when you're ready you may proce findings are clearly erroneous and to the standard of political in this circuit the district court finding the district court need to make factual findings they were consistent with the underlying legal theory underlying legal theory the judge found to be substantial was that kellogg's proposals in memphis would change the definition of casual employees to be the same as regulars except as to pay in benefits employees which we do say they didn't except that that means that that is accepted then as a given in connection with the ultimate appeal to the board that's crazy and so and the reason they don't again is because that's that's the truth when you look at the master agreement itself the master agreement spells out which things should be covered at local negotiations in which things are covered by the master specifically in the document it states under one hundred one see this agreement show cover only those matters specifically included here in only those matters specifically included in this master agreement and then run on one app it says that those matters which have been covered specifically include the master will not be bargained to the local level when you look at this agreement the joint agreement the master agreement when you look at it the only reference to casuals is that page sixty seven and then it sets forth a wage differential so there is no work preservation language there is no way in which that supports the judge's finding the judges conclusion i should say that there is something being modified masterbate virtue of kellogg having master agreement i'm quoting does not define casuals the scope of their employment or provide for benefits mr buday i don't think there's any disagreement about everything you've been talking about so far the question is can the board  this theory that seems to be inconsistent with milwaukee spring that deals with this indirect effect argument that in turn is premised upon your statements that were made at the bargaining sessions so could you talk to milwaukee spring and what you're bargaining agent said which it's at least to me seems to get to the heart of this case you're walking springs it's the established law and precedent in measuring reasonable cause substantial legal theory the judge was obligated to measure that reasonable cause standard against the law and what walky spring teaches is that in order for the general counsel to establish a modification he must first identify specifically in this agreement the master agreement what provision is specifically being modified and then he must take the actual last best offer and say that it dropped and why is that it's that way because national labor policy seems to me so would i be right in assuming then your position would be that maybe they can prevail at the board level by getting the board to overturn milwaukee spring but in the meantime they can't get injunctive relief based record attend j is not issued in a public forum there is no oral argument and there is no record of it we have no idea what it is that the board considered what law was in front of it if the facts that were put in front of him in the statements are is contained in the brief which is  straightforward as this general counsel states in its brief the general counsel says kellogg's prepares those modified the terms of the master it can't do that ok i don't know if that's all they were told i don't know when springs your honor just to back up a little bit if you look in your read that case you'll see that the general counsel tried this legal theory out in the seventies the board agreed with the general counsel in a couple cases one in the seventh circuit university of chicago one of the ninth circuit the boeing corporation in both cases the circuit courts would not defer to the burden mills and they said just don't make sense it doesn't make sense because what you're asking the board to do in the bargain about casuals too much because they concede that casuals are a topic for local negotiations as they must the proposal here is to essentially eliminate regular employees  it's not a case of just a little bit it's a lot and again i would go back to the judge's findings that were not accepted to and answer it this way that cola amount directly to a contract provision that says we can't hire too many casual employees finding by my understanding of what what the company wanted was to be able to lay off regulars and replace them with casuals and so thereby eliminating all of the terms that would apply to regular employees so that it gives a red herring for a couple of reasons first they can't tell i can't do that kellogg can't do that under the master agreement it can't do that under its proposed changes to the supplemental agreement the testimony of lisi i v which are an undercurrent and contradicted made that clear where the hell are proposed the changes and temporary layoffs versus permanent layoffs and temporary layoffs in the record or two weeks or less the regular employee could come back in addition to that your honor in the actual offer itself in the last best offer which is joining exhibit five the employer made it crystal clear that that was not its int during the course of bargaining the cup the came across the table hey are we going to replace all regulars and kellogg's said absolutely not are you going to change the terms of say in the last best offer that you read to say they can't say that they're not doing that is although this is on page two although kellogg would have additional management rights to hire new casual employees under its pulls all those proposals the company could not exercise these rights if that decision would cause the layoff of a current not casual unit employee in the plant today and then actually prepares is the words the way it works and i guess in the industry you could you could lay somebody off if you didn't need their services but you can't lay them off if your intention is to bring back somebody part time or casual or whatever you might call it to replace some that it in that there's a distinction here a temporary layoff for example the few cleanings of their lines and so language shut down for a week or two and people get laid misrepresentation here on the record is the behind these proposals your honor what was said at the table is the idea of the savings came from kellogg growing in the memphis plant the memphis plant who just lost two lines because their costs were up  that but not layoff any not no add to the plant no the all the savings on the slide and if you get the exhibit number your honor you can see it they depicted it and talked about it to the she tell their side in the again testimony the hearing was clear and that the idea was to build the plant back up and so when the union said hey we're concerned about losing jobs we said no that's not the idea here and we can't in the permanent layoff the permanent layoff language i would the is is important here and that best offer change anything about what would happen in the vent there was a way off permanently oh no do regular employees lose any rights in the event there is a permanent layoff no so would it be right to say they didn't change a thing they're right to say then assuming in memphis they went to the union then said we have zero we'd like to have at least thirty percent they said now we'd like to expand that in hire more of them in order to make that happen while the cap order gone no that's one change you work preservation language and that's the only place you find it in the supplemental you look at the other supplementals your honor in omaha they have a twenty percent cap in lancaster one nine hundred eighty when it first came up this idea of casual as it came up at the local level in lancaster didn't have a cap at all and then with a thirty percent cap that's what the union wanted and then what the forty percent bargain at a local level so the idea of how this work is allocated between bargaining unit people have always been  negotiated locally and the same another another point on that is is it's not just work between regulars and not regulars your honor will to shift between class occasions of people that are regulars in all of that bugging is done of the local level one of the statements made by the different line of questions just for a second because i like to hear from the l l b on this as well one thing that is troublesome about this sort of from a timing standpoint is you the you can't solve this at the local level see a lock them up they're locked out for nine months as i understand it better than the judge put them back to work and that's that's today's situation i assume right now we're told that the master agreement which they say controls all of this is up for bargaining and in october so it is a practical matter and it is troublesome the idea they're working they're not working now they're back to work and then i guess what you want us to do is to say you can you can boot him out again for just for what a short period time until you resolve that through bargaining on the national contract your honor we have no intention of putting those people out of work again what we want to do is you want clarity in this issue think of the debate we just had budgeting is not supposed to require five lawyers and sixteen different interpretations national labor policy is table and bargaining over mandatory topics of bargaining the local local burger king is where this unit is it's where all mandatory topics most  circuit's legal standard requires two things it requires that there be reasonable cause and proper and just improper and there is there is neither and there's no reason what cause because there's no substantial legal theory i think as evidenced by the general counsel's own brief i mean what's the legal theory where is the case think the the has this court ever to know i had an injunction under similar circumstances i believe so i believe this court is found not to be reasonable cause and maybe one case i can't remember all in one case in toto and then my question is were the circumstances similar and do you remember the name of the case i don't think they are similar in the fact of the fact that this factor in very unusual i mean i agree with that it's unusual factor but but again because it's unusual for the general counsel not to be coming come in here and say here's a legal theory here's the case what is the case that you think they have to look back   to know what your intentions are visa v the october bargaining and the decision of the board on the underlying appeal your honor is that possible yes that was a tried one of the things that the order also imposes on kellog is a restriction on bargaining over this topic to some degree i don't quite understand the judges of the court's order and secondly th employees back to work in implementing our final offer is certainly acceptable to kellogg but that's that's not going to be acceptable to the side i'm sure i don't think so your honor great where the you put the people that were locked out back to work is there an issue of back pay was back pay pater's that up in the air that that is up in the air your honor that will be decided over the to the press that that's another reason why even though bargaining began in memphis this case is about kellogg trying to lower its labor costs by converting its memphis workforce into casual employees now  a why don't we take whatever their final best offer was a face value their final best offer said that kellogg had the right to hire as many casuals as it wanted to on an indefinite basis and those casuals could do any work any bargaining unit work in the plant or set up shop are there is there anything that violates federal labor law to know to the extent that and if i may say what the best offer also said is that kellogg was not restricted from hiring casuals to replace laid off regular employees now to the extent that that proposal as i read it and come bind with kellogg's statements at the table that it intended to hire only casual employees and ultimately employed only casual put employees in memphis the sooner the regular employees status he says the contract prohibits them from putting somebody on permanent layoff if they're going to replace them with a carriage will employ those the contract prohibit them from doing heloc admitting it at the bargaining table of that under it's under its proposal in meant as it could lay off regular employees and recall them as casuals it's proposal also stated that it could lay off regular employees and they could be replaced by casuals now we you know the district court had the kellogg's bargaining statements at the table and it had its proposals and these were the proposals for the renegotiation of the memphis guess your honor it was for the month a supplemental agreement and so the real question for us is whether the main agreement governs and whether this is something that is not a mandatory bargaining issue for the local agreement is that right yes your honor so what do you think in the main agreement prevents this from being a mandatory bargaining issue in the local agreement the master agreement governs wages and benefits the fact of kellogg's proposals in memphis would be that the master agreement wages and benefits would simply not apply to the memphis workforce but it's not quite that simple what what the walkies brings is you've got a point to a specific provision in this agreement that would be violated and you haven't cited one anywhere in your briefs that i can find so just tell me what provision i should look at the wage and benefit provisions what is it which was it well i believe it's the wage appendix attached to the to the master agreement and if i'm right of the whole it's minute the only thing i could find in the agreement was a provision that says casuals gets six dollars less doesn't say what the wages are so the wages know what your opponent says  those wages are set at the local level use you say they're in an appendix while the master agreement sets the wages for for regular employees and the memphis supplemental copping to it we know they are the same we were do i find in the master agreement that it sets the wages your honor i believe there is a way to japan it's that that lists the cola that lists a progressive wage schedule and that exact schedule is copied into the memphis supplemental you know what page that is by two  hire progression etc and that is copied into the memphis supplemental but i'd like to get back to if i may what the district court found and what this court must decide which is was it clear error for the benefits and the benefits that the master agreement guarantees to employers which would not which would no longer apply to the memphis workforce because there would be no regular employees employed there that is the problem  kellogg's has framed its proposals in memphis from the very beginning as only being about casuals they only want to employ casuals the problem is is there any allocation of work provision in this agreement in the master  is if there isn't an allocation of work provision which is which is something that exists in the labor field right right yes so if there isn't one even if you're right that eventually regulars go away and they're industrial peace demands this when parties enter into a contract i'm an employee at this memphis plan i'm a regular employee my being terminated is subject to the terms of these various agreements right and that's not for that's for cause it's not at will employment so something has to happen for me to lose the benefits of this wage appendix here now what he says is is that i can't be laid off permanently in in replaced by a casual is that true or is that untrue under the agreement proposal we're not asking under colors proposal under the existing the what you say is the existing situation is being changed in violation of labor law so can i go that a complete can i be laid off and replaced by a casual under the current agreement as i understand it if you are a regular employee in memphis you can be laid off for business reasons and not replaced by a casual that was a change wanted to be able to do that so currently if you are a regular employee in memphis and you're laid off for business reasons memphis i'm sorry telarc cannot use casual employees and tell those laid off regular employees have been recall ok wanted to change that that's true under the sipe with article unless their last best offer says that's what they're going to do in violation of the agreement then there's nothing to be it's the proposal that cause you're not yours but the employee if the proposal because the union to walk out and refused to bargain didn't violate this provision about a regular employee can't be laid off so that a casual can it wanted to be able to lay off its employees and replace you know replace them as with casuals or make them casuals the only place that would prohibit that would be the master agreement while the master agreement would be could go back to that is i think my hockey spring is distinguishable frankly hockey spring first of all was a partial relocation and relocations have a whole host of different issues involved with them but putting that aside what the board said in milwaukee spring less that the relocation decision and the relocation of a few of the employers departments did not change the remaining employees wages so there wasn't a modification of the contract with respect to then why isn't that true here because here under kellogg's proposals that would give it the right to employ all casual employees in memphis regular employees those employees in memphis their wages and benefits would most certainly change knew they would be runs or the old both but how what how does a change for the old because because currently employed employ and regular employees in memphis could be laid off under kellogg's proposal and i then replaced or converted to a casual employee it's their proposal say that and kellogg's bargaining agent at the table said that numerous times to the to the union so it kieffer feature really is the fact that under your understanding of the catalog proposal someone who is a regular employee at memphis could be in fact it's proposal affirmatively gave it the right to do that so where do we find this affirmative right to do that in the record what should we look at to verify what you just said i think i think kal trying to make the director's theory perhaps more complicated than it is i'm asking you well where do i look for the support for what you just said in the record well again i think the crux of the directors theory is that proposals violate the master agreements wage and benefit guarantees because they would be void and would be nullified i have to assume that if you won't answer my question where it is in the record that you must be conceding that it's not in the record well the master agreement and certainly in the manager the master agreement on the record yes ok so then we're back to the wage appendix yes of course the wages and benefits guaranteed by the master agreement would not apply in memphis that is the crux of calyx proposal could kelo it may be a way of getting at this is could kellogg the memphis agreement as it currently what's to stop them right where does the slippery slope that's that's an interesting question you know where between thirty and one hundred percent is the line frankly i don't know because you're saying it can't be one hundred percent regular employees and if there are no regular employees there's nobody to apply this wage appendix on page sixty six and where on of is that mean that the only time then if they were to do this that it would violate the master agreement as when they got to one hundred percent of there are no regular employees i don't believe that that's the only time i'm saying what other to what other well we don't have that case and that's really for the board to decide and i think that's the whole point of the injunction here is the district court found that the director theory was substantial and non frivolous and found that an injunction was just improper to protect the board to protect the board's ability to decide this case the only way that your theory is substantial is if you ignore milwaukee spray well i except for your distinction that milwaukee springs was shifting work to another play and instead of reallocating work among employees that an existing put well your honor that's it and well i don't i don't believe that that's true i mean in our in our brief we cite numerous eighty modification cases include for instance a case called cns industries from back in one thousand sixty six where the board found that an employer's wage incentive system modif the contract wage provision now there was no in that in that contract there was no wage incentive provision but the proposal that the employer was trying to  to offer would have changed the contractual wages in these cases the board looks at what the proposals are actually going to do not just what's written on the top of them whether casual is slapped on there or not the board looks up what are the proposals going to do and realistically how is the party's contract going to be modified and here the district court would would or does that under milwaukee d is is a section of the acts that lays out the parties obligations to bargain and when we talk about section eight the modification cases were simply saying we're talking about cases where parties have a contract that they're entitled to rely on and one party usually it's an employer is trying to force the other party to change a provision in the contract so eighteen modification cases that sort of shorthand for those kinds of cases was milwaukee springs and he did the board did the well it was a relocation case but the board did look at there was an argument in that case yes that the relocation somehow changed the parties contract and again in that case the board found that the in the first sections midterm modifications of contracts under section eight d correct are part of yes and then they go on to say you got to look at the group that the agreement right exactly and you have to identify a think that's sort of what i got from your last well certainly the board always looks at what what the proposals themselves what's written down on paper and what's said at the bargaining table what did the what did the proposals mean what did the parties mean by their written proposals that's that the board always looks at those that evidence if it's available and here certainly the evidence shows that kellogg intended to replace its entire workforce in months and the district court so found is that what the a o j has has ruled the other way the case is now pending in front of the board so we can hypothesize two different tracks if the board were to rule next week they uphold the a l j or overturn it the injunction is gone at that though the whole purpose of the ten j injunction is to preserve the status quo pending resolution by the board exactly however the board decides  you accept and well i don't i don't think that the proposals did modify the one casual provision in the master agreement because alex proposals weren't really about casual employees i mean that one what was your appeal to the board based on well we appealed to the board based on the fact that we we believe again it was it was what we argued in this case that that kellogg's proposals would change the wage and benefits of the regular employees as they are governed by the master agreement now we believe that that was a substantial theory not frivolous theory as did the district court will wait and see what the board what the board says you claiming any obligation on the part of killer to hire if they hire new employees to hire them in the regular employee sta clearly i don't i mean the board doesn't doesn't evaluate whether you should hire say that these proposals regular employees that can happen either in connection with the people who are currently regular employees we could happen in connection with who with future hires that so are you say that these proposals violate some rights under the master agreement with respect if future hires well should to the extent that all future hires in memphis would be casual let's assume that every single one of from here on out  well it does in the sense that there would no longer be a regular employee classification in memphis and so the wages and benefits that the parties negotiated in the master agreement don't apply to that home work force and that contract is no what it does is it applies to all the current regular employees if alagna are to hire a few casuals now why would i want to take this to the extreme to try to make your understand and make your point  sume you have to set these regular employees and every single new employee they hire for whatever reason as a casual employ i mean i don't know if you're talking back to it replacing the entire workforce so it's one for one that's about it i and who is a gradual change obviously in terms of proportions but the new and current employees could be casual now if kalmucks proposal hadn't had the and current partner in there would it be unlawful we would we would have a different case and i don't know the answer to that in march and lastly as i think it's less because dramatically differing views as to what kellogg's says they will and won't do well the district court's order orders the parties to not force orders  not force the union to bargain over non mandatory subjects of bargaining so if they want to bargain over casual employees and we are to raise the cap you know do we make it thirty five percent you know that presumably would be a local some checked so you say your understanding is they can talk they just can't force them exactly exactly that's what i want absolute orders often in cases like this are really prepared by the course his contract is coming up but the the no time limit on the board acting is kind of a cause of concern in a lot of these cases and not that this has any bearing on anything but as long as this injunction is in place the board really isn't incentivized to do anything if they have other matters on their plate because they've got the really that they're really looking for well i  would disagree in the sense that injunction cases are priority cases for the board you're right that the board has a lot on its plate certainly lately with the no canning decision etc but this case has a time j case by definition is a priority for the board so while i can't predict when a board order would issue you know i have every confidence that that they are treating it with priority review as as they should be or their briefs are concluded everything is concluded and it is currently actively being considered yes is there oral argument before the board i don't believe i don't believe they are they're going to have argument submitted on the briefs thank you bargaining and your agent says something off the wall you might pull back from that during the bargaining and your last best offer before the union walks out might might be something different but so how do we measure what the effect of this proposal really was to sort this out what what your agent said in the beginning or what this last best offer is its last best offer and i think look at the agreement what would be the contract because this is a bargaining case and everybody agrees now the topic of the casuals is bargaining it can be bargained or bargaining the arguments are making or disagreements with the proposal there's really nothing on waffle with kellogg's making the proposal that they claim is doesn't guarantee anyone any work all it says if you hire a regular you're paid you will provide certain kind of goods and give them certain wage increases the wage rates are not in there it's as if you hire non regular you'll pay them a six dollar difference that's what it says so we don't have to hire anyone flip this around for a second flip the general counsel's theory around do we have to hire a certain number of nondrinkers or bargaining unit employees that change the wage and benefit prisons if we eliminate all casual employer use their bargaining unit jobs the minister of human don't have language in it that says we have to hire anyone what happens if we have a new piece of equipment that's brought in and the new piece of equipment results in regular employees being laid off does that change the wage and benefit provisions the master according to general counsel's theory it sure does