circuit i spoke to many of my colleagues and other lawyers before i came here and i told them i was coming and they also that was very exciting i'm not sure that that's the word i would have chosen certain things  consumed a little less than half of my career as a lawyer i was the lawyer who filed many of the original unfair labor practice charges back in two thousand and three it's just i mean let me get to the part of th extensive explanation they have to adopt the recommendation of a q s l order and unless there's a big explanation they've got a track along the recommended remedy as well as the recommended findings and i think my question to you is this if the standard or default is not to have a bargaining order which seems to be th that's the unusual case in which there is to be a bargaining order rather than a new election why does that take the same level of explanation as the nonstandard if you follow  what i do you're i think that the problem here isn't simply that there were these factual findings that were made by the a l j and therefore there was a record even if you assume that the board didn't have to make new factual findings which is not really its province anyway the board had to engage in some legal reasoning the judge the thirty one engine is understand what the board said it's simple but it's says you know that the factual findings are fine they are fair labor practices they are and the question of remedy we're just going to go with the standard one because we think the standard will solve the problem well enough i mean it's a pretty kind of remedy but it's just a plain old run of the mill case but even for a disorder which i understand is an extraordinary remedy it's not the standard remedy even for that there is a legal standard by which you evaluate whether that extraordinary remedy should be imposed they didn't address that standard they didn't evaluate the factual findings in light of that standard there are no cases that i can find that say that they have to do this in the have to say but what's what is your best analogy for something that was a small explanation that was not going to have what i came up with a couple of cases that are helpful although they're not  ninety three which is that the board must the board quote must explain its decisions so that a reviewing court can determine whether it attempted to with factual the x policies in a reason to deliberate manner the court will not enforce and that will be order that clearly departs from the board's own standards that's one case and by the way that wasn't a perfect quote there's some brackets in there i understand that the other case that i came up with is a supreme court case which is the n l r b versus my metropolitan like insurance company which is three eighty eight us for thirty eight and in this case the court and again i quote said due to the board's lack of articulated context i would assume that if the board simply agreed with the l j that would not be enough because there would be no review and there would be no analysis of anything i mean in general you as a reviewing court when you agree or disagree with a lower court you explain why well i hold the french does it make any difference that the board chose the standard package if you will rather than something out of the ordinary is there is there less of a demand for an explanation and when the remedy is the standard remedy i don't think so because at the anything is evaluated by legal standards they didn't do that they didn't even come close i cited to four cases that have been thought issued by the board and since this was striking about that if you still the absence of a case that deals with what is the minimum required in other words if one thing is required and someone does tan you can bring in  million examples of someone doing ten but if the minimum is one of whatever it is it still doesn't tell you much about the minimum and i guess that's my difficulty throughout this there are lots and lots of examples of fuller discussion but i'm struggling to figure out what is the minimum that's required i think like so many things there's a line drawing that's your size i agree with that but i think that they came to the board in this case was so far removed from that line they were so below the line in their two sentences that it's not as difficult to establish what the minimum should be and i think that you have enough other cases in broader cases as to what constitutes agency had to explain that the the governing of this nation carries with it the corroborative responsibility of the agency to explain the rationale and factual basis for  will order it has to give a pretty extensive explanation why wouldn't the symmetry require an equally intensive explanation when and the courts and the board recognize that when it departs from that and when it goes beyond to grant an extraordinary remedy like against a bargain warner that has to justify that and simply the fact that the administrative law judge found that it was appropriate that make any difference to the level of explanation that is required it probably wouldn't and the fact is that the category one cases is very very very very rarely happened and i want to it's not really an issue here what they have to do at a minimum for us to review it is what's at issue i think seven are for us to understand what they've done and valuate it well i i think the  it believes that the traditional remedies will cure the harm here and after those remedies have taken effect of the second election to go forward and that was the board's analysis fully consistent with precedent and it also the important thing here too is that this is the reason why this bargaining orders so extraordinary is because it deprives the employer of the right to your ballot election and the board's very concerned about that it wants to protect that so that it didn't really remedies and it's certainly not an abuse of discretion here for the board to simply states that it believes that's not departing from the status quo you know it's going to do more analysis about it when it's simply granting the traditional if you take the l j's conclusion by itself that's going to be true probably ninety nine percent of the cases they union enjoyed theoretically majority status the describe i go into detail about why this is makes this what makes this such a unique case it's possible that the the board looks at that and there are no exceptions filed correct i think you have to be exceptions to make changes i believe that the board can see respond to make changes without exceptions and then at that point the party that is explanation of his bottom line they wouldn't the only thing we could do would be to remain under four reconsideration manner for explanation i mean that i mean the whole premise of it is it cases in the context of the remedial order here i think the board is particularly placed in a position where it's has a broad experience in labor law it sees lots of unfair labor practices and it's charged with applying that expertise to ensure that the employees rights are on for service and here while this is a case between the union and the company that the board i ultimately looking at the rights of the employees and it's one of the cornerstones of the axe is the right to a secret ballot election and the board takes setting that aside and imposing a union very very seriously ordinary act you nevertheless need to meet an extraordinary standard explaining why you're not doing that i think it seems apparent as judge from then just point out that this is more or less a garden that sometimes when you and you can really get skunked after they've got a card majority that the board will take a look at whether or not the violations are really permits us to determine whether or not a bargain orders appropriate absolutely  also took a look at the size of the unit ninety one employees not a small unit pointed out that there was not widespread dissemination of the alleged coerced to conduct and fundamentally drew upon it have stephanie years of experience in understanding what does and doesn't work in terms of creating an atmosphere that can allow a fair election i don't think that this court has on this standard are are loaded with with facts and judgment with respect to that call and it seems to me that the standard of review is argued to create a right line for the board or as you quest questions yourself is is it correct that the best that the union can come out of this would be a remailer and to the board to say look we need a little more we understand what you're a couple more observations that just because of you know that you need makes a recommended order or suggests one it doesn't rise to the level of findings of fact and under a representatives have a bill right in front of them which they passed and we're looking at the whole question of whether there would be elections that isn't a question that's before this court thank you thank you very much for your attention i believe you have some rebuttal time randi just fact i don't think the union is asking you to create a bright line here i think that the court can easily see that there just was insufficient explanation here to be able to review what the board did it doesn't mean that you have to create a bright line for the future but in this case the board didn't do a good job judge fernandez asked me during my might have said if they had chosen to do that but they didn't and there is a law in the supreme court that says that you can't except what counsel says an argument as a substitute for what the board should have done and that's again the metropolitan case that says that a couple of minor things my understanding is that if there are no exceptions to a bail j s recommended order that the order is automatically j so again i don't think this is a difficult case in terms of whether the board provided sufficient explanation for you to review it i think if the board did a little bit more it might have been difficult i might