it's incorporated versus the national labor relations board and just take time to get yourself settled and let me know when you're ready and but i have no choice but to do that on behalf of my client i would respectfully disagree with judge hamilton i think lundy is directly on point i think the words used by judge wilkinson in l clear and they basically say that when the panel uses the words enforcement denied with no qualifications and no exceptions it means enforce denied you look at that that  of understand you don't look to the facts of the case to understand the language in the mandate and the mandate in that instance the answer in the fourth circuit your honor is no because the way the national labor relations act is framed in the way the statutory scheme works the supreme court he will picture made it clear that it's not the same as in the exxon case cited by the board the administrative proceeding and the judicial proceeding are merged into one the clear about what they're saying as they were no there but can't be what their own that's based in the context of what they were addressing isn't it well your honor i think we'll be right smack in front of the panel when it comes in a case where they had in fact been a normal mirrors determination in a case versus one where there is no mere determination no sir because i think the court yes perhaps are or were in one day where there board there's a specific language in the eagle picture from the supreme court saying these particular decisions under the m l r they cannot be parsed that way no and that's why that can't be if you have the in them as to what is made and the board can't revisit it once it's made and we have decided a court has decided on that determination that really clear from the monday which you say that it's not that clear your honor i don't think it's that clear but i think even if it was that answers the question by saying you can't split the decision of the court that enforcement denied means enforcement are not yes or your honor let me remind you that in our prior panel opinion because of the and was improperly to yes or yes there i was down the course position and my only response to it is your honor that in light of lundy in light of your decision in london where you said for example quote well the board contends that our decision constituted some form of remained i e enforcement denied no where in our opinion we did we so indicate in light of lundy your honor when you had twice before you in our case twice not  opposed to enterprise a request for re manned twice the board of a price twice the court decided not to remain on the case once in the underlying case in our face as opposed to enterprise the board did ask for  underlying case it then asked for in rehearing in both cases your honor the lundy decision was right in front of the court the whole point about enforcement but not as interpreted by judge wilkinson was right in front of the court when the when the n l r b asked you twice to re man that and twice you said no and so for example judge hamilton when you made the comment in the last argument about why the enterprise didn't challenge your underlying decision i suspect the reason they didn't is the same reason we didn't because you said in force and died you know where gave any indication that this case was to go back to the board and the law and this circuit law your lundy case says if that's the case then the over that and decide whether what to do about those facts before it could reach the constitutional issue that's why the court did that but i would say to your honor i'm not trying to murder excuse me judge hamilton well i'm just towsley i'm not going to repeat my dissertation on what lond that the words and forstmann denied are literal they don't require construction they don't require interpretation and i would also say the one difference here is in our case that is in the end in one even ingles case the board a difference because like any other decision it constitutes the law of the case the issue was presented it was briefed and it was decided and it may not be the law of the case on a petition for rehearing although i would suggest that in this case because it was one discrete issue one brief one procedural issue that carries more weight than maybe the ordinary petition for rehearing but it was raised in the original case and decided in the original case with no remains so that's what we would c that's why i would say that's the one difference between the two cases but again your honor i think if you go back to eagle picture it tells you that you have to look at one consolidated decision or do you think the our court did when it that we just said that the board is unconstitutionally constituted and therefore why they they can't redo what they've already tried to do improperly how do you take them i know you're hanging on those words but it just doesn't seem to make in the context of what happened the board looked at the the court looked at the facts a challenges there that there was a discussion about that the court said basically i'm to summarize those facts are right but i got to tell you the board you can then there's some constitutional what you do we want to make that clear then under your reading of i would be getting ahead in the next part of the argument but the answer is that that is going to be quite candidly yes in that if you decide the board has jurisdiction to read decide this case then i think arc mark klein has a right to re to anybody that i read i'm just saying you're not bound by that old opinion to stick with it i think you can make an entirely different opinion on the merits if you get that far and we would urge that you do that well as i mentioned earlier we vacated the court in the text said that it anticipated that the board would go back and read decide the case in light of its principles it made that clear that that was the up to the board that's different than what happened here in white civil yes white still says what it says i would say that the board's subjective or the i'm sorry that the court subjective view of its mandate is contrary to the supreme court case cited by enterprise it was a subjective not objective view but the other part about it that we say is your honor i can't deny that the white that the eighth circuit did what it did it didn't cite lundy it didn't cite eagle picture it barely cited the statute and it contrary to a decision of your feelings own this if we go if we were to go back and look at what we did and say looking at it objectively this is what we this is how we read it the board does have authority do that if you say enforcement did not really didn't mean enforcement denied it meant something else no we wouldn't say that but that is that would be the effect of what you know he said i don't know i didn't ask how you would read it i said what we would say there's two different things and we could easily say look you know that mandate looking at it objectively in light of the facts of the case it's clear that that would apply the proper standard you might not like the way we apply the standard but that would be from the situation we have here for the same reason which is that in all of those cases there was a real finale concern to the board being able to go back and more into an order that it had already gotten and forced or to have a second crack in an order that it had been denied because of the merits and what we have here is a case where that did not take and so to the extent that it has language about the board not entitled to having its order split some force some of it not enforced decision right that is correct what the teaching of the case is on how a mandate is read is that it is read in conjunction with the entirety of the judgment and the opinion in contain opinion are the facts and so yes when read reasonably and equitably which thank you your honor this is my next point that is what the enforcement denied in the context of this case meant and so in terms of what would happen if it did not if the mandate was to say that there was nobody of the board to go back and decide the case in new these these would be the only cases then where by the parties would not be entitled to a decision in the first instance by a valid lee constituted board and so that is why when when read in context of not just the opinion but the facts as well as what other courts around the country have done in the equities the reading of of this mandate is that the board was able to go back and decide the case and knew  the next point that i would make with regard to the remained and requesting remained and lundy in this case the board for the purpose of the unfair labor practice did not ask if we lose on the recess appointment issue we should get the case re mandate that was done because the board feels that since whitesell after new process it request for the equitable remedy of a remain and is not required when we are in this context of a board being told that it was improperly constituted and that does not preclude what happened here which is the court deciding that it did wish the board to decide the case and new and that is because there was no valid case on the merits and so that is why we think that under the read of the mandate under the teachings of whitesell and under the teachings of what has happened since nor canning a new process around the country that the board was correct in deciding the case in new incorporating the facts of its all decision into this decision and giving the parties including my opponent what they deserve which is a valid board decision on the you please the court my name is robert englehart i was going to talk about the merits of the case but the customary role for the board is to talk about the merits after the respondent has a chance to raise its concerns about the merits  court that the huntington ingles challenge to those facts is now or more narrow this time than it was before the court before they've given up a challenge to the board's technical employee t r w carline of cases they read this court's earlier decision on page thirty seven of their brief they do not ask this court to go back and redo or reverse that they're living with that instead they're mounting a whole separate challenge that the board specialty health care decision was wrong we pointed out that they didn't raise that in a timely way in the board's procedures we pointed out that they didn't even preserve that in their brief just alluding to it and as a practical matter where would this challenge even get them it would get them to the law before specialty health care was written and when that law was the case as it was in this case in front of the regional director they did not ask for the regular community of interest standard to be applied to this determination they asked for t r w car line of cases which the board did and which they've now given up on that is their best standard for trying to say this unit was bad your honor let me turn briefly to the merits we're not living with the decision that the panel made on the merits as i indicated earlier if this court allows the board a redo then we suggest to the court that it is in time that there is a redo of the entire thing including the merits one two and the reason we suggest that not only can the court do something different but it ought to do something different than the old panel did is because with all due respect the old panel decided this case or reviewing it under the t r w standard that we submitted then and submit now is not the standard the board uses to decide bargaining unit questions it uses specialty healthcare we submitted a case in a twenty eight j letter just a couple of weeks ago again confirming that where the board made this statement the board's decision in specialty sets forth the principles that apply in cases like this one in which a party contends that the smallest appropriate bargaining unit must include employees or job classifications not request that in the petition for unit that is exactly our case the board filed for the petition i mean the union filed a petition for a certain group of employees the employers thought to add to them specialty is the standard it is not t r w we're not asking the court to go back to t r w because specialty then and of course the cases we've cited since then including d p i now have proven that specialty is the law according to the board not t r w it's not a matter of saying well one alternative is worth it or another deciding a case based on overruled law is not an appropriate way to deal here if the labor board applies specialty and this board review specialty in light of lundy it will find that specialty is a change number one number two conflicts with lundy and won't pass muster in this circuit at that point is up to the court to remand it to the board to say that standard that you put out here doesn't cut it you know in our circuit that's exactly the case that we have now to go back and say as as mr engelhard did that we have punted on t r w yes we have because the board has punted t r w the board we could submitted earlier had done it they clearly have done it now specialty we submit to you and we briefed it was a change in the law it was a change that they provided without explanation according that was required by virginia folding box and it's a change that violates the law in this circuit anyway and we think the statute but this circuit as according to lundy packing once again overwhelming community of interest standard was found in lundie packing not to be consistent with section nine c five of the act that says where this case should come out if the port gets that far and we submit that the panel should if it allows the did was that it decided it specialities this decision two years after the record in our case was closed so frankly for the board to come tell me i've waived the right as the ambush sheet to challenge the ambush your is ironic indeed that it passes muster under t r w our argument is and the court then reviewed it on t r w deciding not to look at it under specialty we said your honor that that t r w case is no longer good law according to the board so it's no longer of them appropriate thing for this panel to do to review a decision made under t r w we're not suggesting that t r w will be the lower the board's law if you send it back to them they have to decide what their law is they've decided it's specialty we contend that doesn't cut it in this circuit we suggest that if you review it you will conclude the same thing pursuant to lundy packing and not imply not institute your own standards but say to the board the ones you've instituted are no no good in this circuit tell us what else you want to do it may be t r w it may be something else i can't prove it but what i do know is specialty is the standard there reply i've i'm going to stop you at this point because we did get out of your own the on the merits which is what i think you want to do anyway i appreciate the opportunity your honor the d p i sec you print a case that they submitted if anything the citation to northrop grumman grumman which is the name of this case before it was founded in angles reaffirms of the fact that the board continues to acknowledge that the t r w car line of cases is alive they have gotten an application of that line of cases that is the hardest standard to meet to make a unit smaller than all technical employees they asked for that application before the board they got it there it's unforeseeable to me your honor how they could possibly win under any other standard this attack on specialty is asking this court for an advisory opinion in all due respect if specialty is taken off the map we return to the state of the law to a community of interest standard which was much more difficult much easier to find a smaller unit of technical employees than all technical employees in then t r w car that's why they argued t r w car they had a choice then they could have argued regular community of interest now they're complaining specialties come along which made it even easier well maybe it has your honor but it hasn't been applied to them in a way that gives them the hardest test to find a smaller unit the r w car and the board still found the smaller unit appropriate and there's no reason to disturb that even if the board in the future were to leave t car behind they got the benefit of the best test at the time they litigated before the board and your honor i submit the best test now for their position thank you for your i'm very much let me give you a minute robertson thank you very much thank you donna your honor all i can tell you is i've done this for forty years i know what the standards are this board applies specialty is new it's different it is the standard they are applying across the board in every instance they are not applying t r w what they are telling you is a fiction they didn't want you to review specialty because you already had lundy on the books they conflict so they decided it alternatively under a standard that they have overruled and had they have discarded and for you to once again fall into that trap is putting yourself in a position of not really analyzing the case and reviewing the case that they decided