good afternoon may it please the court kimberly webber on behalf of the petitioner union i would like to reserve three minutes for rebuttal if i may your honour's this case is here before you for the fourth time because a clear board intransigents the board has abused its discretion once again first by departing from an unbroken chain of fifty year precedent which establishes the appropriate and standard seduction cases and by instead ordering only moved remedies back into the board violated the principles of federal court review by refusing to accept this court's two thousand and eleven to issue the standard remedy first issue can be boiled down to three main points the problem with the board's creatures an arbitrary remedy is three fold one the board knowingly record page one thirteen and one twenty the board has known it that the employers have ceased operating their las vegas can see you knows back in one nine hundred ninety five and this is a longstanding fa all of the remedy is that the board has ordered require a functioning employer the only type of remedy that is standard within the board's authority that does not require a functioning employer is money damage offered four reasons for its departure from its fifty year precedent of awarding reimbursement to the union and all of those bases that were non logical first the board claims that the court's ruling in two thousand and eleven was contrary to bethlehem steel that is a mis characterization of the court's ruling second the board complains that compound interest is unfair yet the board has not overturned its interests precedent and more over a dispute about interest says nothing about the reimbursement of the principal amount and the third basis was that the board claims that the employer steal well if your honor looks at the board's decision which is in the record they use the word correctly and that's an excerpt of records page five as the court knows that is not the court's own ruling in decision the court found that the employers violated the law in one nine hundred ninety five the fourth basis that the board cited for it decision was that there was no reason to believe that the employers will violate the law going forward again based on this idea that they correctly followed the law in one thousand nine hundred five but even assuming in argue endo that this is true it would justify a refusal to deny prospective relief but the board ordered only prospective relief and this reasoning does not justify denying the the past wrong as i mentioned before these reasons cannot and do not explain the board's decision to deny the only viable remedy or let me ask you this why can't the board in formulating a remedy i mean you're right we said the law with this isn't a question of retroactivity we said what the law was the violation was so we sent it back and said for purposes of formulating a remedy  appropriate we infer in constructing that remedy and going through the analysis of it why can't they look at her can we look at the the board can you say the board does have discretion the problem with the board's decision here is that it has claimed that it is issuing relief but then it ordered no relief at all and i think this is the problem here is the remedies in this ford's decision that's another part of this problem so the problem with the move remedies and the reason why this is an abuse of discretion is that the board stated that relief would be appropriate and then they ordered no relief so the move remedies created this false front where in the board could explain the basis for decisions that it was not making and similar i think going more directly to your your question when when the board went through its reliance  question it was copying word for word from the board's prior order in the w k y o c decision about retroactivity and prospective relief now again that was a decision that the board business oh i want your remedy run if you got it so the remedy would run for as long as the employers employed at the bargaining unit it was a year maybe slightly less your honour's i suppose that's a matter for compliance i would agree yes i would agree with that your honor that's basically the basis for the what is a hundred sixty two thousand that you say at a minimum should honour's this case continues to be the rare case where an open ended remain and is inappropriate and that is based on two principles one remained  an appropriate because the agency has refused to render a proper decision in this case despite repeat opportunities we are here now for a fourth time the board has persistently failed to recognize the authority and the direction of this court and there is no reason to believe that the board will properly translate this court's ruling now into appropriate relief and the second guiding principle is that remained is unnecessary because the record has been fully developed and the conclusions that must follow from it are clear the board has found that relief is appropriate in this that is reimbursement to the union into its members with interest there are no exceptions to this rule now this case is distinguishable from back pay remedies or bargaining order remedies where sometimes the board deans back pay appropriate sometimes not sometimes a bargaining order appropriate sometimes not there are different formulas for backpay there are different lengths of time for bargaining orders there's a whole menu and a to the union with interest is if it is a compound interest always required under current board law compound interest is required for make whole remedies and that authorizations that were intact at the time and their word would have been some members that paid themselves and we have records of who they are those people are and how often they paid and that is properly deducted from the amount that goes to the union this is actually all explained in further detail in the union's brief to the board after the two thousand and eleven remain and that's in excerpts of record pages sixteen sixty one the other aspect of reimbursement would be making those employees whole for the expenses they incurred in paying their union dues out of their own pocket  and those expensive health typically been postage mileage opening alternate bank accounts whatnot and those are remedies and issues that are reviewed in the compliance stage so that other reason why there is one clear conclusion in this case about what the appropriate remedy is is again that it so happens that in this particular case there is only one non remedy thus there is a clear conclusion that flows from the record of this case which makes with instruction appropriate here and if i may your honors i will reserve the remaining time for rebuttal ye good morning your honor if i may please the court i am greg lauro for the national labor relations board with me at counsel's table today is the intervenors counsel mr looky who will have five minutes of our time i understand that the issue in this case is whether the board abused its remedial discretion in the way it tailored the remedy in this case to the particular circumstances that is in the board's view it didn't grant all of the typical remedies because this was not a typical case and as we get  which a monetary remedy was not given you know a deuce check off scenario in short i would agree that this is the only case where that particular remedy was not why is that an appropriate rationale when it's this court has held that that view was just flat wrong no i understand your question your honor in the board's view the employer correctly believed it was following it as it existed in one thousand nine hundred five the board acknowledged what this court held in two thousand and eleven which is that the board's rule at that time was an adequately explain it but i think that's hindsight the court's two thousand and eleven and its two thousand  decisions raising that issue in describing it were unavailable to the employer in one thousand nine hundred five what they had then was clear a board law that they could act the way they did at the expiration of the contract but that's but that's exactly my problem is that our holding means that there wasn't more gloss to the effect of the employer wish there were that the law was actually what we said it was in one thousand nine hundred ninety five and not one of the board or the wrong and having done wrong you know i understand your honour's point i just want to make sure i adequately adequately express the board's rationale so that this court can evaluate it the board's concern is again that the employer was correct and it's a view of what board law was in one thousand nine hundred five i fully understand what the court held in two thousand and eleven but the employer did not know and could not know at that time that sixteen years later this court would change the law the employer had relied on and which was settled board law at the time so on the boards of you that is detrimental reliance by the employer and in these particular circumstances the board exercising its discretion and its duty to tailor the remedy to the particular and unusual facts of this case decided that make will relief dues reimbursement expenses were not necessary to effectuate the expert basis and i would submit that although reasonable minds could disagree on crafting the remedy that way the board picked a reasonable group one that's within its broad remedial discretion and one of these employers cease going well the what we know on the record was that the hotels were sold and one was destroyed i think it was in one thousand nine hundred five but something my opponent is concerned about and argues that i think is a bit premature is the claim that we simply don't have a viable employer to effectuate these remedies because we don't know that yet the board's order runs against the respondent and its successors in a saw and assigned at this point there's been no finding whether there is a successor that can affect the way the board's order that successor of may or may not be arch on who's representing itself here today it's just a finding that has not been made there is no record finding as to successorship and to whether we have an employer viable operating in nevada that can effectuate these remedies if there is no viable employer counsel argued essentially that these remedies  well that something is nothing to them though i understand counsels are given i sympathize with their concerns my point is that it's premature at this stage of the proceedings we don't have a record as to whether there is a viable employer we don't have those findings that something the board would address in compliance and a couple things about their concern with the bootlace of these remedies at one point one argument they made to the board was we don't think two of these remedies cease and desist and notice point posting are any good if the business is in question have been sold but if the board explains if the record shows these businesses have been sold and in there i understand the evidence of that will require mailing of notices which will apprise employees of their rights and the violations found also the supreme court has rejected the idea that those remedies cease and desist and notice posting are not viable absent monetary relief the supreme court explained that they right now he's under a new ground record new employer and there is a jet lag the yes your honor those are all considerations that the board would consider in compliance those are not a matter of the record in this case and the board has not yet had compliance hearings to make findings on those issues as the court knows it is the board's judicially approved practice after an order has been enforced or the scope of the remedy is settled to then have compliance proceedings to tailor it to the particular considerations that may arise such as whether we have an a ploy or who could viably effectuate these remedies but just like that i understand your position correctly it's that reliance is the essence of the board's position here yes i think that's a i think that's is the essence of the board's position and as the board pointed out if if the board reasonably found because in recognizing there is some discretion here that this employer relied on board law as it existed at the time there was no reason to believe the employer wouldn't continue to follow dues checkoff law as it stands now and i think the board's explaining this is not like other cases where you have the deterrence concerns with the repeated violator with the same kind of violation but i appreciate this concerns this court's concern that in two thousand and eleven it stated what the law is to do is check off and that the board hadn't adequately explained their different rule but i think as argued by my opponent that that's hindsight again this employer didn't have the benefit of the court's decision in two thousand and eleven or the concerns that this court stated in its decision in two thousand and two were relying there on subsequent events event seven years after the employers acted and chose to act as to board law that existed at the that's i think that does dovetail and of course you're right your honor that's another concern that dovetails with the board's concern about the employer's detrimental reliance on board law as it existed at the time it acted and the compound interest in the board's view would compound the unfairness but you know so it unfairness coupled with the line i think it could be put that way i or it could be said that the compound interest would be an exacerbating factor of that reliance and i do acknowledge i know that the litigation in this case has been tracked but that doesn't change the fact that the employer was following port law as it existed in  hundred five and yes that is a main part of the board's remedial decision in this case but i want to clarify a couple things that i think will be helpful and that's what i don't think should be in this dispute in this case the board clearly said we acknowledge this court's finding a violation we accept it as the law of the case we acknowledge this court's remained to determine what relief is warranted or even that didn't dictate what should be in the remedy but left it to the board usual to discretion crosstabs it's not going to be able to collect some of its dues that may be so and i mean that you're going to happen and so that you're in a position of saying well there was a mistake and reliance i think it was only a mistaken reliance and that the court sixteen years later authoritatively expressed a different view of the law i don't think it was mistaken reliance i think the employer did have a correct view of what board law was at the is a rare case it is and the board does have is the court ordered discretion to award appropriate remedies and based on particular facts of  case in our view they did hear particularly giving given the length of time that elapsed over the course of four trips to see you but also the fact that  the hotels were sold early on in these proceedings and extraordinary remedial relief was called for in our view appropriately granted the  petitioner here in its arguments would substitute its judgment for that of the n l r b with respect to what an appropriate remedy is in our view honor i think puts a finger on the probably most salient point here that's a compliance question these are all compliance questions including who if any which if any entity is a successor or an ass any to the employers here in that is a compliance question it has been we think decided by the supreme court in golden state bottling where successors can well be liable for the unfair labor practices of their predecessors that's a compliance question in this matter the union has asserted in error the petitioners asserted in its reply brief that the current employers of those hotels are not successors there's no foundational fact in their brief to support that assertion nor is there any citation to relevant authority they also assert in their reply brief at the impact that employees are no longer employed in the industry liability whether or not there are adequate ways to notify employees of the remedial obviously immediate remedial order to post notices and advice employees  you know we said what the law we said there was a violation when they stopped the d's jocko the traditional remedy and both sides of acknowledged as reimbursement and the seems to be all practitioners i think as controlling law thereafter for three decades and was cited as i think we mentioned in brief i know we mentioned it brief with approval certain people would understand we certainly understand the view today your honor certainly of this court and appreciate that but during the three decades between battle steel in and and now i think it's fair to say that employers relied on bethlem steel and its progeny including on campus sheet metal in a right to work state prospective rather than retroactive remedies based on the equities of the case and in our view particularly given the passage of time it would be best in justice to order  the payment to petitioner of union dues and compound interest given the quite obviously unique factors present in this case the  employers followed the law as the labor board and even at least one court of appeal found to be the state a lot the time and there is a disagreement by the ninth circuit we understand that we understand the rationale but given what's happened in this case the amount of time and the detrimental reliance that the employers had the overtime and i go i see that the board in its argument today and in its brief said that the litigation in this case has been protected but the thing that has been truly protracted in this case has been the board's decision making and now the board wants to prolong this case even further by proceeding to a compliance hearing when it knows what the outcome of that compliance hearing will be it is undisputed that the employers are no longer functioning in las vegas now even if there are successors in this case which the union contends that there is a successor the order of remedies are moot it would be moot to order a successor the this particular law it would be new to order the successor to reinstate the check off for its employees it would be moot to order the successor to bargain with the union again the only viable remedy is the money damages and for a discussion of what happens to remedies when the employers change the nature of their business i would point the court to em hard industries nine zero seven  second three seventy two which is the second circuit decision and that again found that most remedies will require a functioning employer whereas money damages do not have that requirement listing the mood remedies in a notice and then putting a stamp on them furthermore does not frankenstein these remedies back to life as written those remedies are mo the board meanwhile in this case should not be permitted to sweep aside fifty years of precedent in these dues checkoff violation cases by refusing to recognize this court's decision the remedial order must be reversed and this is this rare case the board has proved its a self incapable of understanding the court's decision in two thousand and eleven or in any of the court's prior decisions without instruction would only further prolong this twenty two year case the union asked the court to issue to remain on this case and ordered the board to issue the standard remedy