the fundamental distinction however they have the same skills and qualifications they use the same tools they perform the same hands and so it just is one distinction about where they perform their work with a board failed to do although it pointed  one through three that are similar and there are factors four three six that are different and the differences outweigh the similarities therefore we're going to break apart this job classification and recognizing you know what the court has to do is it has to explain in the way that your honor was starting to do although happy that i can explain why i disagree with the conclusions you were trying to the board has to explain in the way that your honor was trying to do why is differences might actually bear on collective bargaining and why these differences if they are in collective bargaining are more significant wants to discuss specialty healthcare we believe that specialty health care is wrong i'm happy to talk about that but a simpler narrower way to resolve this case which we would ask for is for the court to say regardless of specialty healthcare with the board him don why i can't give you an example of analysis that would justify this particular it but if hypothetically the board that the regional director and the board had approved a unit larger than the one that was approved one consisting of the entire hour operation part of the analysis might well have been these employees all share a job classification they all do the same kind of work they're on the same pay scale they have the same terms and conditions in them or even in terms of similarities with others at the point with other departments and of course constellation argued before the board i mean before the regional director as an initial matter that even walk along it why should be recognized and so they do share similarities with others however the board distinguish why there are one fundamental differences between say production name mentioned forty's and the sour operations unit because the maintenance employees do fundamentally different kinds of work they're hired differently they have different skills there are different things that they need to bargain over there some people are different pay scale and those are things that both give them a distinct identity in the other groups and in addition to having a distinct identity  courts typically make up justifications for agency typically agency actions are judged based on the justification you can see is off if the agency hasn't offered a justification that withstands the level of review that the a p a requires then the appropriate course rooted you i mean that there would be difference in that regard but all the other terms are you're saying are similar i think you might well have different pay for different people and that's precisely one reason why it's inappropriate to split up this kind of a unit because it's putting the company and the employees in an untenable position the pension way of having some people bargaining over wages in terms of conditions of employment and others not subject to the same conditions even though they're doing the same kind of work in adjacent location at the same perform it creates all sorts of queer nation difficulties between those workers who are subject to these bargain terms and conditions and those workers were not it's entirely appropriate for the board to take that kind of consideration into account when it's deciding what yes good afternoon here others may have leased the court regular for the court asking the court to enforce port authority because it's unique terminations is reasonable i want to begin by noting that while my opponent suggested that perhaps the court doesn't need to employees and the barrel department no thank you your honor i disagree with my opponent i think the regional director did a lot more than just list the factors he explained them in detail the similarities of the unit employees and their differences with the other lawyers for example he noted my opponent's argument that was also made to the regional director in the hearing that there is common supervision at a higher level but the regional director exploiting it that's offset by the other differences we have here including distinct intermediate immediate supervision and it's those direct supervisor who actually interact with the employer another example report from that you're sure  to make that finding of course the board applies to traditional community you think this factors like you did here is found that these employees are a separate apart with separate supervision with a distinct role in the wine me process the employees testified community ventures and not not really related to the purposes of life and that's what the board did that's a forever cers order well what i'm saying your honor is the act doesn't tell the court how to determine whether unit i'm i'm interested in this question of the regional the difference to the regional director i guess that must be well settled but without the regional director this isn't of the original director is the decision of the board for said i don't believe that is in fact if you didn't those cases i think what what you did in those cases is look at the board's decision which was i don't know if that was the regional director decision the worth of the board added anything in those particular cases and in the front of an employer's argument board's finding that this is inappropriate for collective bargaining because the board has applied factors and said you know that a number of the factors point in that direction and that's enough for the board given its expertise in these unit determination matters and therefore we important to understand in this context is that the statute itself section nine b which again we quote in the brief and the supreme court serious prudence says there is more than there can be more than one appropriate unit in any given workplace and and so it's not always going to be the case that every community of interest factor points in the same direction it's the board's responsibility to evaluate those factors in light of the record evidence and make a determination that enough of them do make sense for collective in five days during which is part of the reason that the regional directors decision goes on at length that the other parties which are not being raised here today to suppress said look you could put the barrel apartment employees together that would be an appropriate  regional director roof well the board that the board reviews these determinations and sometimes as in this case they found recently director had done all that needed done there certainly are  the ground i can't say i consent we won this election very easily it's in the record thirty one thirteen it's very well possible we could have won a election with a larger group as well was there any ethnic or other differences between the barrel and  and sometimes although it seems like a union will always want to represent the margin that's not always the case sometimes our unions have expertise in representing particular groups of employees sometimes we feel that conflicts of interest not legal were approached by and decided to work with the group of the seller voice and also i can i'll say at the time when these decisions were being made before the regional director constellation was arguing that the unit has to lose all production and we were not interested in that and s or that would be so that is is there something the what's the difference between these two groups in fact and if the and anything else so th that i put your name now you got in there pretty well ok if i could i'd like to make one legal point and clarify a few things about the facts legally simply reciting the community of interest factors can't you know because if you look at both this court's precedents and the boards want it was a wall unit i want all the salespeople all the service advisors and all the mechanics in the same unit because you know what we're all here to serve customers and it's a common mission and it makes sense to have everybody be insane in the union comes in and says yeah there are some commonalities you all have the same employee handbook but being a mechanic is a fundamentally different task requiring different skills and training and hours and working conditions and pay scales then being a sales person and all of those things that the mechanics differently that are unique to them that's really what they're going to target and it's true that there are some similarities and so some community of interest factors in this car dealership every wall to wall unit but i think the board in that situation could reasonably hearst of all that's not what the board said didn't say they had a fundamentally different job because that second of all it didn't say that because of that that bears on what they're going to argue no and third of all that's also not true the barrow boys this is in the record do go out into the tank farms they need to build lines in order to transfer the product from the tanks to their barrels there's testimony in the record cited in our brief that the barrow employees go out into the tank farms to work on some of the same types of wine as the  purcel our employees they work on cars that have sharp nail on with the outside noise so it's not factually correct that there is this clean division between inside work and outside work but even if it were factually correct the board would have to justify that with reference to answer but the be very crude about it that you can win with the larger you that you would have a better chance of winning the election well and what i understand happened in this case is i wasn't involved at that level but what i understand is that the union larger unit will give you a victory in the election and leave here adversary to believe that the small unit will give them the pictures so i think the only thing that i can tell you about that is that the experience on the ground is that this is what the union found when it