right to work states the key issue before this point is not whether the board was free to ruling on it or whether the board makes flip flop its position on bethlehem steel generally the question is whether the board has appropriately me implemented the best the habs deal exception in the back of a right to work state and the answer is no and i will focus my argument today on three point one the th circuit  rd the rule is contrary to the principles of the act as recognized by nearly seven years of or so starting with the th circuit's previous ruling which i will refer to as the  has been connected with the question of whether jews checked off is an exception to the doctrine against unilateral changes in the right to abort states no other circuit has ruled on this issue now over the years the th circuit squarely presented this question to the board three times what is the board's russia now for excluding jews check off from the unilateral change doctrine in the absence of reasoning as arbitrary the penalty did leave a door open it said the florida could adopt a different rule that was one rational and two consistent with the act but that's not later the general counsel issued a complaint stating that the board could stating that nuclear in a right to work state could not unilaterally so at most in right to work states airlines seven years of trust in a publishing and other which your site and briefs but let's assume in our new endo that employer would not still a benefit upon a union without a collective bargaining agreement the contract and will instill in consistent with bethlehem in a union made agree that all of the employees in the represented union have to be members of the union and they can't agree if in the least among private employers that they must even pay some amount dupes maybe not the full amount but some amount of dues and so they are in fact forced to pay some amount to do in order to remain members of the union and in order to remain employed by their employer now in right to work state coercion is simply asked there is no forcing of any employee to join a union any any more he can't work within the bargaining unit and can decide on their own whether or not to join a union and whether or not they want to get jews in nevada at valley hospital in this case every single employee who authorized a dues check authorization did so completely voluntarily because it was their choice and their right to support the union was there no union pressure to do that i certainly the union encourages everyone in the union in the unit to join  that is a matter and that is outside of the statutory law now and the reason that union security is is considered to expire with the contract is because the statutory law actually says that  that are clearly recognized because the statute must expire at the very time that the clinton bargaining expires they automatically expire now the board is trying to create this rd category rights and union secure oh there are those the five you're talking about yes you're on and you're representing to us that all four of those five are statutory rights well yes i am what i am saying overview it's well established and the board obviously agrees with the proposition that nearly all mandatory subject of bargaining and bodied and a collective bargaining agreement between an employer and a union that has expired are subject to the cas unilateral change doctrine which prevents an employer from unilaterally changing those expired terms ending bargaining with the union however it's also very well established that there is a limited number of well defined exceptions to this doctrine which have been accepted for most of the last sixty years including two struck off provisions that for most of the last sixty years the board as hell are not subject to the caps unilateral change doctor in this case as the board made clear in its decision it provided a full explanation for the st time why do you check off is similar to these other limited number of exceptions and is an exception even in the right to work context and as the board explained that because these limited number of terms of employment are uniquely or exclusively created by contract s and as the board noted that's because you cannot have a do nd operation prior to a contractual agreement between the employer and the union so let's work that's where i'm i'm stuck because it seems to me that there are quite a few others that are created by contract a contract such as time off or union reps in the emerging gypsum of the situation union hiring halls in the southwest security equipment union  representation their representatives access to the lawyers property in front of your seniority for union reps contributions a union trust fund how did the board distinguish how did the board grapple with those cases in distinguish them well your honor the board did not specifically distinguish those cases in this decision but i think there's there's i guess the specifics and in general response to your question the st is that board is saying here means something is excluded as the dissent erroneous lee alleged the general response i think is that the board did not need to distinguish those cases here because this case was not about the board adopting a new accordance with board president dating back nearly sixty years and as a corollary to that whether the prior board had erred in a swinging lutheran decision and upsetting the status quo and overruling bethlehem's feel so because the only question the board was answering here is how to handle do check off provisions not restraining what caste means or what the unilateral change doctrine means the agency position is that the board does not need to re evaluate every subject under the sun and provide the explanations for why all of those subjects are well accepted as being covered by the cast doctrine as they have been for sufficient well if i could follow up your honor which requirements in particular just understanding question well state farm talks about a hard look review and seems to come down very heavily on rationality i think yes well i think yes our position is that that is met here because for example this is not a case where the board there was a decision coming out the other way on this exact same issue for example if the board had a decision or it found a violation under similar circumstances and it failed to distinguish that i think the board's view is that it did not need to you know reassess or  explain itself with all of these other subjects because those subjects were simply not at issue in this case the only issue in the board's view was whether to strike off should again be one of the accepted exceptions to the cast doctrine which i emphasize again it has been for most of the last sixty years that is generally the subtle expectations of parties operating under the national labor relations  act you seem to be saying that they could it was ok that is basically go back to the way it was eight years ago or whatever number of years it is and i guess the thing i'm having a hard time with is that is the rationale under which is that it's done conflicts with not everything under the sun as you said but five decisions or five subjects in the meantime or how is it that the board gets to just not explain that well i think with the with the board of saying here your honor is that there is this accepted limited number of exceptions and by providing this rooted in contract contract creation rationale what the board was doing was explaining why those exceptions in particular share a commonality the board was not studying a binary test for determining whether a subject is an exception or not because as your honor and as the unions point out there are other terms of employment which in a certain sense are created by contract which the board does not dispute and it's well established are covered by the unilateral change doctrine what the board is doing here is just pointing out that acknowledging that it in i prior decision had failed to fully explain its rationale for excluding dues jack o for example in the bethlehem steel case as the board concedes there was multiple premises to that decision one of which was the fact that these top provisions and non right to work states could be to implement security but there was also a contractual element that the board even then was relying on however the board simply had not fully explained that which is why when the issue was raised for the st time in the house the end of one case in two thousand the board now concede the board did not explain in that case what it's  was and that's why on appeal to this court multiple times the court held that the board had failed to explain itself contrary to the union's arguments we would dispute the notion that a house and a three this court due to the unusual posture of the case where the allegation had been pending for fifteen years at that point that the court did not see fit to remand again to the board and so in the context of that case in particular the a policy matter is itself irrational and as a result of the fact that the board that's now responded to the court and attempted to provide this reasoning is not foreclosed by not  we don't respond to ms weber's point that she relies on the theory that all of these other exceptions are statutory yes your honor as the board points out in his decision in this case decision and so the order has rejected that understanding of what these exceptions share in common and has instead it adopted or found in and president dating back decades that what they share in common is in fact instead just contract creation dynamics so the union has cited no coroner certainly no supreme court precedent mandating this waiver of statutory rights understanding of what the well your honor st i would just clarify we certainly did not intend to add a response to that in the briefing that was not on the board's decision and i think the answer to the question is st of all the board found that do check off doctrine and in the board's view it did not need to distinguish these cases in a decision here and i think that's really the only answer i can give to the court because there is no further distinction beyond board's actual decision however for the reasons previously discussed i think the agency's position is that that was sufficient in this case because ultimately the question is simply whether the bourse conclusion here is rational in two thousand and fifteen and so again i was a primary motivating consideration for the board here was it was faced with reassessing whether lincoln lutheran was correctly decided and for subject to the caste doctrine or is an exception the board found that it is an exception as has been the case for for decades because it shares in common with these other exceptions that in the board's view and its experts judgement is uniquely routing contract with confidingly some of these other subjects are not in so far as it's accepted that they're covered by the cas doctor i take it one of the the baseline argument you're making is prime well your honor we're not we're not suggesting that that alone would be sufficient so for example in the house in the cases this court did clearly hold that simply the passage of time is not sufficient to render a rule rational or  justified i think the exceeded station there if the court looks back at the board's decision in the house indicated this was that starting with the end of one the board simply said this has been a rule and did not provide an explanation and that is why the court found that's not sufficient and you cannot just say that that's been the case and we're not going explain it and i think the distinction is the of the board clearly made an advert and are in our view rationally explain to for the  generally that is case and it's already addressed as a violation in a right to work state and the issue here as the board has admitted today that this is the very st time that the board has attempted to explain in bethlehem steel applies to right to work states so there is nothing to return to this is new and to explain this new rationale the board didn't need to extinguish the long history of features of contract that cannot unilaterally changed or to not simply ignore its own relevant precedent it has to explain why it is not controlled and similarly the board has not explained why do is check up in the right to work state bargaining agreement save minimum wage and anti discrimination so that is the exception doesn't swallow the entire doctrine and again the board had no answer to that argument in its response the board