analysis it's decisions it moves as super terminal in two thousand and two it moved the howard terminal work to the super terminal in october two thousand and two at that time a all the work the real work to the e u and move nason work to the terminals for terminal the next month and to continue to use the i l w u because having containers and damaged goods and that just was not was not the way to operate a terminal so the i l w u as a sign of work and when the mats and terminals closed that were came over to the super terminal you can see that work been susa came  picture with his award in february two thousand and three have believe it was and he concluded that the i am had a right to continue to do the matching container work based upon prior contracts in practice and he concluded that to be the case because the i am right follow the work so the mats and terminal work container raef are working to the super terminal i am continue to have the right to service or if there so now s s a has a problem has a business problem it has two competing unions at the same tremont all so the decision was made to move the mass and work away from the terminal and that decision a decision was made for business reasons and the two business reasons that drove that decision were one mattson was a freight line which was unique it required the gates be kept open until five  ship took off her says the way other shippers work and that is you leave the gate you close the gates twenty four hours before the before the ship leaves we leave the gates open until five minutes before the ship leaves that requires extraordinary efforts by the guards and watchman and the other workers on the on the wharf so the decision was made to move the mast and work to another terminal the issue then became what terminal it so happened that the which could have been made available to s s a which was a better service purposes and on better terms as a say would not of taken a hard power terminal however that was a terminal that was made available and by that happen container work is moved to the power terminal the testimony at the would wouldn't have been fair to assume you were going to get in trouble with the union when you did that well the the employer had to make some business decisions but what i mean employers do this all the time they sit down with unions and they aren't things out and i think the employer did the employer ironed out the super terminal problems and ironed out the math and the old mass and line was open temporarily any problems there but when it moved the work of the mass into to no work and that's all moved by the way to the howard terminal the testimony in by mr larsen is to that effect that the were just trying to run a business we have no interest in being the middle of of a union fight so i mean it would have been nice if somebody had argued this out before the fight started well unfortunately we had to arbitration awards which was a form for the fight we have s where who says that the right to service a mass in containers follows those containers in those you say you're stuck between two warring unions and you go to the n l r b and say help me when i veil ourselves of this process is there that's wu because of the happenstance i l w u was first on the site and then we get an award from suits that says no you can't do it that way you gotta got it you've got to give the mass and the board relied on precedent  reduce your wages reclaimers union says no recons president testifies that i'm going to break the union i'm going to get it and so he then starts using an unskilled union to do the i guess the placement of non  a union dispute we have tried to exercise reasonable business judgment we have relations with the two unions today and we are trying to maintain union peace  quite that overt but i think there has to be some bad deeds by the employer well i think i think what the board was research trying to say here may be wrong about this felt certainly i have a chance to correct my impression is that november two thousand and four said that the i o w local seventy five has a right to monitor the the maps and refrigerator containers at the at howard so got to unions w awards and have the employer in the middle and what's going on right now i mean exactly what's happening the status quo ante is being maintained that is quite as big local seventeen's doing the monitoring and the continuing to do the plugging and  plugging so we're everybody's waiting for this this court's determination been able to work it out without the ninth circuit well we i think that this board is really our mechanism for relief  when we have to look at let's assume that we just agree with you just for the sake of argument where do you go then to sort this all out well i guess we have to i am threatening job action right in the eye of w has historically not been reticent to exercise job action either and we got to final and binding arbitration awards which put us in a bind and so my question is if the board is not helping if we don't help if we go with  t where what do you do how do you dig out of this i think we have to keep our fingers crossed and we're trying to run a business we don't want to fight with the unions so yeah but what will you do i mean when you go to court somehow or  down with people what happens well i don't know what remedies available other than the board given that we have two final and binding arbitration awards which interpret the contrary contracts for two contracts were stuck in your coverage one contract or the if these containers are the mechanized equipment needs to be repaired it's generally the machines to do it but in some kernels out of a dozen there's always this correction because when that can turn or a refrigerator container lands on the dock it has to be local seventy five and then when it made a business decision about which none of this world to move some of the work back to the math and terminal some to the white u i kernel and the rest back to the howard terminal it made it business decision to changes when s s a moves to the howard turmel and brings machinist along with them for the first time creating that friction and there are plenty of board cases that have said that you can't determine jurisdiction simply on where physically the work is done because it is not unusual for business decisions to result employees taking work and moving it from one location physically to another location creating it as a result of a business decision creating traditional ten k factors very practiced collective bargain agreement kamin efficiency employer preference to use those conditional factors to decide who should get to work because once the issue that decision arbitrary number of these cases but not a lot because we don't you know you don't do a lot of ten k s in your career because frankly most of the result i was surprised and never could figure out why the board didn't understand i think the board misunderstood one important factor which was that be never objected to because they recognize that our folks do the maintenance repair work on the containers and the moving equipment so the short end of forgot that there was this quick that because our members are now there this whole past history  think we do that but it leaves it leaves it up in the air to be resolved by litigation striking which is not which is what ten k was designed to avoid was designed to prevent the unions to be in the posture of striking or pursuing ards here sousa ward that was referenced by counsel for the i am is only limited to be for work at the super terminal the dispute here is over reefer work at the howard terminal the super terminal was a new terminal where neither union go in the right direction i mean it seems if you take away all the trees and look at the forest this is a classic case that's appropriately resolved in this kind of a process isn't it a ten k was not intended to be a board arbitration procedure ten k in language plain on its face it says one is a violation of a before d because a union has threatened economic action to force the employer to give work to that union as opposed to a different union than the board innocent in the statute anywhere you know but that's the standard that the board applies and that this court has and what does it mean innocent i mean they say hey we're innocent we made business decisions unlike cases where you get employers who are trying to hammer a union that's culpable there's there's no business reason for that they're saying hey we're just trying to make business decisions here we don't have any were innocent why aren't they innocent they're not innocent because they breached their past practice at the howard terminal by assigning  what you want to call the geographic area of the port of oakland where the one pier ten peers are three terminals or whatever the dispute is not as to who gets the refill work at the port of oakland as the parties themselves stipulated it's who gets the re for work at the howard terminal and it is not limited in any way to any specific containers it does not say who gets maps and container we for work at the howard terminal so if we if we agree with you which we very well may i don't know what's the practical result what's going to happen between the unions and the employer will encourage the parties to sit down and as you said earlier hammer it out and engage in collective bargaining and when presumably when their contracts expire they can decide who gets to do this specific work in the interim they'll just have to live with the situation as they have now for since the board's decision strikes possibility no strikes are not a possibility because as we say in our brief both unions have agreed to no strike clauses and mandatory grievance and arbitration procedures and that a strik enjoined under boys markets so that is not a possibility so what they're looking at worst is sitting down and working it out correct and that's exactly what the ten k s designed to do it's the board has held and with this court's approval ten k should not allow an employer to set aside its collective bargaining obligations it's in designed to encourage parties to resort to collective bargaining and that's it precisely what is happening here the border leave it to the parties themselves to figure it out getting back to this is a word that that they claim they're caught in between two arbitration awards it's simply not the case this is the award as they said was limited to the super terminal and the arbitrator did not say i am has the right to follow the work wherever it goes as counsel for i am said rather was limited to the super terminal in fact the only arbitration award at the tower terminal the location of  back to the innocent employer the intent here is irrelevant and whether it was for business decisions or not does not does not mean that the board is required to decide this dispute under ten k you don't have to show bad faith it's based on breach contract principles good faith is not a defense they're the i o w negotiated for a bargain for a contractual work preservation clause that said we have the right to continue to do the work that we've traditionally done here the record is clear that only the aisle that he you has ever done we for work at the howard terminal which is the work in dispute as the parties themselves stipulated the board was necessarily constrained by the party stipulation the board was not asked to divvy up which containers happened to be at the howard terminal at any given time and award work to specific containers on a container by container basis indeed council for s s a says that would not work that  terminals there was a dispute initially at the ten k hearing over super terminal ri for work and maps and terminal ready for work but the parties said to the board we have agreed that i am with you all ready for work  i don't think it has any bearing on this case well it shows that it's not subtle it shows that s s a signs reaver work among the two unions based on location and not based on what is printed on the side of a container that happens to come into the port of  oakland final point is that the board did consider that massey containers happened to be at the howard terminal at the time of the ten k hearing and they found that fact would not affect the disposition of the case they said so in their order denying reconsideration so the board did not glance over any important fact that would warrant this court to reverse in fact the board is owed deference here they are the expert agency entitle to interpret ten k there is substantial evidence in the record supporting their factual findings that only  done the work for the location of the dispute and they weren't arbitrary capricious and the application of the law i have a random question for you and that is in your preferred you sort of reserved for the future question whether we can review this order and there was saying and bank decision to that effect from this court in one nine hundred eighty two saying that we do have a jurisdiction to review orders of this kind why are you re serving that i mean you don't have to answer that i guess but i was sure it was a curiosity to me i spent some time thinking about that question of  he referred to the pelican pond location was a new location with no past practice so the employer had to pick which units it's going to give the work to here the employer transferred the massive containers to the howard terminal and at that location there was twenty years at least a past practice of the i'll tell you exclusively doing the work that cases distinguishable there no further questions i'd like to do the rest of my time to m i think at the other it's important to to focus this case on the recon case but this court decided not that many years ago and in recon this court recognized the national labor relations board was the expert agency passed under federal law for many decades to decide the important questions of federal labor law accordingly the standard of review that this court and that the other courts in this country use in reviewing board decisions such as the decision that is that issue in this case is a differential one the standard of review for reviewing findings of fact is substantial evidence and that standard to review as this court noted in recon says that the findings of fact must be affirmed if the relevant evidence the such that a reasonable mind might accept it as adequate to support a conclusion even if a court might draw a contrary conclusion were it to be deciding the case de novo or were it to be deciding the case as a matter of first impression likewise the standard of review for the  a couple of years ago is that the agency decision will be affirmed in laughs it is clear that the agency completely overlooked important aspects of the case or that the agency's decision is simply so implausible that it could not be attributed to the agency exercising its expertise honed over many decades so when you're if you want to find your statement of facts are we bound by because they're supported by substantial evidence that's right and there are a stipulated that the work in dispute was reefer work the monitoring plugging and unplugging the refrigerated containers at the howard terminal it was all ready for work at that one location and that that defined work in dispute that limited the board's authority and that limited the scope of the issue in dispute another fact that the board quite properly relied on and one that was undisputed is that the isle wu is the only union to have ever performed reefer work at the howard terminal this was this was undisputed that is prior to s s a is decision to unilaterally s whether or not whether or not that is the case it's very clear from decades of board precedent and from and from court appellate decisions over the decades that there is no intent requirement in a ten k hearing will be quashed and quite quite properly if it is shown that the dispute is one of the employer's making what do you make that i think that under the board president the the first inquiry and in many ways the dispositive inquiry is whether the employer created the dispute but that being said what i believe this paragraph gives and and how it should be interpreted by this court is dicta it really is a i believe a conversation carried out by the board panelists in this decision about issues of interest to the board but about issues that were not directly before the board in our case it's it's maybe a little in artful but it but at the end of the day is dicta the paragraph immediately preceeding the paragraph that you quoted is where the board makes its finding and makes its decision what the board says there if i may read it is in light of this precedent we agree with i l w u that the real dispute in this case is a work