morning judge pryor and i have enjoyed having judge richard tolman with us this week judge common hails from the ninth circuit and we really appreciate him come in all the way from a quarter assist us then deciding these cases this week thank you very much thanks for having me well we have three cases this morning and the first case is tom coup stainless versus the national it didn't violate that settlement the terms in there there are a couple different things one was a term that said you had to post this for sixty days which they did there also a number of terms about things they should do like clean up the personnel file and inform the employees of certain things and they did all those so there's no dispute about that the dispute here is the question about the side letter that was posted and provided to the employees by  party can't engage in conduct after signing the contract that undermines the performance of the contract if if there was something in the contract that what it said something about a side letter i would agree with that  doctrine doesn't necessarily require specific language in the contract it applies to misconduct by one of the contracting parties in performing its duties under the contract which essentially amounts to an undermining or de facto violation of the contract isn't that what this doctrine in labor law is is all about and not to this case and in that situation in my opinion and the reason i say that is because in this particular instance what's interesting is that this court is actually in a sense being asked to determine whether the side agreement whether good faith or whether technical violation of the law there is a line are brief there's a lot of the board's brief about whether or not that violates the law there's but employees and that's what we were trying to do at the time well but the board found that it went beyond that that it actually miscast the situation in the light most favorable to the company and sort of made the union the bad actor here in temp to influence the outcome of the yet to be conducted election let me let me give a context to this that it's in our brief but probably not as thorough as it could be and that is didn't violate the law there argued that it did we both have cases to support that which is not unusual at the end of my b because the people people change over time the long story short that shouldn't be in front of you that should be in front of an  well the way i read the record the parties stipulated to submit the administrative record to the judge and then the judge made a determination in lieu of a live witness evidence here earring but i'm not sure that a distinction that makes any difference and then the a l j made a specific finding that this did constitute a breach and the board upheld that to terminations so why don't we just review this as we normally would any order just put the facts and ultimately a resolution was reached by that we're now at this level and after the two to one board decision it's now obvious that to you that i hear what you're saying i mean what and don't don't you agree that we apply the normal standard of review as we would any partition for review of a board decision and in general yes whether there is truly a reason here to for deference i think can be argued over in the sense that the n l r b goes too far they lose the deference back and let me let me see if i can check out all of this a clarifier confuse everybody but with respect to the setting aside of the settlement agreement you agree that the board is entitle to deference on that issue right because the board misinterpreting its own precedent i agree that there deserving of deference to that degree yes but i think you have a different understanding with respect to the default issue is that right that's correct and if you read for example i know this is our brief but it's short but if you read what the dissent says in the case before the lord be they say the board has never held a side letter warned century about a fault judgment which precludes responded from raising any defense and said how can we interpret noncompliance differently for purposes of the set aside issue then with respect to the default issue if there's been noncompliance then why doesn't the default provision kick in the default provision kicks in on things that are in the settlement agreement and there's been noncompliance with the terms of that agreement why is the fall improper well when we say it's been violated we have a board for ruling that says it's been violated that we have a dissent and we have an argument that hasn't been violated you can't violate something that wasn't there and that becomes the issue and i realize but judge thomas talking about but the bottom line is that it wasn't in the settlement agreement it wasn't discussed in the settlement agreement it wasn't waived in the settlement agreement as far as cooper was concerned they were agreeing to settle the underlying charges that existed at that time it's ok for a company put up a site better there's no question about that and you think that that would constitute a breach of the i don't agreement that i would agree that that would be something that we would never have done so i hope not we're better than that honestly i can really tell you that but ultimately that's not what th looked like it was simply a here's why this happened in alice's and that does fit right within a it see which gives you the right to talk to your employees and one of the parts are really bothered me the most in this case is the whole arby's position on that which to argue that we don't have that right despite the that the law being what it is and what they say and i have this if i can find it very quickly if they say that this the company quote unquote knowingly anybody he's saying things that are true and that's what the we normally see in these that type of a case where it in any event if we look at the side letter ourselves and we come to the conclusion that the side letter blames the it says the company has not been found guilty of any allegations believes it's not violating any laws nonetheless posting the letters that it doesn't seem like it remedial notice on employee if you look at the cases between the two of us that we've put out there you can find almost any case that says almost anything about this far that goes so therefore event we ought to give deference to the n l r b is something great yes although they shouldn't be ignoring some of their own precedent and i think there is a piece of that here but if you let me just let me be pragmatic for a minute which is if you really look at that side letter it doesn't say anything that's not true and it doesn't say it in a way that says we disagree with this set of what we settled that it's says that and then the reason why it was settled that time was to try settlement agreement is that a common provision in an agreement or is it on you it's a it's a really interesting question and i think i can answer in one minute that a fall didn't exist for the longest time it was then put  be the end of rb now in two thousand and seventeen stepped back from that and said that that will no longer the default that they're not using a logger to make a long story short but your client agreed to it and this case i mean it it sounds harsh but you know you agree to it and you have to accept the consequences we greed to it except for the fact that we didn't realize that there was anything in there about a side letter at the time and i understand what you're saying but ultimately they did everything the settlement specifically said they had to do this idea that you have to infer that this that that the settlement included things there are in the settlement is where i struggle with the whole situation i think we have the argument counsel thank you will hear from  good morning honor's barbershop he with the national labor relations board i don't have a lot to add it sounds like the court is fully under study issues but one thing i do want to clarify because there were a number of times what was said i think the coroner stands at but i want to be very clear the board in this case  did not find that the issuance of the side letter it's postin both physically and over e mail that is not an independent violation of the act that is and they were not the union to be clear the union did file a charge in the summer after the notice posted in alleging that that was a violation of the act the region dismissed did not find merit in that charge and the union with drew with the consent of the regional director there is no finding in this case or prior that  found that you didn't comply with what you say you didn't do what you said you were going to do so then let's look and see what you we agreed to if you didn't comply they looked at the settlement agreement the read the general counsel then exercised his authority to say listen one of the things you agreed to was the possibility that we would seek default judgment that's what we're doing default and not only a default judgment but that you will have no defense on the eighty ones that were the subject of the settlement agreement and so those are the violations that are in the order in this case it's the original eight ones the threatening to the employees and the workplace violations it's those violations that were that are now subject to the board's order in this case only because the settlement agreement having been breached permitted the general counsel to reinstate those i lay sions stripped that a defendant and the employer agreed not to waive at defense is to those allegations and that they would then be and then that that's the end of the story so that's why that's where we're at there is no finding that the side letter violated the law the employer is absolute correct eight c of the act would entitle the employer to issue this kind of communication i will the board didn't find that it's unlawful guess what the board found was eight seed not withstanding this is an unfair labor practice what we're looking at your communication for is to determine whether that communication posted ten days before the agreed entitled to significant deference on that issue interpret in its own precedent but with respect to the default issue as i understand it there is no board president specifically applying a provision like that is that correct that's that's correct there isn't a case where and it is absolutely correct that the general counsel under general counsel solomon issue to members of the general counsel sets the prosecution priorities of the agency at any given time so that's that's not an issue of giving deference to the board applying its own precedent as a no but it's applying it but it's reading the settlement agreement itself so the default it's not that the default is a new thing it's that i mean default judgments issued by the board all the time for various reasons this is the first time yes that you've had a breach of a settlement agreement that on top of that included default language employer counsel's right it wasn't standard for board of settlement agreements to have default language in them so the fact that there isn't a case where the board is interpreted in the settlement agreement to determine whether noncompliance will have the default language kick in is begs the question more than it stands for the proposition that this is incredibly unusual it doesn't exist because there were a lot of these so moment agreements and the board  withdrawn the general counsel has now withdrawn that recommendation so we don't see a lot of settlement agreements now there's the regions are still untitled to seek default judgment in an agreement on a settlement agreement but it's no longer sort of the general practice i guess you could say of the general counsel the fall issue turns on the phrase noncompliance with any of the terms of the settlement agreement and it seems to me that under the ordinary meaning of these words it refers to instances where there was a breach of expressed terms of the agreement are you arguing that it's some kind of term of art that looks back to the board present and which agreements have been set aside on the basis of side  letters i don't know if i don't know that the board would use the phrase term of art but i don't know that that's i don't know that that's different than how i would answer the question which is yes yes i think that in this case what the board did was they looked at the if the agreement as a whole any agreement repeatedly references the side notice that were inside the board notice that will get posted and so that to then engage in an activity where i put up the notice that we've all agreed and the region has drafted and you know it's a standard standard notice i've agreed to put that up but then to turn around and post something else that completely detracts from that doesn't violate the term that requires me to post the notice of the posting of the side letter is more akin to a breach of the duty of good faith and fair dealing that seems to me something different than the expressed terms of the agreement and i don't know that the board the board certainly looks to the good faith and fair dealing as support for its position i don't know i don't read the board's decision as resting uniquely or even predominantly on good faith and fair dealing they only refer to that in a footnote the board decision itself refers more expressly to or more frequently to an express breach of a term orat express violation of the top of the terms of the agreement so i don't know i don't think the board is falling back on that uniquely i think the board is saying more definitively this agreement required you to post a notice when you signed that agreement we are telling you you had an obligation to understand the law as it stood on notices and what you've done is you've turned a blind eye to that law and you have in effect what you've done is effectively not posted the notice by posting the site notice the border saying you have detracted sufficiently enough from the actual notice that you agreed to suppost such that you didn't it was as if you didn't post in any event so it's not so and then i think like i said in the footnote i think the board says in  any event let's not forget that the parties can enter into an agreement and then deliberately engage in conduct that undermines that agreement but i don't think the board i don't think a fair reading of the decision is that the board as you've heard uniquely on that company of good faith and fair dealing i think they're relying on the terms  hundred eighty and three two other cases have been around for about the same amount of time arrows specialities and news texan both of which let the employer now this kind of side letter where you blame the union where you gloss over your other remedies where you distribute it well in advance this one was done ten days in advance so you've influence the employees so it's not that the board is requiring that the employer understand all aspects of labor law what they're requiring is that you understand what your obligation is to post a notice and that obligation is a meaningful notice and the board found that given the case law for the past forty years of some of that half century that you have that you didn't live up to your end of the bargain which was to post a notice and nothing else that detracts from that notice yes and just a couple of pieces to respond to the statement you didn't do what you said you would do that isn't an accurate statement what the company did was respond there were five or six requirements dealing but the reality is that it was never discussed it was never laid out we were never told not to do that if you look at the law it says you can provide a side letter there's no prohibition on that there's prohibitions what can go in site letter that effectively what we're being accused of his violate the agreement by putting up a side letter that was never discussed and never part of the settlement agreement that's the struggle in this case the company did in good faith there's been no allegation otherwise understood that there is one day this thing will be solved this whole petition is the longest one i've ever seen since two thousand and ten you would think we'd have a vote by now but the reality is it's been difficult because of this particular situation so we'll see where it goes but the reality is that we were obliged to post a notice we weren't set anything else tend to go back to the flawed agreement for just a very quick couple seconds and at that particular time it was very difficult to get a settlement agreement from the analog b without agreeing to the default agreement that's not changed and for very good reasons because i think they keep settlements from happening and i'm delighted as an employment lawyer that it has changed but at the time if you were going to get this sort of thing that went and settled you played the game and that's what you had to do so thank you