of the boards a word of negotiation expenses in the hundred line kates for two reasons first the boards a word of negotiating expenses are not supported by substantial evidence based upon a review of the record as a whole separate the board's application of one similar case in terms of precedent for its award of negotiating spends it was arbitrary and capricious given how entirely in office it the key cited unbelievable was the board's award of negotiating expenses in this case alternatively the hospital respectfully request that the board's a work of negotiating expenses he remained it for two reasons first so that the organ explain the award of negotiating expenses under a set of facts so entirely different from the facts present and of the board's response is that the expert remedy for expenses has to do with past expenses money that the union spent necessarily because of your client's actions and negotiating expenses is two pronged first that the union must be made whole and secondly that the board must restore the status quo ante that exists at the bargaining table between the parties given the chance of that time i would don't see why you where it says that the purpose is to ensure they're able to do things better in the future what their position is you could destroy the union and that would be ok because we're not you know we're we're not going to have employees anymore anyway least half of its goal perhaps more perhaps less the board isn't entirely clear in its decision but part of its consideration is the idea that parties must be returned to equal footing from prospect of bargaining sessions if they're going to restore the status where it was a say that stated there's no explanation for why they would need to restore the status quo at the bargaining table if they want if the board hadn't been contemplated for going negotiations going forward is that the union the union  represents their employees and of our workplaces i mean it's a good general just saying you know the union should be made whole so we can go on and do the work that it is statutorily protected and doing which include was the fact that they wanted to make a hole then i wouldn't have filed my client to file the motion or reading and however the board's justification is not simply a make or remedy that also includes this language regarding the status quo at the bargaining table which if the if the board doesn't wish for that to apply to all employers that the union might deal with or simply the one employer in here in the case of bar that is not clear from the court's decision and that's why i'm a marine and would be a pro i'd like to turn now to the reasons why this court should do nine foresman of the board's award of negotiation expenses the board of relies on on three factors in the underlying case for its finding of unusually aggravated misconduct but the record would reflect that none of the three factors relied upon by the board rises to the level of on usually aggravated misconduct the submission of the hospital's proposed third the requirement that the hospital placed on the union that its image its proposal before the hospital before the union would work i'm sorry before the hospital would respond to those proposals was one meeting good feet where the union had submitted roughly ninety percent of its proposals in the first bargaining session furthermore substantial evidence of good faith is  exists in the record below where it shows that the hospital did provide information so that the union could complete its bargaining proposals and true to its word the hospital did exchange proposals with the union right does not hold that it's in good faith it's my client's representation that it's evidence of good faith ignored by the board in finding some legal really are challenging not only the remedy but the underlying finding even though you're not appealing that i'm not saying is that you can't get to an usually aggravated misconduct in cases where even if the overall conclusion was bad faith by the poor there is still evidence of good faith which cuts against a finding of unusually aggravated conduct so that would be helpful if you would focus on responded to the union's request for information when to do that throughout the bargaining between the parties there are eleven bargaining sessions helped throughout two thousand and twelve and twenty thirteen and i believe that the record indicates that throughout that process from the very from the very first session the hospital responded to requests for information from the me and that's not my reading of the record where what can you point to anything specific that shows a prompt  information that was either needed by the union to prepare its proposals or requested by the union as part of misrepresentation needs i believe that the administrative law judge just decision in that case indicates  at least in part on june twenty fifth twelve days later by the hospital and then another page you're looking at are you among the laws decision ph thanks i think your pages are the same as mine paragraph number it's under heading be bargaining meetings in progress and the first paragraph just after footnote eight some of the information that's correct and then to now we have and we're doing this on a case by case basis now we'll have another case in which if you're you know employers will know that if they repeatedly have refused to engage in bargaining together in one reason i was asking you about what would you point to that's evidence of good faith is you go through this and it just it's hard to identify any affirmative engagement by the hospital you know they have a problem and instead of saying you know we're going to have to work out these what is it called an a v o you know how that interacts with what we're doing and uses you talk about that and instead of sitting here and saying look we need to make sure that this is covered by or we need to make sure that the employees know that our you know form is never optional and the union has to get onboard with that that's what they did that are many walks out and you know in situations where providing information each time you point me to something that's like well they provided some you know they held out on information that the union thought was important they walked out of meetings there's a management person recently over to management person in the room and some saying can we have her leave so we can proceed because now what's usual unusual than the board which sees hundreds and hundreds and hundreds of these cases every day as compared to the court which doesn't so don't we have to defer to their view unless their view itself is ar their view itself is arbitrary and capricious in as much as they cite you only unbelievable for the proposition that in order to negotiating your expenses is appropriate and the courts have previously found that when an agency does that relies on in opposite case law as the s basis upon which to rest their decision that decision is rendered arbitrary and capricious so to the extent the board wants to extend what was supposed to be a limited remedy for extraordinary circumstances to cases with much more ordinary circumstances like the which were mitigation one is that the parties had a pre agreement and the of the or the hospital believe that this is going to go to an arbitrator right in looking in your answering brief on the question of remedies you don't mention either of those well believe that we are myths as we're not challenging the underlying finding of a violation of the law and we're just challenging the characterization of that violation as one usually aggravated misconduct we did not focus our appeal on the question of the existence of the labor relations agreement however it is implicated by the courts finding unusually operating misconduct in as much as i understand that but you complain that the board failed to answering brief which is the response to the to the exception of acting remedies and under section twenty of the national labor relations act we can't even consider an argument that you didn't put before the board but you certainly can't complain that the board  evidence of that v liberal ations agreement was it was an event to an attempt was made to introduce that before administrative law judge laws and she accepted i believe some of the evidence but not all of it i do believe that that was raised  me as to why the award of negotiating costs would be improper and yet you are complaining that the board didn't take those things into consideration in deciding that seems a little unfair and perhaps outside our door stiction because you did make the argument to the board in the first place i would argue that we did make the argument to the board and i understand it was in the merit section but really our concern at this point with regard to the labor relations agreement is is narrowed to a very particular point which is the board takes a contrary and contradictory view of the existence of the labor relations agreement in its decision and that's really neat to to the extent that arguments concerning the award negotiating it expenses it's because it was it was used by the board when it was convenient and as much as he said no there was a create this ng agreement and that's why the provision of proposals early on in negotiations you don't rise to the level of you know good faith and they don't do anything to undercut the finding of on usually aggravated misconduct but then for the rest of the board's decision they you know refute the idea that the labor relations agreement existed so that's really the limited capacity in which i believe that we would be at this point raising a question about the existence of the labor relations agreement today our focus again is on denial of enforcement because of the board's unsupported finding and because of the fact that the standard set by unbelievable not only is not met here but this case falls so for below that it is a substantial departure from the board's prior precedent that goes unexplained and its decision in order and for those proper and and i think it is worth pointing out judge clark here asked you know isn't it the case that this union has other members and in fact this union has other members represented by their side this union has members that it represents with this exact same employer in at least at all that looking at the refusal to provide information only looking at her fuel to bargain over terminations that that conduct rose to the level after he found the violations they move into that how are we going to remedy this all of that conduct they decided the level of unusually aggravated misconduct and said because of that we're going to put the union back in the place it was before you had them we sold their resources coming to the table for useless bargaining sessions for the seven or eight months that bargain they were not then the la won't i wanted to touch very very quickly on a pretty negotiation agreement i think it's a point well taken whether it was raising the exceptions on the merits hard or the and also in the remedial proportion of the exceptions and i think the way the board decided to treat it was it was raised and so we didn't we just went with a different approach to which was the board considered it so rather than say the argument had been made or had been preserved the board took the option of saying we think the board considered the pretty serious or you mean borders for the borders for the poor yes sorry reached by the parent company in june no actually was before the certification so it was before may that was between the parent company and the union fell over didn't even come in and sign that until june or i'm sorry until july or august and it's not on top of that isn't even a self executing document board what the judge says is that is indicia of bad faith and then she went and looked at everything else and said on the basis of this i'm finding bad faith bargaining but in and of itself i don't believe that he stands for the proposition that if you give off all other overtures of engaging in bargaining but you choose to say i'm not going to give you my proposals until you submit yours and there's nothing else going on i don't know that you could rely as an employer or unserious union on th concerned i mean what's your response to the notion that this decision exemplifies the difficulty for employers and figuring out where the line is between mere bad faith and unusual misconduct say an employer says i'm fine with being found in bad faith i don't believe in unions i don't believe in then our way and i'm just going to you know not do anything  to reach an agreement if that means you want to engage in hard bargaining if that means that you want to not put bend beyond what your positions will permit that's fine but just do it in good faith but to john's point no i do think that it is difficult for to administer the test but the within the board's expertise to determine on the totality don't strip away like they do before this court where they go point by but first they say we're not contesting the violations and then they go through and they parse each individual violation and say that's not was called in you walked out of four bargaining sessions i think there's some dispute about that but the record is pretty clear there were four they walked out on let's see if they want to have it on september twelfth without explanation they walked out on the one with the management official there were you're right which was on october eleventh they walked out on december twenty eighth after five or six minutes and then they walked out on january eighth after fifteen minutes so i guess there's some dispute as to what it whether it was a five minute me remaining time and like to just briefly address the reasons why this question tonight horsman or alternatively ring them a case of the board the board's attorney herself admits that the standard has become difficult to manage because there is no clear understanding as evidenced by the lack of explanation the board's decision for why they would depart from the standard set for the unbelievable which is a high bar for extraordinary cation cases of one usually aggravated misconduct in a case like this where there is a reason to believe that there was at least legal precedent to back up the hard bargaining approaches if you would on call them not to get by the hospital for those reasons the board has failed to up hold it administrative duty to explain its decision making and explain any departures that makes from its president rendering its decision in this case arbitrary