morning your honour's here please the court my name is tony running the issue before the court this morning is whether the board's decision is contrary to the court's controlling precedent and therefore must be set aside the board's position is predicated upon its view that train months failure to provide notice and refusal to provide a refusal to bargain the effects of a matter within a contract requires a clear and convincing excuse me a clear and unmistakable waiver the court's precedent in contrast consistently rejects that view considering the contents of a collective bargaining agreement is the question of contract review before that being said before the court in this case there is no dispute that the board is found and the board is since conceded was not a subject of bargaining presumably because that was already included within the initial terms and conditions of employment so consistent with this court's decision in and no medical center it would be rather unusual to interpret a contract as granting an employer the unilateral right to make a particular decision but as to reserving the union's rights to bargain over the effects of that decision in this healthcare similar case of burn successor where the employer distributed employee handbook that their hymn book provision did constitute terms and conditions of employment all got not and i understand i was i understand where you're going with respect to the way in which of the handbook itself the handbook itself is addressed to not only the bargaining unit but it also addressed certain of other non bargaining unit employees and the concern from that standpoint was to avoid altering the at will employment relationship that govern those particular individuals so that was the distinction in this particular case but the hymn book itself was conveyed or communicated to the union that it was the initial terms and conditions of employment therefore constituting thought with respect to layoff yeah specifically that if the employer reserves the right to lay off like in this case right is there any case that says that implies the employer is also  retain the right to unilaterally resolve the question of severance pay and other terms of lives yeah i think that's that's consistent with this court's maybe not with respect to the left question itself but it's consistent with this court's precedent for twenty five plus years that if the contract specifically addresses a mandatory i was asking you whether there's a case in the context of layoffs that's all i want you to  headache i can't cite one specifically with respect to layoff again it being a mandatory subject of bargaining in this court has recognized the fact that again when there is a mandatory subject of bargaining and it's addressed by the contract terms that under that employers basis for their arguments in this particular case is based upon the contract covered spurgeon soldiers covered so this is one right on like yeah so if you were responding to a contract whether there was layoff language and in place and then with respect to that the duty to provide notice and the duty to bargain the effects i kind of maybe got lost in the shuffle your honor so it is or any case involving it's agreement between an individual ploy which is what this is right well i don't know all that i'd necessarily characterize it as that i understand are going with respect to that specific question again this isn't from that perspective but it's a novel issue before the court to some extent be trim i certainly cites case law that indicates a contract coverage applies in this particular case and applies to burn s sors the union cites it situations where it's a new union and there aren't any terms and conditions of employment but i guess what i'd leave the court with is if we don't hear your practice not a collectively bargain agreement in cover idea is that the union had an opportunity to bargain about the issue and if it isn't in there then we assume it chose not to and you can't apply that in a situation like this where the union had nothing to do with the handbook in seems to me you can even try it in if you see this is a contract between the employer and the police who chose to keep working they didn't get to bargain over all and true they could they could have decided not to work there but there was no collective bargaining from which you could assume that there was a decision by one of the parties to leave the issue up to the employer and then your honor right correct your honor correct but i respectfully conditions of employment whether that be vacation or health insurance benefits or whatever it was the union or that their board would have objected to that and said that the employer was bound by the terms of the initial terms and conditions that it is abolition and therefore couldn't artie's are bound by the question is about this is there's no tricky answer this because i don't know the answer right does a labor my firm relations act permit an individual employee to make a claim that the initial company's argument here was that this is a contract coverage case there is a new claim before the board that absent a contract coverage there is any error in applying current state waiver or th rejecting the contract coverage standard as it applies in this case because there is no collective bargaining agreement there is no contract and in fact the handbook itself in putting aside the collective bargaining agreement the handbook itself that is not a contract and then the board  whether an employer is great to make you know under which changes in terms and conditions during the life of a collective bargaining there's no collective bargaining agreement here everybody agrees on that right correct here and so there was nothing for the if this handbook was explicit about every a fact but both about layoffs and every a fact it was explicit laid out right there on the face of it so what would meet a clear and explicit the board's decision which applied this thing called clear and explicit waiver both clear explicit and waiver and then but never explained who was doing the waiving or who had to  that your target in the national labor relations act and here we do have to differ on liking the contract says and the board is saying that we are going to because we think it will enhance labor peace and ha coverage that's it and so if we agree let's assume we agree with you with the board that this is not a country covers case because is no contract then let's assume all three of us  the terms that were set forth in the employee handbook allows the employer to centrally avoid any obligation fait accompli or gave timely notice was essentially we did have to give tommy notice because this handbook is a contract and it's falls under contract coverage period that's not so i'm reading the motion the national argued to the board of the question of waiver normally does not come into play with respect to subjects already addressed by terms and conditions covering employment instead the proper inquiry is whether cover but if you say the proper inquiry isn't whether it's covered it doesn't resolve the question of the fact that waiver normally doesn't come into play with respect to subjects already addressed in terms of conditions it seems you still have to give a read their argument have to her reason why waiver applies they propose contract coverage but you don't give a reason you know you explain why that doesn't apply but you don't explain the reason for why we are applying your own i understand the court correct but this is not the situation and i see that my time is up if i can talk with it there are a lot of lines and i understand that there are a lot of hypotheticals that can be asked and a type of case like this if this was a case like monterrey where for example the employer said that there will be from one to three weeks of severance a depending on some particular factors and it ended up giving two weeks severance pay then there would be an issue of well this fall within the general range of what the employer to do in this is a situation where the employer did not include any effects of its layoffs it's tantamount to simply writing effects and parting out of the compliment and the union comes into play it's true the employer may not be actually changing its terms and conditions but i would suggest that an employer is part of those initial terms and conditions once the union comes into play can't claim well we're not going to bargain over the next course no bargain in the context of a collective bargaining agreement but short of the back until such an agreement is resolved we have a new set of terms conditions if they say we will because under the there's a statutory requirement to bargain over the effects of the decisions and that is a tory requirement to bargain over terms and conditions yet in the end and in that situation if an employer is setting for investigating the complaint but but it did hear you that the u s offer seizures were setting forth enough specificity and the third might have been a little bit of leeway that the employer that trayvon had with in that way off procedure but there was a very specific layoff procedure that was set forth in the handbook and it and the board's general counsel did find the tree much follow that procedure and so i have to say now you're you're are you something back if this is the board's real intention and really we really have to it here this week i was under the impression that the board agreed to things that were in the initial terms and conditions as a result of berms employer could do until there was argument it's a it's a new argument it's not one i have ever heard before but i'm a board certainly entitled to present it i'm so in privy not the core of the board says that when they had unusual terms it's that pa they said for new employees we will we can lay you off for any reason and we will not give you any benefits as a consequence sang off that's that's what the handbook those words is that not enough to allow them to do that without having to bargain over they can bargain over for another collective bargaining agreement but until there is another collective bargaining agreement can they do that because your honor once the union comes this document and that's where i think we're getting confused because of this handbook already addresses a fax that i want on site severance talks on employment compensation talks about letters of recommendation and talks about you got you not entitled to notice at will employment you have no guarantee you'll be working tomorrow all those things are in there and sound at least at some level like some affects the an address but maybe not recall and other things and so what we're trying to figure out i think is  board's decision in force in light of what trayvon actually argued to the board it is never disputed that if a waiver analysis is applied that there was the board error by finding that there was no waiver here the confusion i guess i have been listening to the board's argument here in that there sums there seems to be some sort of distinction between what the board decided in this case and what the board is arguing before this court and i want to direct your honour's attention to pages sixteen and seventeen of the the board's brief in this case says before this court there is no dispute as the board found the train mine is a burn successor that it lawfully unilaterally established the initial terms and conditions of employment and that it's the citizen to lay off the twelve unit employees was not subject to bargaining so i don't understand the distinction that's trying to be made here i think the board in its brief is basically affirming what the board's decision was in this particular case with respect to that though the language itself and there's there's been some dispute about the specificity that's necessary for the contract language to determine whether or not there's an obligation to bargain over the decision in this case i don't i don't think that there could be any clearer language with respect to the decision so from time to time management may decide to implement a reduction yeah why why why is that block part of your claim that this is pretty specific because again i think there is a distinction bit but the employee handbook was to address the clock to the employees that were party to the bargaining unit as well as the employees that were not bargaining unit employees as well and the concern with respect to that was that says we wanted to address that they out well status of the non bargaining unit employees recognizing that again we set the initial terms and conditions and the employees