please the court names tom dowd and i represent petitioner american security programs and what i'm going to refer to air after as a s p s p is petition this court to review a decision and an order was issued by the national labor relations board the board's decision held today as pete violated the national labor relations act by implementing its final offer in the absence of a valid impasse in bargaining as he contends that this finding is not supported by substantial evidence on the record is p also contends that the board has failed to act in a manner that is consistent with its own precedent decisions on certain important points of law particularly regarding lawful bargaining tactics m s p is a federal contractor and that status has a federal contractor is what really distinguishes the present case from the many refusal to bargain cases that i know this court routinely sees and reviews those cases generally involves situations  has been accused of trying to avoid reaching an agreement or where the employer's trying to keep the wage rates as low as he can or to generate greater profit for operating its business as a federal contractor s p wants to get collective bargaining agreements in place and all the steps it was taking in connection with this case were lawful steps designed to put pressure on the union to reach a contract not to either avoid a contract or keep the cost of the contract down because whatever wage rates are agreed to as long as they are approved by the federal government a s p passes them through the challenge for a s p is trying to keep those rates at once it'll be approved because if they're not approved is contractually obligated to pay the rates even if it doesn't get approval from the government to reimburse rates accounts i understand all of that but my understanding of the record is that that point was really not suggesting they should have done otherwise one way or the other but you had some information with regard to renewal of the contract you certainly didn't make the union aware of it so the point you're making now is really not in play you were not saying look here's a posture in as a federal contractor and there was some urgency because of that quite the contrary well i would disagree that they didn't i was not involved in negotiations and this may not i'm not blaming anybody i'm just  prefer i would disagree with that with two characterizations number one they absolutely made it clear throughout the negotiation process according to the record that there were these dates there in coming up and they needed to have contracts in place by those dates because if a date runs by like here we had a day to december st where a contract was going into place and the pope and the the federal protective service needs ten days in advance of that date right to  get the contract because if you miss the date and you get in to enter into a contract a week two weeks one month two months after it you're fine you've got your contract you know him personally so the end of that year i totally understand that but i must say it was certainly not a highlighted point and if it all of this was so important why did they hide the information about about the renewal when it happened oh it two things i think you'd find that their communications did consistently keep telling  know look these dates are coming out and we are going to go down if we don't know what you're talking about and we may be reading the record a little bit differently but still why hide the information if this is also terribly important why did they hide that information i think the only information that they why i don't want you to go down that path i'm not accusing you in saying whether you were obliged to not obliged i when i did lotsa labor negotiations i'm not suggestion you were obliged as a matter of law but it is curious that you would make your opening argument when you're sitting on a record in which your client did not reveal information about the point you start out with that is the posture of the relationship between your client and the federal government it was hidden it was hidden i'm not saying someone intentionally meant it was hidden i don't dispute that they did not proactively disclose right this information all right so i don't know what often point just isn't weighty to me then given that given that point and then i'll tell you the other thing just so you understand you've got to understand this is a case in which the board is owed great deference so you've got that one problem that i look at the other problem is when you you're wondering whether or not an impasse is reached late in the ballgame at a point you're not saying we're getting really to close the employer changed the offer that was on the table but my point is they don't have a legal obligation totally agree and it is an extremely important they don't have that legal obligation it was what they determined and right right or wrong they determined that they believed they could better get an agreement by not disclosing to the union that there was another six months or four months after the december st date totally to you know as i totally get in the problem is i don't understand you're starting your opening argument you put it right in that you put it right in that category but in an event i hear we're going to pass each other now you've got your opening argument raise something that caused me to think about what had been withheld so you opening argument made no sense to me the other thing is late in the ballgame as you're getting to a point  there's a distinction between the manner in which a proposal is implemented and the more preliminary question of whether an impasse has existed at the time of this offer being implemented so i think we've the our burden of proof with respect to the fact that there was an actual impasse mean the union made a series of wage proposals that always went in ended at a proposal that was you know fifty eight percent above it over will still negotiating and then the employers switch to bargain or proposed bargain very late in the game but the parties have definitely reached an impasse on the the evidence in the record that on wages that they weren't going the union was not going to truck down unless the party company agreed to mediate and it had no legal obligation to mediate that's i don't think there's any dispute about it as a matter of law but no there's no legal that's absolutely true but what we're trying to figure out is what were the parties thinking as they were doing all of these things the union was not suggesting we're done if they are saying we'd like to have a rd party come in and assist us in these negotiations the company doesn't appear to be saying it's done in very late in the ball game they're coming in and saying oh incidentally you know what we have been proposing is change we want to take some things off the table that would be for me clear evidence there is no impasse because now the union has to think about that but i would respect that they will i would respectfully disagree with the idea that the union was saying that they had flexibility and room to move the only way they were going to move was if they if we agreed to mediate and since there was no legal obligation to mediate they weren't going to move they characterized it as a stalemate they characterize it as an impasse and i realize that doesn't necessarily mean that they legally are saying it is that they have the knowledge of it but it certainly shows how they thought and what they believe they were not going to make any additional money while you're not here you're not here your answers but you're avoiding the question that i'm raising i don't know how you can say the employer thought he was at impasse the employer came in with a new bargain well  happened i hear what you're saying the a s p obviously the the template that they used to give the union the final offer was wrong and they they have said so there's no issue about that but it is not the case that s p went up to the union say hey listen we planned to roll back all the things we've already agreed to and we want to have a whole new set of things they simply made a mistake in the manner in which it was being put forward they never stated that they intended to roll it back the union never raised any concerns contemporaneously about the alleged omissions of these noneconomic items union said specifically we're upset that you haven't agreed to our proposal on wages there's no substantial evidence that they actually changed the terms and didn't put into effect the non economic items the board's decision doesn't spend a whole lot of substantial time discussing that issue because it has to do more with how you implement i boards as i'm reading the board's assertion they're simply looking to try and understand the party's positions at the moment the employers said you alright impasse one of the facts they point to is the employer came in st of all i want that many sessions they say celebrating but let me focus on what i think are some tough facts for you so one is judge of words talked about the deadlines as i read the record it's actually a little bit worse for you to the extent that at one point your client seem to affirmatively miss state to the union the situation about the deadlines by saying that the government was required would require wages to go down to prevailing level as of december  unless you had a new collective bargaining agreement in place and that's false in two respects one this wasn't coming from the government to in any event they had the extension at least through march why isn't that at least a pretty significant fact tending to show some degree of bad faith two reasons i mean i want to i think it's an in our full statement to say f p s has reiterated the need for because i think it's accurate yes he reiterated it was really the company that was reiterating it but the real point is that if you're right that that statement was factually incorrect that is no different than what happens routinely in the bargaining process if you get a company says look we're we're not willing to include a signing bonus to ensure ratification of this agreement and then the culture company ultimately it does agree to that sony is the stick they may have made the statement they weren't willing to it's a time when they were backwards and it's not true similarly a company could say we are offering you better wages than what our competitors pay and if you say that at the bargaining table it may be wrong but the union has the obligation to to to to go that that's a strong statement to stand i understand the general point if you say this is my blast best offer and it turns out guess what it really wasn't but when you say he here is a constraint imposed on us by the government and it really wasn't imposed by the government seems a little bit different we're talking out of we're talking about a process rule here where there's an obligation of good faith and you don't have to reach a result but you do have to you do have to be fair to the other side in the process well remember that the constraint that you're talking about is really the contract starting december st and the opportunity that a s b had to pay for a few more months at the higher rates but even if in february were january before that extension expired we had agreed to a contract with the union for particular rates as soon as it got to be march th everything was dropping to ease determination period i so i don't i don't know who is really that inaccurate it just was in artful but i really do believe that but thank you i will stop right now and how about another idea that runs through the concept of good faith is you don't necessarily have to take a particular position but you have to you have to have reasons for the positions that you take and you have to communicate those to the other side mediation eat you're not legally obligated to mediate but you never even responded to four approaches on that score and with regard to the off the the core economic bargaining it seems like the union had some decent rationales for their positions they said we haven't gotten a raise for a long time in the past and we're just asking for what people in other buildings are getting and there's really not much evidence that the company had a reason response to those points i think the the comparison is when you say that the union had made these requests there was a if you were a company and you have a contract with the union and made contract union comes  we want to pay you a dollar more we want you to pay us a dollar more and the company ignores me now a good company should say you know we don't have an obligation to them so we're ready not going to but the company instead just ignores it's not an unfair labor practice for the for the company not to respond to everything that we're talking about here are they all are i don't dispute these are hard bargaining tactics but they're lawful they really are lawful under the hypothetical you just gave was middle  you're in the middle of a contract that's a hypothetical you're using not the bargaining for a new contract that's entirely different well i thought about what their employer was in the middle of contract with and there and there's no bargaining to get a new agreement  time has arrived of course an employer would told the union to go fly a kite if they came in and said oh you know it would be nice to have a raise even though the contract doesn't that's not a good example well the point i'm trying to make is is that you can't ignore  can ignore when you don't have a legal obligation to respond you can show you do when you are in the middle when you're in the middle of collective bargaining that's different as opposed to being in the middle of a contract where there is no duty to bargain you a bargaining for a new contract you have legal obligations is completely different from when there is no legal obligation to bargain i don't think there's any court precedent that it asserts that were president instead says that it's a permissive subject of bargaining not a mandatory s mandatory what we're looking for here is if you look at the board cases and it's why we give them deference of boys trying to find out on the record whether there's information indicating the bowl saw ads were at at an end and what the board did here was say taking the evidence as a whole we can't reach that conclusion but they had reached an end and there was still more to be done and where to my colleague and i have been posing questions that cause us to wonder whether the board's right or wrong on that legal inquiry given certain circumstances here given you withheld information given their warrant very many  sessions given that you've changed the bargain i mean those are all thing the board looks at and says no we were not prepared to conclude that the more bargaining wasn't necessary before someone could say we're done with done all we can do and that's it and at that point the employer can say we're done the board said not yet my point and i think this is the last thing i'll say is that there was unquestionably an impasse on the wages there was no break it was going to happen until the company agreed to mediation which it didn't have an obligation to do and what the company was trying to do as every player tries to do in these cases when it wants to get a contract is the company tried to break that impasse and the steps that it took to break that  me ended it when i read this record that could not be an impasse if you make a late change in the bargain the other side now has reason to believe there's more to talk about there isn't any question if you've done it as much as i did it that is a clear signal to the other side i'm coming in with a change proposal that means there are more things to talk about you're not close to an impasse at that point now you characterize it as a mistake in this in that i found that very amusing given my experience not a mistake it's evidence of no impasse and that's what the board was looking at the change that you change the proposed deal and you tried to brush it off and you were trying not to smile it's a horrible mistake if you're trying to argue  impasse you cannot say you're at impasse if you're coming in that late in the game hiding information with respect to what's going on with the feds whether you have to tell them or not and you change proposal you not i were any of those i thought all of the changes made the offer more favorable to the employer did no i think it was it was a variety of different company proposal which is to me if that's what it was then to me it would be not a sign that the impasse might be thawing but that you're you're clearly at impasse and you're starting to play hardball on defense and that the board deserves special deference and determining whether a party has carried its burden of proving that offense here ample evidence in the record supports the boards that terminations at the company simply fail to carry it were asking at the end and that is this last offer by the company to go back to the even lower wages why wouldn't that cause the union to say if we wanted him passed before we sure as heck are now your honor i think that the court case law is that when a company party makes a last minute dramatic change in its bargaining proposals that the bargaining process requires more time for the parties to fully explore whether there is a path to an agreement and the company here at the th hour replaced its previously proposed increases to wage and benefits with wage and benefit cuts but then on top of that it introduced a raft of brand new non economic proposals into the negotiations at the th hour all read all of which were better for the company i'm not or frankly i'm not positive about that you're out of i know there are there are a number of not economic proposals you know european tour down time paid breaks temporary employees full time employee says a number of others i know that some of them were worse for the union i'm frankly not sure but but the point i think you're out here is even if it were all worse for the employees and better for the company that that would only underscore the need for further bargaining because you know i mean i think they were seeing it just understand the three of you hearing slightly expressions slightly different instincts my instinct as someone who used to do this is if you came in with everything now being reduced i would see a possibility of maybe i can get the wages up now because they are suggesting if i agree to take away some of those non economic things which they've now proposed to take away i have i may have a way now to get the wages up that's why it's inconceivable to me that there is an impasse so i don't see everything bad as being evidence that it must be in as i see it i'm not sure what the board said about this but i would edwards i agree with that perspective i mean the company injects these noneconomic i'm not an economic proposals into the negotiations at the last minute and then they proceed to you know lateral implementation without any meeting with the union that's absolutely right you're out of your example there's one point in the court decision where the judge says that if anything the piling on of a host of not have a not economic topics on to get into the negotiations at the last minute presenting the party or the brand new platter of options but you know when i had got so the union with these new these brand new proposals presented to it if the party the parties then it was necessary to exhaust the collective bargaining process for the parties to explore avenues of the green on those proposals because there had been no discussion of them and they could have made avenues to agreement amongst the next night economic proposals themselves and they also could have discussed tradeoff between the non economic proposals and the economic proposals and i would add you know for example there are many psyches in our brief that say that this is a commonplace very common method of compromise  words in this area but a somewhat different instinct so let's assume just to simplify this that they're bergen ing over three different issues and they're sort of the employer is roughly twenty six dollars on wages six dollars on health contribution and an hour a day on break time and then at the last minute they come in with a dramatically new offer which says twenty dollars on wages four dollars song health and ten minutes on break time you think that's that could tend to break an impasse because the union will say oh this signals flexibility because maybe we can trade x for wire you think they're more likely to say this is this is crazy this is much worse they're there they're moving backwards so if we weren't on before we must be done that your honor if i could i try to make a conceded that if there had been an impasse in september which it had contended that the company expressly can see it as you point out in our brief to the court that if there was an impasse in september that that impasse was broken well well in advance of the events of november but on top of that i would also respond that yes i think that again because the case law in cases like hermann brothers sentinel hospital yes break part court cases that we said in our brief issue here is consistent but there is precedence that when a party is suddenly introducing new proposals that are that had not previously been raised and or that are inconsistent with a radical divergence from its prior party and positions at the last minute that the further bargaining is required between the parties to see if those changed proposals allow the parties an avenue to reach an agreement and they need to fully exhaust all avenues and i think it's important here in your hypothetical i know that you judge katz had spoke about you know kind of a change in economic issues but i do think it's really important here that the change at the last minute was both on the economic issues and on a raft of not good and not economic proposals and i need to respond to the point that mr dowd made the contention the party the company has raised that this was somehow inadvertent or a mistake there is no evidence and the record and i have to stress that the company had the evidentiary purdon in this case to prove it when mr cropper  testified he went through point by point and he pointed out all the changes well i don't know about all the changes he put out several changes in the non economic proposals between the the final offer that was ultimately implemented and the companies earlier tentative agreements on those very same not economic topics then it's the company's turn to put on its evidence and it put on zero evidence as to why it suddenly introduced these brand new non economic proposals into the negotiations at the th hour so there is no support for the notion that this was a mistake or inadvertent and it's also simply incorrect to suggest as the company has dollars the company stipulated before the board that it implemented all of the terms of its offer which included both the economic and the not economic and that those terms then went into effect on december one two thousand and seventeen i don't have much time left drivers but if i could quickly address just two more points the company here did more then just fail to share with the union certain information that it had it made repeated affirmative misrepresentations to the union during the only imposed by the f p s when the record shows that that was untrue and when the company knew that that was not true and then on top of that it specifically tied the last three alleged deadlines that it asserted the actor thirty one deadline knew that the f p s had already committed to continuing the status quo reimbursements through march three thousand one hundred and twenty eight team and the other point i'd like to make if i can very briefly just in connection with the discussion we're having about the last minute introduction or proposals i think it's also important to remember that prior to november th the company had repeatedly claims other supposedly final offers and other supposedly hard deadlines and the parties of course continued to bargain and exchange proposals even after those supposedly final offers and that lines had come and gone so the union had no reason to understand that the company's latest claim of an event or seventeen final offer was any different than those prior claims your honour's i'm over my time but i would welcome the opportunity to answer any additional questions that the court may have i have a question about the remedy part of the remedy that orders the company i don't have it in front of me i think i may have i think i may have confused this in a library case with when i'm here tomorrow i thought with all the question i started to say that but i wasn't sure minutes thank you very much and i'll try to take less than that i think that the point that the dickson was making about represent misrepresentations is that within our brief and i don't think i need to reiterate that point the one thing that i do want to focus on is that the court obviously has issues about what it perceives to be changes in proposals and the like that were done in it and what the court has talked about being poorly timed but i  court to look at the cases that we've cited to page thirty two dollars of our brief which talks about existing national labor relations board decisions on law and precedent the say that d there are three exceptions to the rule that there must be an impasse before an employer may implement his last best and final offer want to reiterate that these are by law three exceptions where you don't have to have an overall and this one is when the unit gauges and conduct  calculated to frost frustrate agreement or to frustrate impasse that occurred here because the union insisted on mediation as a as a way of moving forward and the company doesn't have an obligation to do it so that was an action by the union of prostrated agreement union that cannot insist on that as a condition of continued bargaining it insisted only if they just propose they said it would we really think that would be a good thing to have they did not say we will not negotiate unless you agree to wages by the company having to agree to mediation but more importantly is the nd point says when a clerk can demonstrate that an impasse on d one critical issue precluded agreement then it was ok to go forward and and  to break that impasse through implementation of less than zero so i think that is the key finding here i mean you do have those three exceptions and the only one that that might work is the nd one that you're talking about the problem you the you open to put everything back on the table again and that's exactly what the board said and the case law supports that you have no exception around that the case law supports it and the board made an adverse finding against you on that ok i understand your position on that judges ok thank you so i mean that's thank you very much ok wait judge kaz's has a question just back to back to that last best offer i want i want to make sure i understand your characterization of it do you think it is a new and different offer which just opens up new issues or do you think it's better characterized as i'll just call it for short hampshire really retrogressive just takes what was offered before and makes all the