court this case arose when teamsters local nine five seven filed unfair labor practice charges against mike sells potato chip company alleging that the company unilaterally implemented and unlawfully implemented its last best and final offers for two bargaining units outside the record your honor but the parties that i believe one or two additional times in april i want to say they then did not meet again and till june of two thousand and thirteen the warehouse negotiations you said you know what let's take these difficult issues of pensions and health care at least over two and will deal with that in the driver negotiations remember fifteenth was the same day that would you say that they are a fact you actually thought you the company did agree to that but at that point it brought the same pastor for rishon with the warehouse unit that it already existed for the over the road and the outsells the impasse however became even more clear when during after the november fourteenth session the union failed to provide any additional bargaining dates for some time and did not indicate any particular willingness to be open to further compromise on specific issues that's why this case is very similar to the case of truce or where the employer just as here put the union on notice that it sought to address significant financial difficulties at the very outset of negotiations negotiations in that case occurred only over a six week period and at the end of which the employer informed the union that it would implement its final offer if it had not if the last s and final offer was not accepted by the date that the current agreement expired and this court  union to vote its its offer that is true that no fine no the companies and not the company did not utter the words last best and final offer on the november fourteenth session to the extent that asked a request to go vote on the proposal was not clear as the last best and final offer well it is not it is certainly not something that can be required right around or however as untrue served it can be a fact for consideration of whether an impasse exists if the union you know refuses to even submit a final offer submitted by the company for a vote and that was a fact that this court considered introducer again in a little day this court reversed the board's finding that the parties were not at impasse at the time of unilateral implementation the parties and liberal day just as the parties here were at loggerheads specifically over benefit fund increases among other things and just as in this case neither party in laurel day but just on its benefit session of november fourteenth bring in council to sit in and that council admitted at the end of that session that the parties had not moved the ball very far he also conveniently forgot his calendar and could not set additional dates and the union at no time between the final bargaining session and the date of implementation on november nineteenth got back with the company on additional bargaining dates there was no communication of that whatsoever until november twenty sixth at which time and to open it even further in july it was the union that first made reference that it wanted to amend the agreement which it's usually the union's first move to do that in early august the company replied and suggested it was mid august and they were ready to actually meet till the very end of august and my wrong on recalling the record that way your honor that may be the case ok that may be the case i've apologized but it is it was in august and that same month the company was willing to meet the union could not meet until september and again there were several sets of negotiations the route sales negotiations they were not available to meet they said until october tenth and mike cells enter the two thousand and twelve your honors i see i need to save some good some of my time for rebuttal we'll give you a couple minutes go ahead thank you myself enter the two thousand and twelve negotiations with a for your loss of over five point five million dollars it had already been forced to shut down several distribution centers and eliminate half the came and the prior collective bargaining agreement expired that the agreement itself provided then it would actually the terms would actually continue until you had a new replacement agreement correct well if you had agreed to keep it here into this even if you had negotiated a new agreement by the time it expired we would take the position that an impasse would a backlash but but otherwise well but then the question becomes whether you wanted out of this thing you didn't want to uphold your commitment or even a day to continue the terms of the prior bargaining agreement so you had every incentive to declare an impasse of the first opportunity well we take objection to that the board of a decision without regard to the finding of any sort of artificial deadline and so we would first intend this court if it were to be what you spend a lot of time in your briefs talking about the union dragging its heels on into courage to me that there actually incentives on both major goals of of changing the commission structure but health care and pension were the biggies for the company with all three groups of employees and the company provided financial information to the union up front who took this information at face value and never questioned it never not avoid an impasse because while the union accepted the concept of net commissions this was only one of the three key issues where major concession issues you had a pretty significant movement by the union on november fourteen on one of the most difficult we contested issues bargain so how on earth me and determine from that are determined that there was no substantial evidence for the board to see him that those events where there was not an impa nov fourteenth fifteen sixteen whichever day you're picking on on the issue of changing from gross to net that was a shift however there again were three key issues here the union made absolutely no movement already moved as far as it was willing to move and it sought to get the union to accept its last best and final offer and that's why it wanted the company never wanted an impasse it wanted a contract well wait a minute what a day and the company sought to again meet with meet with the union unsettle occasions but it was it was the union sat on its hands and gave no response whatsoever there was no indication that the union was further willing to compromise its position on a specific issue and that's what has been found for example in plain view on which the board heavily relies you know the union at the final bargaining session softened its position on all three issues that were that were in contention for the employer it gave the employees ask the employer for additional dates it provided it so no number for the employer answer to mediators which by the way the union had invited in to help with the final session and then later that day the employer fax a very aggressive proposal which it suddenly termed its its last us and final offer and it refused to meet with the union further and the employer then claimed impasse on a single issue  reserve the argument and to make sure that the board did not plan to rely on it in its brief it was a preemptive measure that as we as we discussed in our reply you know to the extent that that that is not an argument the board is making then we don't see that as an issue anymore and for these reasons the petition for review should be granted thank you  is michael joseph or the and i would be i'd like to begin by addressing a few factual matters raised by opposing counsel first of all with regard to the when the letters were exchanged initially the union did indeed send its letter on on july appendix seven forty seven of the which is the i would use decision the l g a notes that the union in fact responded with a date of proposing an earlier date november twenty seventh and that response was made major shifts in their positions that have opened up new grounds for further bargaining they're entitled to an opportunity to exhaust those further possibilities in the light of the new the new changes you know you think that was not true  one didn't intrusive your honor the parties were still moving near the end but from the outset the company had made very clear that it was only going to make one final offer and when they did make that final offer it was crystal clear about the finality of it in this case well of then the union tried to come back after that and make these empty protestations of flexibility and that's what we do not have in this case what we have instead is the parties making fundamental shifts in their basic approach to part of our fourteen november fourteenth your honor the union made a basic shift a fundamental change in its approach to the bargaining which is the exact criteria that the court looked for in wayne view where the union shifted and this was the quintessential sort of back and forth between the parties t characterizes good faith productive bargaining on that day they started out talking about one year agreements the company began by making a increase in the net percentage it was willing to pay for a one year agreement a response from the union after the company made clear we absolutely need net the union acted in response to that and that's again similar to what we have in winfield where the parties are listening to each other and are acting in a way that addresses the other party's concerns and then opens up new companies got some real concerns out of the union was deliberately dragging its feet time is on its side he gets to keep these terms as long as the negotiations keep going how are we supposed the situation can be different when the company is faced with the financial difficulties of course they disclose who the lady gave their books to the end and partly because of pension and health costs so out of which changes the incentives because the original notion of an employer having the right to put in his last  offer was designed to give the employer a weapon to be the union this is not that kind of situation the employer is not looking for a weapon he's looking for survival your honor i have two points in response to that the first is that the law does recognize an exception to the inquest doctrine for action circumstances when there are substantial business justifications that require the employer to act immediately then yes the employer does have the flexibility to do that w lockout the union could engage in a strike the parties still have the ability to bring pressure to bear on the other side if they feel that the other side is not being sufficiently conciliatory  critical fact for the courts consideration is that at that last sales meeting on november fourteenth the company dropped significantly from its initial request that the employees pay ninety one dollars and ten cents which was half all the way down to thirteen dollars and fifty cents ri or for them to claim that there was no movement going on this is not reflected by the record the momentum that the parties had from these back and forth was only stopped by a pause rather by the fact that the parties had to get to bed why wasn't there an impasse on  pensions had to be resolved there's been no new pension without kozel as i understand it since november nineteenth you have strength out about ten days after thirteen why isn't that have pensions are happening freeman your interviews are fungible money issues this is as as in the grinnell case this is a matter of dollars the money that the that the union was proposing to add to its health care offer is money that the company could have just a drop or towards pensions the fact is that negotiations were still in flux and there's no sort of indication that the standard as set forth in in when view is that for a single issue to cause a deadlock over all it has to lead to a breakdown of negotiations that's not what we have evidence that they were resorting to alternative means or you know the very very weighty pressure they're going to hold a level of pressure against the employer you're on strike the possibility of a strike is always on the table the fact that the u s is in serious strike when it did not ultimate he announced a strike it never took it took strike action so the fact that the union was contemplating that internally doesn't weigh heavily in the analysis here and that would explain all the board's analysis is relatively brief as is the improvement in the unions commission offer which is a joint appendix three fourteen on february thirteenth you have the employer changing its offer on non manufactured products so the parties are able to reach a tentative agreement at nine point five percent which is a join appendix one ninety four and on february twenty seventh you have the union for the first time embrace in the idea that the future increases from fourteen point five percent to fifteen percent and you have the union the idea that it would in fact take a percentage of increases in sales to make that happen so you have both the union on february twenty seventh going to one percent then one point five percent on march twentieth one point seven five percent and the parties bring in a mediator at the at the company's request so at that time the parties the factors that we've laid out make clear that the parties were indeed still making movement at that time and the final point i'd like to emphasize  contemporaneous understanding of the parties on november fourteenth as was noted the parties did not say that that anything was final will in fact testify that she still hoped to reach an agreement that's drawn appendix seventy five and the very next day when the parties met honour's made a great point that there is a difference when an employer comes into negotiations seeking concessions it cannot be treated like another situation because at the time that the employer was was seeking concessions it voluntarily provided a great deal of financial information to the union which was not question and at the same time it's undisputed that the union internet and seeking to resource wages and benefits that it felt were lost in the past and when the union recognized the company's need to cut costs it's sop to avoid the concessions that would inevitably come with a new contract the union also however wanted to avoid the appearance of impasse which could either result in a lockout or unilateral implementation and the best way for the union to achieve this delicate balance was to extend it as long as possible it did make it in one take a concession on november fourteenth with regard to the commissions again judge williams there were two additional key issues one being pensions where the union never and to date has not changed the company did it for size and i do believe that their record citations that have to have relief in three areas one was pensions one was health care and one was commissions for the out sales to health care to the union had never ever entertained the of allowing the company to have flexibility in its plan and to exclude covering retirees those issues left the health care is you know deadlocked despite the fact that the union raised an issue or a proposal regarding a central state's plan which the company explained would cost twenty percent more to the company than what the company was already proposing for these reasons your honors i appreciate your time and we would ask that the company's petition for review be granted and that the board's petition for enforcement be denied the case is submitted we're going to take a very brief recess for the second