reasons three of them relate to the employer's conduct in removing bargaining unit employees and their work from the bargaining unit before expiration of the collective bargaining agreement those three reasons are the management rights calls contained in the collective bargaining agreement itself the national labor relations act itself and then lastly the unions failure to request bargaining after being given advance notice of the change in the management rights clause itself it's specifically provided that the employer retain the right to establish job classifications and discontinue job classifications and to assign and reassign work administrative law judge incorrectly held that this clause was an ambiguous because it did not define whether or not that language was limited to changes within the unit or external to the unit that doesn't make it ambiguous it just makes it broader than they like and they want in this case i'm sorry what of that argument the administrative law judge found that this clause was ambiguous because it did not specify whether the changes that are describing classifications and work or enter a unit or x donald to the unit but that doesn't make it ambiguous that just means that it's broader than i like it's still very clear and unambiguous and that's a to no issue for this court to determine interpret the collective bargaining agreement itself it doesn't say exclusive or unilateral or can't bargain you know it what it doesn't say that's important is it doesn't say within the unit they would they want to act to read into this measure of rights cause the phrase within the unit and that phrase is not in there in fact the management right clause goes on to consider and and specifically reserve the right for the employer to contract out work and that's extra not to the unit as well and so specific to work transfer essentially you're saying they bargained away their right to object to a work transfer but work transferred out of the unit ok even if that were true that the n l r b here held that this was a modification of school this is a union jurisdiction you unilaterally took the the dispatcher's out of this that unit right and this the similar to remain you've just taken out title of persons from the union where their argument is both the would say i would distinguish it along the language of the management clause itself and i would also distinguish along the lines of we have another hurdle and the other reason is the act itself and the act itself deals with supervisor status and that's a fundamental of the terminations about whether an employer has violated the act or not that should be the first thing that the n l r b looks to to decide whether we're talking about supervisors or  needs to be remanded back to the board to specifically consider supervisor status if this court the violation is your unilateral changing of the scope of the union that's a threshold violation whether or not you could have agreed to put a supervisor into a union you could have negotiated that away we could have agreed to put a supervisor in the unit if both parties to a collective bargaining agreement say we're going to put a supervisor in it then you're as bound by that agreement whether or not going to states we're still the law and these work and these are managerial folks and that is board law and that the board by taking that position expands in essence the jurisdiction of the act because in section two of the act is where congress specifically exempted imports exempted supervisors from the definition of employees it went one step further and section two fourteen it said that the employer cannot be compelled to bargain about supervisors ok soup of these these positions have been included in the in the bargaining agreements between these parties for forty years these positions have evolved we addressed ice you challenge and backed off right now twice we mentioned it there was no challenge it was just mentioned for discussion and in both times consistent with this time the board didn't say the union didn't say let's bargain about that the union says we're going to have to file an unfair labor practice charge and they did that in this case but they did it way late they did it after the agreement where the change occurred had expired they waited till after that agreement expire they waited until a new agreement was entered into the current reduce the current agreement put these people the current wanted  twenty a j or you did i did not i'm aware of the i'm saying i'm aware of the court's decision here recently in the energy mississippi case and to address that i would say again supervisor status is a fundamental determination in this case is different from the energy case in that the court the in the board excuse me never reach that decision you'd say the record shows these have disciplinary authorities have discretion even under the higher even under the higher standard apple in even under the specific issues that this court remanded the energy mississippi case and that's to respond to assign employees to work locations is that done with independent judgment and we have very similar evidence in the record as to the duties of these as it is as this case comes to us it's my view that that issue isn't there because we're dealing with these earlier questions of whether you agree that they were in that number of cases most most of those cases are determined on the basis that the notice was announced the same day the action took place or very shortly there after the other cases where a fait accompli was found when there was a notice the union did something affirmative like file a grievance which they had the opportunity to do here and did not before the change was implemented and this case notice was given to the employees and to the union it was  in the same proximity of time within a week and the record reflects and that was due to testimony but the employer in this case made every effort to give notice to everyone several weeks before the change on the summer one the change  occurred that they had a meeting with the union representative for the specific purpose the the testimony differed in that regard between the employer and the union representative it was not inconsistent but it differed what what about the fact is i read it the l j made of specific credibility finding saying i believe poor so i don't believe granik we would review that finding for clear are correct and i don't believe he  subjective testimony is credited by the fact finder the the board decisions on that issue indicate that a subjective conclusion by a witness isn't is not the thomas of of that issue so what they ignored because i would have thought we would only review that which could be decisive as to fait accompli union rep says we were told it said see later there's no room they wouldn't grieve they wouldn't bargain and if the l j says i heard that a credit why isn't that the end of the story but what's the best case that says that that's just subjective and we don't give that deference i'll have to look that up and i'll give it to you on  is addressed in our brief that is if it is simply a subjective finding  was going back to that conversation that conversation that occurred they said what they said there is where the testimony differs is the union says well we're going to file a complaint but they did not until after the agreement expired and and several months at least a month into the new agreement they did not follow agreements they did not write a letter they just did their testimony was we're going to have to follow a that is not tantamount to requesting barking that's threatening and something that they didn't end up doing until later the testimony was absolutely clear that the employer never refused to bargain and in fact once the agreement did expire it was in the union in the employer's proposal again to the union and that goes to the issue of the thomas of our new classification petition so after these were removed from the union contract expires come to bargaining and in february of two thousand and eleven that was specifically in the in the employer's proposal general council exhibit eighteen striking the systems operators from the unit instead of bargaining over that issue the union proposed a reservation of rights letter which was executed but again the employer tried to bargain over that in a simplest position that we're talking about supervisory saddest employees here that we can't be compelled to bargain over but they offered to bargain over that in those  petition yes it was outside of the normal timeframe of even a clarification station but it was in direct response to the unfair labor charge because at this point considering the management rights clause considering the bargaining at the time of the change considering their refusal to bargain over this issue at the new negotiations they then in march filed a unfair labor practice  complaint in normal procedure we presented our evidence to the board to the investigator and so at that point we still don't know if this is going to result in results in a complaint or not so then it does in fact result in a complaint at that point in response to a complaint we following a clarification petition well the justification for not considering the unit clarification petition at that point is it's too late it would disrupt the bargaining process well obviously it did not disrupt the bargain process because back in february they got a deal on every single other issue that was bargained over except the one the thing you know if used to bargain over and that was the removal of the of the supervisors from the bargain you're successful in loose would benefit is it to dixie electric at this stage we have a new contract the supervisors of supervisors again if i understood what you were saying earlier outside the record what i we used to they would in essence yes they would they would say we have to put them back in the unit in the in the current contract and then negotiate over what was their salary will be what their wages would be in that case it's our position that arguing though that they are supervisors your employer is just so not allowed to unilaterally alter the bargaining unit and so and you never you never as i read challenge that point you are you we unilaterally move them and we had a right to do that because of the management rights clause number one and number two in the act itself section two fourteen we can't be compelled to b by allowing the board to say that what you if you have a supervisor in the unit and you can't take it out that frustrates article two and section from out of one of their supervisors and not that they don't reach that point is that you be remanded to them to row if this court finds that the management right rights cause authorized us to do this there's no further inquiry if this court doesn't believe that the management right clause authorized to do that then the next step is are the supervisors under the act what's the matter what's a size language again on your management because it says some rights retained by the company include but are not limited to and then i'll skip over the right to establish job classifications comma and discontinue job classifications common to assign and reassign the work to be performed by employees or classifications of employees as the company may deem necessary that's pretty direct and pretty express and their argument is that the board's argument in that l j is finding that that's ambiguous because it doesn't clarify whether we're talking about within the unit or extremity unit it's just br morning hours may please the court michael jackson on the half of the national labor relations board prior to december two thousand and ten dentists chief system operator and system operator employee classifications were concluded in the bargaining unit represented by the union for a matter of decades and in december two thousand it was in fact a written collective bargaining agreement in effect that expressly included the operators in the unit then code then plainly violated the act when at that time it unilaterally removed those employee classifications from the unit during the term of the contract substantial evidence in the record supports the board's finding first even if it were on unequivocally that they were supervisors under existing law that's correct your honor because the company agreed to include them in the game which is there any fear circuit authority for that if the parties agree to put a supervisor manager into a unit then they're bound by is that just an obvious has voluntarily agreed to include these people in the unit for decades and expressly did so with respect to the two thousand and seven to two thousand and eleven collective bargaining agreement or five million clued in within the union or not you have workers well if they make salaried workers out of then they would be rendering the collective bargaining agreement in operative with respect to those employees because the workers who are covered by the collective bargaining agreement who are recognized by the company as being represented by the union are not salaried isn't your answer that they can never do it unilaterally that it's that it could be mandatory or permissive bargaining but they couldn't do it unilaterally under the law that's that's correct your honor once a specific classification has been included in a bargaining unit as was the case here that position cannot be removed from the unit unless the employer obtains the consent consent not just part apologise let's go back to ground zero back at ground zero you probably have to deal with the management rights clause because if we are putting aside the uncertainty goal states to entergy and whether this record shows these people or supervisors and the outside of the record kirk put all that aside your position is you've got to section eight violations simply because of the unilateral removal i think their answer is no you don't you bargain that away with the managers rights clause well yes your honor but to begin the management rights because simply does not apply when it comes to the board's initial finding that the company unlawfully modified the scope of the unit the management rights clause is only relevant to the board's alternative finding that even if the company did not modify the unit scope it unlawfully removed work from the union that state you're familiar with all this jurisdictional scope question there flips of the same coin well you know yes i know you're talking about your honor it certainly can be a hard distinction to make but it's not at all hard distinction in this case and i will tell you why to begin the bargaining unit it is defined by the listing of specific classifications the operator classifications are issue were specifically expressly listed as included in the unit for ever and at the time that the company took the you know letter action here additionally the company clearly undisputedly removed all of those classifications from the unit during the term of the agreement all of the positions were eliminated so why doesn't the management write clause that says they can discontinue a classification cover that step well well again first honor that the with respect to the unit scope management rights does not apply the standard there is not one of waiver the standard there is one of consent and i would point out that when the parties signed their february seventh two thousand and eleven reservation of rights letter they the company agreed that the union had not agreed at any time to relinquish representation of the operators so management question when it comes to the board's finding as to the unilateral to answer my question yes and what is the well there are two faults i guess the first flaw is that it's simply the management rights language as a legal matter it is the language of the quality does not do that well the only language that the company relies on it in its brief is that it authorizes the company to establish job classifications and discontinue job classifications at oral argument company also reported point to later language in the clause that talks about assigning reassigning work however they've waived the issue by not just in their brief they soley rely on established job classifications and discontinue job classifications what's your case that stands for your first response which is as a matter of law it isn't something that can be waived what's your best authority your honor it would be all of the cases that we cited in our brief in the applicable principles section having to do with unit s that it is a matter of consent it requires consent with this which is has any addressed the issue where in advertently it was surrendered i'm not i'm not aware of a case of so let's assume you're right or you're wrong move to your second argument just focusing on the language of this why is it wrong i think you are trying to get to them yes or so there are a few reasons the first is that the standard which this court has recognized is the standard when it comes to a waiver by language in a collective bargaining agreement concerning statutory rights the standard is one of clear and unmistakable waiver the language that the company points to does not constitute a clear and unmistakable waiver of the union statutory right to bargain over the transfer of work outside of the unit and i think that the regal cinemas case by the circuit was mentioned before i think that is a very relevant case and it's helpful in this regard the language there granted i think there was i may be off by a word or two but it was unmistakable waiver authorizing the company unilaterally to move work that had been performed by unit employees to nine unit managers so i think that's an illustrative case i would also point out that as a matter of fact the company did not discontinue these jobs it did not the same employees continued working under the same title in the same contract between essentially the exact same work so the jobs were not discontinued they were simply moved out of it's the same people doing the same jobs if they thought they had done authority under the management rights clause they would it would be logical they would have used that same authority to earlier times when that's that's a good point there are yes i mean the two earlier times as you mentioned there's it's in the record it was brought up that the company was interested in taking these folks out of the unit the union protested the company backed off that's right the company's reading of this language it should be pointed out and the d c circuit actually found the same in the recall cinema's case the company is reading it would have the union waiving its statutory right allowing the company to see this or at the unit to destroy the unit by at will designating that any given or all unit positions have been discontinued by simply designating them as managerial having the same people doing the same job just say now they're out of  if it was really highlighted before that again the two thousand and seven the fed excuse me the february seventh two thousand and eleven reservations or right language that was signed when they negotiated the two thousand and eleven two thousand and fifteen that says you know the parties agree that the union has never relinquished so i don't know what happened in any negotiations that might have happened after the record closed but you know the boards the board's order requires that they were send there their unlawful action that they i wasn't clear but i was trying to explain what it means what it what it means is that they as the board states in its order that they were sinned their unlawful action their unilateral action of removing these people and their work from the unit that they put them back in the unit they expressed in the board's order on the fed accompli discussion your position is there is a fait accompli because the language is declaratory there is a fait accompli because it was announced to the employees before the union it was too proximate to the change or all of the above almost all of the above here are the reasons that the board relied upon and there are several the first is that the company's witness mr may vice president may emitted that the company made it decision in august august of two thousand and ten that several months before they ever notified the union of the change that's the first reason the second reason is they notified the affected employees over four week before they notified the union that's crucial and an additional reason supporting that that a complete finding the additional reason is that the company communicated its decision as a resolute matter that this was final that they were doing this and that it did not matter in fact and that's both in the oral statements that the company made in their meetings with the employees and in their meetings with the union rep and also in their letters and in fact during the meeting that mr varian it had with poor so the union rep when he told them that the company was going to do this when mr po so protested by saying well we're going to have to fire a labor board charges he was resolute his response was you do what you got to do i did what i had to do this is the direction we're going in that was poor so is testimony so they were resolute and all of the circumstances poor seaport advertisement and there's another and that in the gulf states i think it well that might have been a different gulf states than the other gulf states consider talking about those those cases point out that  they make clear that the company's obligation the employers obligation is not only to provide timely notice not only to provide notice prior's implementation but to provide meaningful notice notice which at least affords the union a reasonable opportunity for counterproposals and when objectively the circumstances as a whole convey the any request for bargaining would be futile then the union is relieved of any obligation to request bargain honor i'm not sure where to turn next i guess i would say i've already addressed the oh the company said i'd like to address a couple points if i could if the company made they said that the employer tried to bargain in two thousand and eleven and that the union refused to bargain in two thousand and eleven i find that comment rather remarkable considering that the company had already violated the act by unilaterally taking these people out of the bargaining unit in december of two thousand and ten  right to do want to know your honor that's it doesn't the case does not come down to that because again again the board's position is and the company has presented no argument no case law to refute this position that the management rights language is irrelevant to the modification of unit scope the management rights language as a legal matter is relevant to the board's alternative finding that even if the scope was not modified the company unlawfully took work out of the  the management rights clause is not is not relevant as as a matter of law when it comes to the board's initial finding that the scope was unlawfully modified i guess i can't your honor as i just what game would would emphasize that the facts here are remarkably strong in the board's favor the board's finding is supported by more than substantial evidence these classifications for a matter of forty years as has been i believe admitted by my opponent were included in the unit at the time of the company's action the classifications the individuals involved the operators they were expressly included in the bargaining unit by the terms of your green it which was still in effect it's undisputed that the company took these folks out of the unit while that agreement was still effective all of the positions were eliminated all of these employees were moved wholesale overnight into new non unit positions and in those positions the same people kept working under the same job title doing the same work out of the same control room it's al november prior to november seventeenth the date of the letters advise in both the employees and the union of the notice there were meetings with the employees on november eighteenth there was a meeting with the union this is prior to the december one  date that was stated in the letters threshold argument that you don't have no duty to margret that's the distinction but if we did we satisfy that duty then that then the union had to take some affirmative steps after november eighteenth they could have again they could've fall agreements they could  have gone and file their unfair labor practice charge that they threatened or they could have simply requested bargaining they never requested bargaining the employer never refused to bargain going back to the fait accompli case that talks about subjective impressions that's the mcgraw hill case cited in our in our brief and that affirmative statements about what we want to do and some a subjective impression on the part of the work of the of the recipient of e the record the section of the record it was mentioned that the decision was made and august that ron may one of the management employees that testified about the change that was made in august his response in the record was yes but there were discussions that took place and and they are very actually recognize that on page sixty three of the letter he said now you said you had discussions internally in august of twenty ok those are discussions in august of two thousand and ten he found that the decision was made and in august of twenty ten it really doesn't matter when turn only the company decided or not decided that they wanted to pursue this course there's also evidence in the record that and then in october they're still putting together the job descriptions for these management employees what happened was in november is when it was communicated and in advance the records show that in or vance of that meeting that floored corps show the  union representative he was aware of what that november eighteenth meeting was going to be about the union steward had already told them because there had been discussions with the employees there there is a waiver case where note no notice was given it to the unit at all the union was in essence imputed would notice because of notice to the employees in this case jim co went above and beyond to make sure the issue was put in front of them put in front of them in an opportunity to where if the it's a union want to request bargaining they could what about his point that your interpretation of your management's rights provision would allow you to discontinue the whole you well it we could do it under another clause in that mansion right because if we reserve the right to contract out work so you're that they surrendered their right to have the integrity of any unit i'm saying that that was not done in this case and that's not the facts of this case we did not investigate the unit we removed folks that we believe to be supervisors like but your interpretation of the clause is that it's clear and unambiguous that you could not if this right unit we could see exactly what it says we could change job classifications and we can assign to reassign work and further it says we can contract out any work that then we're still within that framework in the mansion rights cause because the folks that we moved were supervisors and that's why this determination of supervisor status was important opposing counsel mention that nothing will compel us to bargain over that and that's right that's what section fourteen says but it also goes further and it says no  fourteen i says shall be compelled to the minute it was the final supervisors as employees for the purpose of any law will section eight d is a law it's in the act itself and that's a law that you cannot compel us to bargain so my argument is when their supervisors that we don't have a mandatory bargaining under eighty four deal so as my colleagues have another question thank you very much and take  before the next argument