court the issue in this case is actually sort of a routine one when you look at how employers operate this is a situation where an employer in the course of bargaining gets them increases to some employees particular increase now or in any of them well mr arkell says increase clearly was discussed at the bargaining table not the actual increase he got but whether or not he should get an increase in when he moved into a new position so the topic was definitely in an actual notice given by the employer to the union we certainly agree with the administrative law judge that under the facts of this case the union had constructive knowledge and if not constructive knowledge certainly did not exercis findings here findings of fact with respect to action to constructive notice and what sort of the board and and we believe in that respect the board erred your honor the evidence was clear in this case you want me to reevaluate evidence and decide which one of the two is correct we believe that the court's obligation is to look and make sure that's just and make sure that the board's decision is supported by substantial evidence on the record as a whole and why isn't it it is is better ok that the board chose to discard the findings that the administrative law examined the findings and came to a different conclusion and there was no basis for that conclusion your honor because if you look at what the administrative law judge here he analyzed these facts closely and he made specific findings that the union in this situation a very small unit which is were discussed regularly in lunch meetings and other meetings they were discussed at the table i  just went through the facts with you as i understood them and you agreed with me that there was no direct communication to the union by the employer of either pay raises or reclassification i agreed that the employer did not official he was not an official that's the point i'm getting at he was shop steward he was there at eleven of the twelve bargaining sessions and i think you're hanging your hat partially on saturday isn't that correct we do we did saturday ever turn around and tell anybody in the union as far as you can tell what was going on well we don't know because mr finnerty was not killed as a witness and that's baffles me why is finnerty not called by a witness is somebody i mean he seems to be the key player in the case and nobody wants him anywhere near the fact these promotions were obvious promotions these people moved into new positions they were new in doing new you're not you're arguing facts to us you know they were obvious it's not for us to conclude they were obvious and we're looking at whether there was substantial evidence supporting the board finalization absolutely your honor in the substantial evidence in my view is not there because of the facts that i am pointing out the facts that the board did not give sufficient consideration to and indeed chose to reject moreover the union representative was there regularly having lunch with these guys talking about the wage issues that's all undisputed if the this union did not know about the promotions and raises they did not exercise due diligence as  they do and they really do not add one point the board does acknowledge though we take for it we will assume for purposes of argument or figured it was a representative of the union for purposes of this proceeding they do make that finding the sanction assumption the one of the issue and i'm very short on time here that i think is critical is the causation issue here i do believe the points decision is very weak there when it where the board concludes that somehow these unfair labor practices caused disaffection from the union these were simply raises attached to promotions eased events were very close in time where the you know with the withdrawal of regulation and so on your definition of close some were eight ten months in advance of the withdrawal recognition and the last one was about a month before they were over the course of a year but the cause ation issue i think is a critical one here because i don't think that cause a link has been found by the board these were routine somehow ineffective or what did cause people under decided they didn't want to my belief based on the record is that the union bargain for a year and wasn't able to achieve a contract i didn't act on that diligently the last couple months there weren't even  meetings they took the holidays off nothing was happening that's clearly the reason i'm basically i'm conjecturing on that but i believe that to be the reason i should be serve my remaining time  case what what why is it significant to you that the board make formally terminations on these remaining issues i'll take the two adverbs as you use them yes the essentially prevailed and yes i'm not going to the essence if you want to walk in to morrow and repeal all of those wage increases you have the authority to do it right it's not clear because the board's orders way i read the order if you read the order that way i'm satisfied going to exercise that option well what the union has to do when it gets back to buying people is look at the status of everyone's wages and see if people are out of line i mean this is where the old school schoolhouse problem of the teacher's pet and if when we look at all the wages as they are at the time we sit on the table and someone is on the line with more than what's fair to everyone else may say we send it but we can't make that judgment until we've got all the information which is why the board order doesn't say automatically res employees to can't put food on the table if you exercise the option that's your problem you don't want to do that we wouldn't normally use don't do that i tried it's unusual you want somebody else to do it for you no no no no no that's not no we just want to be able to down the bargain cable and say what are you currently paying everybody let's compare people and if somebody is more than somebody fairly put in we take that person getting what i want you to increase the others or potentially reduce that person because he's because why why come all the way up here when they are first line of for search for a remedy would have been with the board they would guess what you know look what you did when i was sure what this means well because there is a what's called a ten the argument argued to this court that we didn't raise that issue before the board but we have to actively raise the issue because we took the position that those wage increases one lawful and they declined to find them unlawful so your honour's honors periodically counseling me ask you a question there or clearly the order requires that they enter into collective bargaining again is that right that's correct all londis that have to go on six months and the year so if the union exercised their rights they have under the order to require pay reductions and classification  changes that clearly might trigger a request for the certification by the employees and if they went to the board and said we want to war abort conduct election when that happened w arguments why there was no this is the problem with all of them is that they're not supported by any even in the case of only ever they did  board resolve some of these other issues what's the board's response that no one wants responses but there is no showing that it was the getting one other question which doesn't deal with that issue in the case but it just struck me that the timeline here is quite remarkable lee's these events really go back to one thousand nine hundred eight and the withdrawal of recognition by the mildly not something you can be proud of i mean something that you can it's disgraceful for years well even the ninth circuit affirmative bargaining order here i think there were your honor for mentions a five year passage of time four and a half your passage of time between the l g s decision and the and the boys decision the actual withdrawal recognition here was february  ninety nine the cases cited by the board in support of their argument that there should be an affirmative bargaining order that in the order that would require bargaining for a reasonable period of time six months to a year they all involve cases where the board decided the issue within a year around a year that kind of timeframe here we have a situation where the board is saying the employer and these employees should be saddled with the bargaining legation approximately by the time it would start it would be early two thousand and seven at least that would be what eight years after the employer withdrew recognition from the union of circumstances changed to make it  ridiculous well you know and i think the mere the passage of time alone would in my view not if everything is still the same well but here we have a situation these employees at this point in time we have no indication whatsoever that there would still be support for the union there's an argument by the board that these unfair practices let me want to bring impact so what do you want to do my argument would be that with respect to the affirmative bargaining order there should be a normal remedial which is an add on which is an additional component of the order problem i have with your your argument that the union had constructive notice is in the l j as to the discussion of finnerty i mean he's just this inference that relying on a series of board cases that in a small stop like this where he's precise i was present regularly in contact with the employees these were open increases these were for motions they were not something hidden o assertion that these unfair labor practices caused the disaffection from the union i think that causal link is missing and to the extent that there was any question about that i should note that at the hearing the employer offered to put forward the five individuals who got the wage increases so there would be testimony as to whether those increases influenced them in any way the judge refused that however the employer made an offer of proof that those individuals would have testified that in fact those wage increases had no influence on their opinions regarding the union so it to the extent that there is this assumption that these wage increases caused disaffection from the union it's focused on these five people and the employer did to determine employee settlement is a board conducted election it would have then under these circumstances a board conduct election if that had if the employer sought it in the majority of the employees petition the board for an election is that per se granted you don't even need a majority you need thirty percent to thirty percent whatever that whatever the figure is that automatic only if it's filed without with no context of a plan for labor practices it's automatic and  election no opposition is that where employees select a union to avoid conduct election and the brought his repeatedly and currently takes the position that the appropriate way to determine whether employees want the union or of the petition drawn that the board could not allow the employee withdrawal recognition in the absence of a board concocted section nine election when employees could really state their preference in eight in this laboratory condition thank  your time is expired the case just argued will be submitted for decision the court will adjourn until ten o'clock