and then they looted examine whether there's continuity in terms of the operation of the syllabi and also whether continuity in terms of the workforce and as a work force there isn't continuity  workers from s r it wasn't simply compelled by the ordinance it that was its desire it specifically wanted to do that testimony and based on this testimony from i honestly concluded that this was not driven by the ordinance it was driven by a desire to fire as many people who had previously worked there because they knew the space and in th freely evaluate aren't since it turned out that there were individuals who are subject to the ordinances and that there were no longer jory on the part managed membership how many is that so there's the five recreation employees who like nobody even knew about and there is a couple of supervisors who probably should have been in the unit but were allowed to be a unit and then there's how many others correct that the a l j made a specific finding that the that the union was in fact bargaining for all of those employees and that and that even the five non union members o recreation employees got the got the the whatever it was the forty the forty cent rate is the same raise that the union members got by virtue of the of the of the bargaining of the union under the c b s a and that and that this was and that as as a factual finding of the a l j the union was getting the the benefits for the nonunion members as well as for the union members i believe that that's correct but at the same time you had individuals who were paying union dues or receive health insurance and they were getting the same benefits they were getting  the union was not negotiating simply for its own members and making deals simply for its own members but for all the employees that was the supporting evidence and and the a rejected the proposition that management simply decided in its own discretion to give to give those raises to the non union members the o j found out that was a consequence to two prior offenses prior claims that hardie might have with respect to things that had previously appen rather than a rather than a waiver of rights with respect to anything that they might do to her in the future that seems to me but to be a rather odd interpretation of a release to say that you that you give a really a release against release of your rights in a waiver of your rights with respect to any an execution of release it would seem to me that there's a strong argument for that it's enforceable against a success if it's so i don't you know you don't know the date on which the allege here so december th yes that's her but you're not claiming are you that the release was a release of with respect to future wrongs whatever they might be that might occur well anything another was your in other words you are arguing that she was giving a release for anything that they might that might be done to her in the future i think by that matter what you might do to me in the future i give you for fourteen thousand dollars or whatever it was ok so your argument is that this would cover your client in the event that your successor but only for conduct that took place before execution and every point yes good morning your honour's may please the court or she hear from the national labor relations board i'll go i think through a couple of things that came up during opposing counsel's arguments to start with what judge sullivan labeled the but he was most interested in the validity of the bargaining unit argument and i think what is getting lost in this discussion is that for a contract to be deemed a members only contract so that the presumption of the majority support goes away you have to show that the parties intended for the contract to be for the benefit of only union members and here so i would take issue i don't know that the l j made a finding as to the invoices that the union was only invoicing dues paying members what i will say that i'm confident about with the administrative law judge did find is he found that the union representatives came to the facility they administer it for in the  interest of administering the contract they filed grievances and several of the grievances were on behalf of the entire year nion so not individuals so they filed grievances for the units they submitted information requests for the so whether the union was taking in less money for its own you know what health care benefits did the nonunion dues paying people get health care benefits there's you know so there is testimony in the record unfortunately there's no specific finding from the administrative law judge this was a case where there was a lot of conflicting documents a lot of conflicting testimony so the best we have as it relates to your honor's question is two lists i'm sorry about the machine but there's two lists right one is the union dues list and the other  the insurance premium payment lists and they are exactly overlapping right i believe i believe that's accurate but there's not a finding from the administrative law judge what other finding could there be based on those two lists which are part after what could define i think what would be the explanation for why there is that perfect overlap if they call the union wants to benefit all the employee with respect to things like health care i think a perfectly could be that the employees were getting health care from another source they could be getting it from another spouse whether there is circumstantial evidence that there was overlap i don't know that that compels a finding that the union was existing strictly for the benefit of its employees so you have that what your honor just pointed out where there's not a specific finding about what was the purpose about that there and the employer had the opportunity to ask employees and bring out evidence and what we have instead is specific findings from the judge also supported by documents or evidence that this union existed not to the benefit just of members but the union and they said that the contract was administered for the benefit of all initially but i'm looking at aig the language of ace duran all right that's that's kind of a seminal case in this case right and it basically says that that the practice in that case made it clear that the parties merely be guardian of the collective bargaining contract as an arrangement other benefits overtime pay premium pay weekends paid all of that was administered consistent with the contract which i don't believe you had used around so i would say i'm not round that you do have very specific instances in this case dues but still need to be represented by the union they can pay just who are agency feeds so if this isn't a matter of baby that so that since to answer your question then i would say absolutely fifteen employees and that's not the case in this case but would enjoy majority support because for instance the board and i think we print this out in our brief the board in right to work states so where it where employees do have a mill union security clauses in the contract in successorship analysis counts even counts everybody in the unit so it's no different in this case so again not sure that it's that what you were looking for is an answer or are you thinking a different line i'm just trying to figure out you said  sloppy union doesn't alter the presumption and i'm just wondering well sloppy or willful i mean it is a clear to me if it's supposed to be a union only shop right right but the union but where they were that if i am in that unit and i'm represented by the by the employed by the union and i'm getting my wages increase every year and i'm getting my benefits and i'm getting my overtime pay and i'm not paying dues that does not necessarily mean that i don't support you that could mean in fact the opposite and the board notice it doesn't compel this but the flip side of it is i could view it as a pretty darn good arrangement but i'm not paying for benefits that i'm receiving the issue becomes when the union creates a contract where by it's basically just trying to funnel money to the union and not represent the union that's the problem that's the word i think really needs to look at is that the union only in name only representing this unit for the sole purpose of only representing those employees who are paying for that is a problem and that is not what happened here again there were reasons it's filed unit wide there were information requests filed unit why there was uniform in ministration the contract in terms of pay there was the bargaining request to be habitable union so i don't think this is an instance when you're the employer is able to show anything more than the sort of the big i can't explain title i just wanted him to check isn't it correct that the a l j also explicitly discredited the testimony of a part of management level that i want to test fied that that the when she i  guess it's a she was was simply exercising discretion and giving the same raised to the nonunion employees as to the union ones for absolutely all j found that that was not credible and found that and that that that it was that they were given the raises because the union's contract compelled it absolute that was a finding by the administrative law judge and i think this goes back to one of the st things that opposing counsel recognized during his time that i think judge sullivan  highlighted as well that the employer has a very high bar on two fronts here st from back channels them went st from what they talked about st which was testimony about their intention not to displaced workers act and then also even assuming they get past that and even assuming this court doesn't find that twenty one of forty people notwithstanding the work force preservation statute twenty one of forty is still a majority even then they still are getting they're coming up against very strong head that the that the board faction be committed errors when it made a finding that this was an appropriate unit that enjoyed majority support so i think unless there are other questions i'm happy to talk about hardys release but i think the last thing i wanted to highlight was that one of the very st things that said had to have been made by december five she was not a building service employee that's in the record she was a front desk concierge so they hired their initial and representative complements by december  again this is another in this case has multiple parts where the board rests its finding on two different paths either one is sufficient to sustain the st one is that the talk but that's actually the nd one the board talks about but it seems to be the one the court was more interested in is causing and that is this release specifically does not bind esplanade or sorry it does not start it does not apply to the company here the release is extent a successor comes in and inherits your own lawful actions as the predecessor you will also be indemnified in that circumstance but a success there doesn't mean necessarily that the phrasing of it includes the successor does not mean that county that get everybody mixed up in this case or that west and ultimate were free to come in and commit their own new violations of kinds of cases moving its golden state you know i think is the name of a case where the board in that case talks about the kind of release as it relates just express or that you can't as a basic proposition contract or not be part of the it so so so then you're saying that this release in fact related to compensation that she received for not being hired by the successor by three o five west end no no no because the release remember i is the party to the agreement and in the communications there is reference to severance payment thanking her for employment with esplanade there's nothing in the documents ever bringing in ultimate or three  quickly point out that the nd position then of the board yes this contract even if you found that somehow as a nonparty of county or sorry esplanade my goodness i'm so sorry that the company i was going to call on the company that the company could somehow use this even though they're not a party to it notwithstanding the board's finding but the board has found that on its face that this contract cannot bind the board's remedial authority but there are two different bases so if the court is uncomfortable with the successor issue and whether three or five west end should be the benefit of this i would urge the court then to look at the cases that the board sites where you cannot enter into one of these types of private agreements that bind  public policy of indications of the board i just let me be clear on that your view is that even if this was an agreement between west and hard it would not be enforceable with respect to  be reinstated because this is in essence a contract against public policy that's a position well the traditional remedy of the boards i've got to take issue a little bit because it makes it sound like she's not entitled to any of these things or that the board something strange here we did this is a traditional remedy so she's entitled to any back pay that she can show that she was entitled to during the time of her unlawful hire unlawful refusal to hire and the in statement date and it's going to be mitigated  proceeding for this in front of the board evidence is put on she can show that she earned this earned that the employer can come on and say you didn't look for work well or not so we can litigate over that and then at the end of the day they'll be a back pay specification that can be litigated all the way up to this court again and yes she is entitled to in statement she can refuse that in statement but the back to cut off as soon as the employer makes that offer and statement if she says i live in vegas now i don't want to come work at manhattan that's up to her dollars that hardie got under the agreement should be counted against her overall back pay sick if that makes sense so there is going to be an opportunity for the employer to make this argument that if depending on how unfortunate in this case is how it how it's inforced what if for instance the court finds that this doesn't bind the company or does that think that the company was a benefit to this and they should be benefiting then from the fourteen thousand dollars and their say definitively how because i don't know exactly how the case is going to shape and how it's going to look when it goes in front of a back to compliance officer so the best i can say right now is the employer is certainly free to make that argument and it goes before the board a decision issues and it's no different it's just the nd part of the bifurcated proceeding the cup but what i'm asking you is not not what the result will be obviously i'm asking whether the board would have the power in that in that proceeding to allow recoupment of the settlement that have been paid to avoid the circumstances that sullivan described in which the employer gets a double double compensation a gets a settlement and also gets the retraction of  consequence that gave rise to the settlement absolutely the board has the ability during the back to compliance to make that determination and would have been so yes they could say fourteen thousand dollars comes off the top of what she's owed and even then this court can review that if something  unhappy with that regardless of how the board decides anybody who was on any party who's unhappy with that decision can seek review after they go through the administrative process in this court so it doesn't end here and it doesn't even end in front of the compliance officer at the time of the back a specification o watch stock and barrel so there really wasn't any free choice was actually going well i mean both those two are not those two situations are not incompatible one can be compelled to do something which is the thing that one wants to do because of that because of the benefits of continuity the employer's familiarity with the job in the building and so forth you are and you're compelled to it doesn't mean that you didn't want to and i would and we've also got again at least two individuals from her stash to her supervisors that are participating in union members so i think all those things add up to a