only cases afternoon's crows are chester medical center versus at all are big numbers eighteen dash sixteen forty and eighteen make hundred seventy three and we'll hear from coun were before a magistrate judge you just have to them and say you know it in camera tell us you know make a decision is there a certain is or a procedure like that in labor law can you list an arbitrator right away to have somebody just look at and say ok you know here these provisions relevant redact these ones are not relevant well i mean to begin with there certainly are there certainly is ample arbitration within the labor context gets under the supreme court still  that's not an issue here as far as i understand it wasn't an arbitrary issue with respect to the collective bargaining agreements i think in a general sense the statute does sort of answer the question the parties have an obligation under the act to bargain in good faith and if they can't reach an agreement if there's an impasse then that's something that might ultimately go to the board the problem here is that we never actually got to that point chris you're offered by my count something like five times to bargain over this particular issue to attempt to accommodate the parties respective interests right and the unions response was bargain in good faith the problem is that the union was unwilling to bargain at all cruiser's position which is the amply supported by the law is that it would only have to turn over anything that was in response to every quest that specifically identified relatives so that it could do so after bargaining to accommodate its confidentiality interests it offered to bargain i mean that's what the party should have done here but the response of the union every single time the crows were offered a bargain was one of two things several times the response was silence no response at all and a number of occasions the response was we are not going to bargain over confidentiality at all not one bit unless you agree preemptively to waive your statutory rights and to turn over the entire agreement and i think it's worth keeping in mind i mean the agreement here this is a sale of eight hundred million dollars organization you're not talking about just a few pages of legal ease or something like that you're talking about the hundreds or thousands of pages worth of disclosures of everything from ongoing internal boat that's the that's the bargaining procedure you know i mean i think the right way to look at this case is really as you proceed you know regarding procedural violations and procedural obligation for us you know the way it works in labor wise the parties are supposed to bargain  these things that's the entire purpose of the act is to foster the resolution of workplace disputes through collective bargaining and so you have an instance here where one party wanted something the other side on its rights accepted trade rights that we don't think you're entitled to this whole thing in fact we just tell us what you want to know let us know specifically what it is that interests it's you that you're interested in and we'll resolve that we'll have an accommodative process to resolve that that's what the action is you're supposed to do that's what the board is set in case after case parties are supposed to do direct the court for example to the silver brothers case that involved just that with the court with the board recognize that there has to be that type of bargaining so there is a process it's different than the process that prevails in district court but there is a process that surely some of this agreement was was  specific basis for its information requests it needs to say we understand that this might be an effect of the control transaction for the company we one information about this we think it might affect only information they have made it the information they had said person right your honor i think it would have been incumbent upon the union to actually say that if the union had said something like we're concerned about this particular fact to give us the information with respect to that that would have been a request that then would indicate  you know what that would then provide to crowe's or the opportunity to evaluate the route with you evaluate the request and provide those portions of the agreement if any that were relevant to that request but what the union requested here was give us this entire file cabinets worth of  information on the basis that something in there might be relevant to effect sparking the problem is that a control transaction like this one you have any number of possible effects right and so it's incumbent upon the labor union to indicate to something like four or five times went back to them and said please clarify that request let's talk about relevance let's see what you need here and the unions response was that it refused to bargain and it refused to clarify in other words there wasn't even a letter that went back from the union that said we're interested in this that in the other thing they were simply applying it refusal to discuss the matter with crows or what was in the information provided to the union in the  sufficient to put the crozier on notice the what they wanted if their marketing i don't think so relevant poor fact bargaining i think i think that what that letter did your honor was to indicate to the union several facts of what the control transaction might be but it was then incumbent upon the union to indicate what type of information it wanted i would direct the cordie in that respect to the words southern california gas case where there was a request for information regarding a city proceeding that the union believe had some relevance to the to the correct of bargaining agreement everybody knew there was this state law this state board safety proceeding but the board said that the union's request was insufficient because the didn't tie it to a particular collective bargaining provision all it had to say was we think it's relevant to this obligation under the c p a and there you go that's an adequate request but in this instance you're literally asking it's as if the union went and was pointing at a file cabinets full of information and whatever is here that is relevant give us that in the file cabinet and it simply under this court's precedent so among others that simply insufficient to put the employer on notice of what on earth it is that the union is actually asking for you can't consider a request that doesn't have some concrete basis of relevance in part of the response and have it responded that not all of it is relevant recognizing that some of the after purchase agreement was relevant to effect separately why couldn't you produce some of it well i think there are a couple so let me address that in a in i guess two ways the first is that i don't think that the crews are actually conceded that there was any relevance here the union requested the entire asset purchase agreement i don't think it's implicit because he was responding to exactly what it was that the union had requested that said procedure had to keep open the possibility that there might be something that was relevant with respect to a specific information request after all pros or has an obligation to bargain in good faith over these matters and  if the unit were to come forward with a more specific request there might well be something relevant to that but it turned circuit exploiting that the employer may not simply refuse to comply with it in big us in or overbroad information requests but request clarification in or comply with the requests of the extended compass is necessary and relevant information that's the worst case is that it accurate statement of the law or at least the law maybe we should be adopting has been complied with  even if you disagree with us on this relevancy issue even if you thought they were something the closer should have turned over the pros are still have the right to meet with the board and discuss how it is that they might work out an accommodation with respect to the confidentiality interests the same way by the way that cruiser did with the two whether i would also say that i mean the key point here i think is that crews here really did it out did act to bargain at every step here particularly with respect to confidentiality as i understand it the board's argument to the contrary is simply that the cruiser's confidentiality interest such as it was was not sufficient but i began i would direct the quirks of the silver brothers case which i think addresses really this precise area so if i could very briefly i'd like to  good afternoon your honor may have please the court i'm greg morrow for the national labor relations board asking for the court to enforce the board's order because it is supported by substantial evidence and consistent with precedent as your honour's noted this morning one question is how would the union know what the employer gains relevant or confidential and what are the procedures for resolving disputes over that and the board has set out an orderly way to resolve that dispute first it's the union's burden to establish relevance under a liberal discovery type standard it's admittedly not a particularly heavy burden and part because of that issue the union doesn't have the document they're requesting what they do have here in your honour's noted at this morning is a letter from the employer about the sale convey a lot about the potential relevance of the sale to effects marketing even where the letter notes what won't change and actually knows what may change for unit employees that they will be hired by the new entity perhaps in your different terms and they also know expansion of operations which could lead go to the location and availability of work for unit employees and other issues the unions have a right to bargain over and of course the union said after getting that letter yes i'd like a copy of that and you can expect a request for a fax bargaining and then after that and i know this was discuss this morning the employer through the agent acknowledged at least partial relevance multiple times i don't think we'd be here if there'd been a request for tell us about the new locations tell us about our benefits what i have in the records sixty seven we start with the january eighteenth e mail that says we're asking for the complete purchase agreement we have a response at g six he saying i haven't heard back from you were asking for the complete agreement with the employer response and ask for a little clarification saying it's confidential proprietary and the it did whole thing is not relevant but if you want to give us an alternative request narrow down specific city you can do that and the response and debris eleventh is we intend to file a charge there's no effort to specified narrow down refer back to specific things that were in the original announcer the merger so you seemed to agree in your opening remarks at the union had to gesture towards how does this relate to bargaining i don't think simply mentioning a fixed bargaining without more gets you there right now and i understand what you're on are saying but in this case when you look at the facts in the context is an example with this court referred to and hurts that is where is here the relevance of the document under a liberal discovery type standard is apparent to the parties ok or the employer knew or should have known of the union's theory which potentially from the employer's letter the employer conveyed dental relevant how is it apparent that generally the exceptions to generally accepted accounting principles are relevant based on this your honor under the liberal standard i'm not saying it's a heavy burden for the union to show relevance and there's a reason for that the act for the act of rod disclosure rules help further is meaningful inform our home how how does this make it apparent that intellectual property rights are relevant well as to that the unions not required to specify which portions of the document it hasn't seen because it's been withheld or particularly relevant in this case the union titled to say that document regarding the sale you just described it sounds likely to have potentially relevant information information that would assist me and filling my statutory duty to bargain over the effect of the sale on the employees i represent and to answer your question here's the  process once the union does that meeting that admittedly low bar then here's how we perceive the if you're considering if you're n l r b case law seems to suggest that the onus is on the employer to start by turning over the information identify what is not turning over but our case law hurts because the shoe on the other foot in this circuit the obligation is on the union to identify in some way not just we want everything we grant maybe maybe they should have turned over the agreement original agreement itself without the pushing or not but once we get down to the agreements been turned over a couple schedules been turned over we're fighting over what's left on a list of schedules they have  indicates that the items on that list of schedules are relevant now when you're going on in just one point of clarification unless i misunderstood i don't think anything or any schedule was actually turned over by the employer through the course of their duties i think the union was able to get portions of it and ultimately to schedules through the state ok but to answer your question as this court explained to her it's generally the union should convey facts supporting its theory of relevance but the court noted there will be exceptions cases where including the context of the request the employer knew or should have known the basis for the relevance the relevance of the document the board reasonably found to such a case reasonable minds disagree perhaps but out of the substantial evidence tast the board was entitled to take a reasonable view of the facts and the employer's admissions of relevance as the portside as showing the union met its standard and i think some of this is that it's a practical approach if the employer knows basically why the union feels the information is relevant and in this case it's based on the employer's statement in the commission then you don't have to go through this game of the if you're not going to have layoffs you might worry about locations so they put out a list of things that employees might think about this merger if the union came back and said you know that was a useful list how about anything that relates to items one through sixteen on the first three pages you crucis asked well how is this relevant so this is in litigation afterwards not at the time he should have justified it we get a list of this might be relevant this may be relevant and the last of them is and yeah i mean some of those titles to be honest with you i don't completely understand what kind of information would be contained within them so fourteen five days specified prose or personal pronoun standard fourteen point five b who knows what's in there it would be good to know maybe there is information that's really quite relevant to thank you i do think there's a potential evidence here to support a finding of relevance and i appreciate everything you sad but again this is not meant to be a high burden under board law and consistent with statutory purposes and the union met that minimal burden and the concept of being given a letter that indicated the potential relevance of this document changes to the employment of unit and unit employees potential changes to their pay that should be turned over since the parties seem to agree at least some of it is potentially and the board is an orderly process for that once the union meets that burden and that's the board's view that it did of making a request for relevant information the employer is not entitled to withhold the whole thing it's a duty is to disclose provide any portions that acknowledges are relevant and producible and identify which portions it's withholding and why for example if you wan say we have a confidentiality issue you have to support it not just make a blanket assertion so last meeting a boy and get assertion is insufficient no i'm not denying that the employer was a good guy if you will when it sent that letter given the union information about the sales their concern is that the employer didn't meet the statutory duty of saying this is what withholding and why and that's a problem because it leaves the union in the dark and as your honour's asked this morning how is the union supposed to know what you think is confidential or relevant or irrelevant we need the employer to tell the union and it's not an overwhelming obligation all they have to do is what their agent said she usually does which is provide what she feels she can identify what she's not providing an explain why and here's where we get to the idea of the record which partner in arms are you just said it's a yeah yeah it's on the record that she said that's misspoke a lot of said that her normal procedure and we don't know why she didn't follow it here but there's good reasons for putting on a song employer is the one that possesses the document otherwise the union's in the dark and you're not encouraging a meaningful discussion over the scope of disclosure i think the proof of the problem here is that you call a statutory duty what is in fact something and or be as adulterous case law and in practice you are putting the onus on the employer and i read her as saying the third circuit puts the onus on the union request with some specificity and i don't see how the readily apparent exception gets everything that you need here well it is because it's a it's a parent and agreed that at least portions of this are relevant and that would be the hurt's portion acknowledging that we may not know whether or not everything's relevant that's exactly why the board properly inconsistent with precedent has the employer meet its burden of identifying what it's withholding and why when the employer is here fails to do that the unions in the dark you can say union please meet with the union wouldn't be informed as to why you withheld certain documents i see your time as a but i would like to hear a little bit about the punitive miss of the remedy  somewhat troubled by before we get there of course let's go i started off by asking your adversary well i mean you're with the board there's got to be a better way than having it come to this when you could just give it to some third party officer  even if that wasn't a justifiable position or it's not saying we know for sure everything's relevant the employer didn't meet its burden of saying what they were withhold were withholding and why so the board put it they never put the union to the test of modifying their position and again it wasn't a hard burden it's just the employer could follow it as usual course and support their claims and explain what they were withholding now let's get to the remedy the problem is you know our time now answer is yes but i know i don't really need to remind the court of this but i just do want to point out that this is a deferential standard riverview and by have been i'm not saying you rubber stamp anything but just that the board's remedy should be if affirm it's a pattern attempt to achieve that ends not allowed by the act which simply means if there's no perfect remedying you could go this way in my opponent to suggest maybe you could go this way or the just feels differently that alone doesn't meet the appellate burden of justifying disrupting the remedy but to go to your question it's not punitive because going back to this what is an orderly way of settling these disputes when the employer had the opportunity but failed to list and explain why it was withholding and why and to support its confidentiality claim when it failed to do that a timely manner it waived its right to make that claim and as the board pointed out to allow the employer to have a second bite at the apple this late in the game would give it the benefit of its failure i hear now more of bargaining with an uninformed party who didn't have a document when they were bargaining but that's really what my opponent is asking for we didn't do it at the time when we were supposed to let us go back and do it board pointed out that wouldn't be a good incentive i think the difficulty we're having is if it were clear that the remedy worst case is you could reasonably get to putting the party in the position it be in we wouldn't be but when you start talking incentives the dissent reasonably understands it is deterrence and it's making an example out of this guy so that future people don't monkey around like this and that's where you characterize it as p e your points are fair from my response and understanding is this when it comes to what the circumstances would have been had the employer met its obligations there's two things first we're assuming for the purpose of looking at the remedy that there was a violation meaning that the union established relevance at that point the union was required to do more no more an order to be entitled to at least part of the document so at that point the employer hasn't met me you know provided any reason for not giving over the whole thing i'm saying that's the status quo ante i think we can lose sight of that the unit is a burden shifting approach in a way at that point the union is entitled to the document and the other thing is to the extent we're not sure the reason is because the employer didn't mee pours you should act a certain way and that's good this is like you're close to puter being puter i don't think it's punitive because it's furthering the x start you tory interest in promoting informed meaningful collective bargaining which you can't have that information and i think it is fair to say if the board sets an orderly process and the employer doesn't make its case at the time and waves it's right it's not punitive to just say we're not going to give you more than the statute affords you we're not going to give you a second b  at the apple and i do think it's fair to say at some point if we're raising uncertainty about what the scope of disclosure should have been had isn't it fair to ask shouldn't we put the burden of the uncertainty on the wrongdoer who's wrong cause the uncertainty  subtle plot too and there are cases saying that the appropriate remedy when the employer doesn't explain in substantiate its confidentiality claim when that's the situation the remedy isn't to afford them another chance to do their case i believe it's the watkins case those are cases where the board said because you didn't meet your burden of explaining what you're withholding and why we're not going to give you a second bite of the i well now ok but you core didn't see just retribution for the board such as laying out the orderly timing of when you make your claim and saying you missed the boat and we appreciate that you're asking for a second chance and there may be future cases where that would be justified but not one where it's quite clear in the fourth you that they didn't even identify what they were withholding and why and i would just ask him as a realize i i'm not saying there is always a perfect remedy i'm just saying this doesn't go beyond the remedy and say all right the dissent was right it should only be the relevant portions of the agree with they get turned over what's the harm in that in that kind of a holding i mean is it that again there's no incentive for the poor to comply and you have to go through a charge an arbitration did to get documented it could have been turned over years before would you think that is a harm that there's no incentive in the next case for there for the employer to comply by substantiating their claims at the proper time and you have years of delay and the union bargaining are now less informed basis and i do think that's a harm that the board is justifiably trying to avoid and avoiding that harm and and preventing a wrong doer from benefiting from consider inconsistent with the boardwalk with regard to information the board divides information requests and to two categories one directly related to bargaining unit members and one relating to people who are not organ unit members who are other employees for other people the ones the categories the questions related to bargaining unit members are presumptively relevant so all the union has to do is ask for that information and the employer has an obligation to turn it over questions having to do with people who are outside the bargaining unit who are not members who are not employees who may be just was requesting was information related to applicants for employment to her still union felt that the earth was possibly discriminating and they wanted information relating to all the people who appl hertz what their gender was what their race was and their names and it was in that context and as emphasized by the court itself so what we're talking about is l this it's page eight seventy four in some situations a union is reason for suspecting that discrimination is occurring we really apparent when it's clear the employer should have known the reason for the union's request for information a specific communication of the facts underlying the request may be unnecessary that's really we're talking my guess and i think i think if the union was requesting information about its members and discrimination against its members there what kind of all different standard but it was requesting information about people who are not even employees are not even covered by the act and i think the court made very clear on page eight sixty nine when it said the precedent established is that before an employer is required to provide a union with information up a general approach at age seventy three the first column a general rule the duty to bargain of the hiring practices arises only when the union has made a demand and has communicated information to the employer indicating it as an objective basis in that case religio discrimination so there's there's this requirement that the the court says has to be a rational equates it with reasonable basis has to make the reasonable basis known which seems different from your well we can just presumptively view everything that relates to our members as discoverable they seem to still say there's an obligation on the union to articulate to the employer what that reasonable basis i think they do say but that but it's in the context of an issue as to whether or not the employer had to provide information related to people who are not employee since not the order in which the court's logic proceed sets this how does a framework and then it applies it and says you need some particular showing here property rights relate to remember now but i think we have a real estate holdings elsewhere relate to your members i think when it went in the group the asset purchase agreement has a provision that says how we're going to deal with collective bargaining agreements how we're going to deal with that terms and conditions of employment of represented members were going to be set an initially by the new employer so that means to the union immediately the understanding is well they could set different wages they could set different better benefits they could step in different working conditions and so on and so forth so that immediately raises the question to the union what is in the asset purchase agreement that might repeat might respond to that  from the employer on february tenth this is look we have some confidentiality issues here we don't think the whole thing is relevant but if you want to make an alternative request specify what's relevant how it will listen and then we get an email back  issue is the union perceiving that there are issues that are going to come up in effect sporting affects corgan if you have you going from one employer to another employer so under the football the union has the right to bargain over the effects of that change now one of the effects that's a been a den a fight to the union already is that something's going to happen to expansion and something's going to happen to the terms and conditions of employment for new employees so that when the union says we want this for purposes of effects bargaining the employer as a sophisticated employer that's dealt with the union understands that these are the issues that the union is going after and the facts about the asset purchase agreement that under board law and order to make bargaining possible certain peak preconditions have to be established one is that the employer has to turn over  what's relevant to the employee which clearly relevant to the employees and is non constant confidential has to turn over that information so the union has some idea of what it is that they're going to be pardoning over second it's required to identify those portions of the agreement that it considers to be confidential because that's what they're going to be barking over is is this confidential is it not can we come up with a way to protect the confidentiality of the employer and at the same time give the m for nec nation the union needs to in order for it and then it's required of the employer under board law also to propose an accommodation like with action or a confidentiality agreement these three steps set the preconditions for negotiation over attaining confidential information or deciding that you're not going to detain a confirmation not all of these things was done by the employer so the preconditions for bargaining want set by the employer who has no possibility for the union to engage in meaningful bargaining with the employer over this asset purchase agreement because the preconditions for bargaining were not set but it would you seem to be suggesting that because of the letter that was sent to the union and your response that you can expect a request for a face bargain shortly thereafter that that is enough to sort of suggest that the as a purchase agreement should be turned over to you particular case well you have an employer that's selling their entire operation to a new employer and you have an employer that said that new conditions are going to be set by the buyer new conditions new terms and conditions of employment not saying what they are and saying that we're going to change your pension changes have to be made to the pension and also and also saying that our health care is going to be different and the union says we need this agreement to bargain for a bargain a fax and in effect a matter that's sufficient to establish relevance on the part of the asset purchase booked was run of them from the asset purchase agreement mindful of the fact that you know how to have it in your hands oh that's one of the problems i mean the union had no idea what was in the particular asset purchase agreement that that the employer had had the employer disclosed the non confidential but relevant portions of the dream it would seem clear agreed to when we conceded in testimony before the board at the hearing that some portions of her relevant or relevant had it disclosed that to the union then the union would have been in position to have some sense of what else was in the agreement and what else that it's for but in the absence of that it's like i'm going to give you a blank piece of paper what do you want what parts of this do you want and there is no possible way for the union to bargain intelligently because it's got not given the information it needs to enter and to affect the bargaining over what should be stay no basis for the demand that was ever communicated to crows or all we ever heard was simply you can expect if a request for effects parking there was no elaboration there was no clear indication there was nothing  the court should defer to the board's finding that cruiser was put on notice of relevance by context or something like that well generally we all move standard of review here so well the problem is is that the court actually can't differ in this respect because the  decision that was then adopted by the board specifically made no binding on that point and that's at joint appendix page thirty seven note to footnote eight and so for that reason there actually is nothing to defer to on that particular point  as noted something like a dozen different contradictory and somewhat strange claims regarding relevance but then they ultimately testified upon questioning that what they really wanted was to know as much as possible about cruisers and prospects finances in general which of course is not a for information you told them were sewing there's going to be these things that may be different i mean isn't that you know i mean i think could you agree that a union would be interested in sort of some details on that at least they think is relevant to what they think is not relevant or what they are seeking when they don't have it and have a duty to see it well i agree with you to the extent that i don't think that the union had to identify we want this portion of the agreement that we should agree and so on but they have to do is to identify particular facts because keep in mind control transaction for a business could potentially implicate any aspect of the employment relationship in other words the union might have a view that it impacts this that or any potential term employment all they needed to do pass to say what it was that they were curious about not to identify we want this schedule but simply to say we're concerned about this particular issue we're concerned about pensions what's in there regarding our pensions that would have been enough in the union refused to do that and i think it's worth you have one letter that we stand today you know it when you look at the record in this case what you're viewing is the letter and then immediately the exchange between the parties but there was a passage of time that as usual the reste various communications between the different parties over this period of time it's not like one thing came immediately after the other and it's certainly not the case that the unions request reference to respect the latter i think the board's quote best case probably with respect to context is us testing but the union in that case which asked for health insurance claims information ma negotiating session where the employer said hey we're going to have to raise the amount that employees contribute to health insurance coverage because there's been so much high claims activity so the union asked for the claims activity that's about the strongest case are relying on that issue this doesn't come up very often otherwise there aren't very many court decisions on this map and see to later point i think the court really has two different ways of looking at this one is with respect to the confidentiality issue if the court finds that there was simply a failure to bargain with respect to confidentiality due to the unions hobson and the result is going to be that the parties will wind up bargaining over this so in terms of the way that this would shake out that is certainly one way to decide the case and i think that that's amply supported by both the record as well as pyramidal the first is does it restore the situation to what it would have been but for the violation second is the remedy tailored to the unfair waiver practice and third does the remedy effectuate the purposes of the act this court has applied that management and it's pointed out that when you don't meet those standards particularly the restoring the party standard in that instance the remedy is considered to be kidded him and i think for the reasons reflected in some of the questioning this remedy does go beyond simply restoring the party to the position he would have been in again when cruiser was faced with a very similar response by other unions it negotiated there were accommodations and it was able to reach an agreement with him without anything going to the board no end but unfair labor practices it works the way it's supposed to work under the statute and just along the lines of what it was asking you're your friend across the aisle if we agree with you are we opening up the door to employers just the way you basically say many opportunities to bargain for in an informal way you know that there's really damage that that occurs how do you respond to that well your honor i don't think that it's a concern on the facts of this case for two reasons the first is simply that inducement now did you all employers read that and say well shoot all we got to do is we delay we maybe we get to the third circuit maybe you know who knows but you know is that really right is that is is not a problem i don't think so your honor and again let me just that the standard for demonstrating relevance is very low the standard for indicating specificity is very low this is not a high burden for the union to clear the union in this instance made no attempt to do that i think that is the type of decision that would have no impact whatsoever on the forget the mind run of cases pretty much any case i'm aware of but for this one where the union simply said we want this affects marketing and that's it when in the rare case where there has been unfairly a better practice charge on that basis the board has said no you don't get it you have to be more specific than that it's only come up a few times because unions typically go a little bit farther and say exactly what it is they're interested sometimes they participate in bargaining where the parties can clarify what it is that is being requested the union here took such an extreme position that the court can simply reaffirm what is currently the law and that would be enough to decide this case and i think the court would need to strike out in any other direction and the other point i would make in response to your other question is simply that with respect to confidentiality again it's a refuse to engage in bargaining on a piece of it on a basis that was legally unjustified and if the court simply were to recognize as much i don't think there would be any change in the wall whatsoever it would simply enforce existing board precedent so for all of those reasons  think this is a very interesting oral argument could you order a transcript the court can help you with that and if you could split the cost between the petition or the respondent that would be terrific thank you it off the