceiling nonsense it didn't increase their jobs they were sold a bill of goods all it did was have the employers switch people from one union into another stripped them of their benefits so they could keep their job that's hardly democratic judge berman wasn't even given the opportunity to recognize that back at this time it was hidden from him now we're being asked let's delay everything and finally after seven years i'm sorry efforts one nine hundred seventeen after about two years two and a half years let's go back and ask him what i'm going to ask him we're going to ask him if it's a good id that's not his role the problem that i have your own is there's not a conflict here between judge berman's rule and the role of nationally relations that judge berman did not say for mobility is needed to fight corruption but we don't want to have this case on our docket forever while some you know labor relations go on in new york in uncertain ways but at the same token everything is reported i don't think there is a conflict oh because the board says renegotiate this provision now they go back to judge berman perhaps they don't want to now judge berman says i don't care if it's illegal u pholding it or judge berman says i'm not approving it's illegal provision negotiate something else get a mediator and get everybody in negotiate something that's lawful the party still have to do it everything we're doing is talking about pushing it down the line one of the ironies of this cases the district council and in terms of the ability of parties to negotiate the next agreement and to do particular proceed well there's two answers to that i knew yesterday would be good but you or i prolly your honor is everybody's conceded all along that this is an illegal provision annoyance and  they've been able to do that now for years and they're not so the board remedies it there are two there's a contract coming up on ceiling that's why i ask you in thirty if the parties can negotiate this agreement stand but the parties have the ability today to renegotiate an unlawful provision it's done all the time that's what the board's telling them to do they have a choice thinking to go back to the old provision if they want or sit down and bargain that's the beauty of collective bargaining we all i mean we dismiss it we ignore it it's fading perhaps but that's the beauty representatives of the parties of employers and unions getting together solving a problem we have a mobility and one local was trying to prevent somebody under a full mobility regime from coming in this is this is a rise in or much different setting this is it wasn't a consent decree case we have a consent decree here where there hasn't been a history of for mobility there's already there already was for many many years a fifty fifty split or sixty seven thirty three in more recent years so you couldn't have free travelling in i mean you had to hire half for most of those years or  a third from the district council out of work less so that these members actually the irony of the setting is the only only all those happen is one employer sort of game the system here and asked its employees it wasn't they were losing jobs this was a new job and there was a clever employee came to the to the union folks and the union folks were advised you know you don't you may not want to do this if you're losing your pension or you're losing so presumably these people weren't losing there was no evidence that these people actually years i mean that this is really talk about throwing the baby out with the bathwater and you know the northeast council says well there are plenty of mechanisms we can just go back to the old economically disastrous regime you know the employers for tooth and nail to get mobility they made one concession that you know if they're you know they can just go ahead and bring a whole crew of people out from you know new jersey or something they have to match if they do that and that was just as sort of a replacement mechanism for the out of work less so you assure all jobs that there is at least some decent complement of members who could you know take advantage of the membership over say provisions that were put in as part of this whole package deal in two thousand and thirteen so i mean so they say well no you don't have to go back to that economically disastrous you can go but there are plenty of other mechanisms you can have a local preference well i mean that would that would completely disadvantage his membership because under a local preference the courtney's to do here is apply some common sense the board has not applied commonsense the board said this is this one case that shows that this is you know this is a violation of the national labor relations act so you know we're going to just come out that you know we're going to undo an entire delegate compromise in this industry for some to go back to an old economically disastrous regime in order in order to do what or to help out nobody who's been injured  if you have vested rights are you working toward vested rights and you switch unions you will you can be at least disadvantage in that one respect but but it by the same token engine is not a small respect no doubt but but but it's sort of paternalistic to say that because this is opening up job operates in switching the membership opens up job opportunities that that will not be available if we go back what the board says of their ca here in the case that was before it was there was a conceded violet technical de minimus violation the defense was you will do you will wreak havoc on the anti corruption benefits of this consent decree if you force the parties to go back or to adopt a new local preference that would be that was the defense that you should not remedy this technical violation the board did not give a reason response for saying knots we're going to remedy it the board was irrational therefore its its decision is struck down because it did not give a reasoned that i would go back that supreme court decision the supreme court says you may have the to do something but you have to give good reasons for it again this morning the board counsel stood up and said here's the reason we decided to remedy this it's a violation you know you can see conceding violation and the district court didn't say that the full mobility