to do for to the parties grievance an arbitration process in accordance with proper formulations of what's referred to as the collier insulated wire the pearl  resolution of it but i couldn't find any case in which the charging in which you have the union backing at the charging party wanting to go ahead i mean that the the employee whining i had yak and any cases like that i think there are several in fact one of them that judge edwards also dealt with in the plumbers and pipe fitters local five twenty case where the union administrative law judge proceeded to hear that a day one and a day three allegations in spite of the collier rule that is set forth alpha beta and the board fortunately in that situation reverse that and said that the issue about not taking the matter to arbitration is not part and parcel of a proper unusual we have the general dynamics case where the union also but you think based on that that there was a resolution that that ran contrary to the employee's interest and she interacted is so filled with due process for that employees protection and rights because it includes a stamp in the grievance an arbitration process beyond the employer's involvement it provides an avenue for the employee to address directly with the union's executive committee which is what happened here why it should proceed to arbitration and be administrative law judge in this case said wells should debate they never told her we're speculating about why they didn't proceed arbitration that's just  obviously events is evidence that they have not scoured the record because ms gies one testified in her hearing that the executive committee told her that she was not protected in complaining about her lunch break or her contract limitations and that's why they were not proceeding to arbitration she had a hearing separate and apart from the parties grievance and arbitration but it's incorporated and step in our in our grievance an arbitration process going you know it's worth it this is exactly what i think the you the united scuse me it's actually what judge edwards has been asking since the american freight decision in this court we need to have a logical t all policy in the n l r b why should that policy be when the employee he wants to go forward but the union does employee is represented by the union the parties to the collective bargaining agreement in the name of labor we're dispute resolution have agreed that bat is the vehicle for redress of grievances and there's no right under alpha beta to insist that i hearing before and impartial arbitrator the parties can resolve that as and that's right but it but if you don't get it does that cut your right off to bring an action here and that's that that's the yes absolutely why should that because the pa can easily imagine instances where the union's interests would not necessarily align with the employees because it's so overt if that's the case just birth but that's exactly why the supreme court has if there has been a breach of duty a fair representation by the union but it's not a matter of being aligned with the employer there's no evidence of that this union we have a very r bust grievance process in our system we are of a trade over thirty to forty cases a year there is nothing in co hoots here they made an honest determination that she was settlement agreement there's an event there's no settlement agreement in this case right of several general dynamical in our case one in front of me nothing there i think american freight i'm sorry sorry then recently settlement in the king soopers case in front of us oh no they they notified the employer yes we are not proceeding with her case that's a resolution i don't ask you whether there was a settlement agreement the answer is no right there is not ok and in the two cases  plumbers and pipe fitters but the but the grievance body did judge garland that the panel did agree that was reasonable and the n l r b proceeded with their unfair labor practice terminations to a suspension was a settlement agreement that's that those are the words of the court right there was no settlement agreement in this case that that is absolutely true and there's no requirement under alpha beta which case does not involve a settlement directly on point is the american freight systems case and and then your honor i'm relying on board law where they have contractual issues merged and they do in this situation they are exactly the same facts the exact same evidence and they are devoted to the parties have been a fair process under l alpha beta to vet that issue and decide whether there is a contract issue violation or not if if they decide there is not step out of the picture that is the whole point of collier deferral and if judge garland if the concern is that well that wasn't that a very important thing to preserve in labor law we have a fair process and it's designed to address wrongs those things that are for betting through our grievances in arbitrary ssion process there's no guarantee of a remedy or a settlement they adjudicate the merits of the client and they did in this case and they told her you were wrong to do what you did we're not going to proceed and try and recover any money for you and there's no requirement under the collier doctrine or any of its iterations before the board or the courts that there a quote monetary remedy invent a thing or a settlement for that matter they made their good faith efforts and if misc eastland didn't like that and she thought there was perversion or corruption within the system that's what we have white block of the sites for and that does not in issue in this case she did not pursue that so you know i said that we started this with confusion i think significant cases than the one presented and plumbers and pipe fitters think american freight is on point oh i think it's completely dispositive you know i was actually a community of union yes absolutely on a union and right lawyer our rights and izing thing that happened here was i think as i said earlier your honor i think our system is even better than that because we do have the committees in step one two steps one two and three and then the employee has a right to appeal directly to the executive board of the union to understand why it is i think it's it's actually at banstead in my estimation and so when they made that decision the contract issue and the b step back you have no more role in this process but the recalcitrance continues they continue to issue these complaints and so let me let me just say that as far as the in force ability of the board's order in this case judge edwards asked for an analysis of what i sa s and he gave specific citations to that case what the board the ala j because the board never reviewed collier based simply said we're rubber stamping the findings of the a the l j didn't even review alpha beta or u s p s she reviewed a motion for summary judgment that the board took up at the time and re mandate because they said there were fact issues that is place the expanded remedy issue yes it's a pretty important issue here and you haven't even and i guess that i agree i think the supreme court has decided this and you had decided that the case that was on review the southwest health care and southwest ambulance case and you know this idea of invent enhanced remedy was laced solomon's idea and this complaint and you all have decided that that violated the law that appointment is a temporary appointment talk about the merits of the argument i'm sorry about the merits of the argument not the point compensatory measure there is no board authority for doing so but especially when the lay solomon was told that he is not sitting and say again that issue is not before now the appointment of les solomon is not before i don't know i agree please address only the question of whether the remedy is legal or not and i say that it is not because it in the enhanced throughout the remedy is nothing more than a windfall it's not a may call remedy and the whole point of it was to redress according to the board to deter employers that's punitive damages that's the subpoena they opposed it and said no we're not going to have any hearing evidence on that because because we have the right to promulgated this this rule and they said and this is a perfect case for having this rule because they have wrought havoc on this woman's livelihood that is punitive damage language that is not authorized by this statute so for all those reasons that remedy is unenforceable compel a member miss mara to send goes through four different examples yes the fourth example is the windfall you're talking about yes the third example is one he says it might be acceptable do you think that the third example violates a statute or just as bad policy the only argument i we don't know in this case whether the fourth one apply here or not right we won't know until the compliance proceeding well with right and i think that's right your honor but the issue that we're trying to address is it's  entitlement to those damages not what the calculation is well if it doesn't if the calculation doesn't fall into category four we don't have a category four problem so my question is what would what is wrong  with waiting until the compliance proceeding to term and whether it's a category four that is f one through three do not accept it themselves violate the statute but may have policy arguments which will we have to resolve but assume for the moment we resolve the policy arguments against you is there anything that wrong unlawful and appropriate beyond our power to put off the question of whether the windfall example is lawful unless we have a windfall example in front of us there's nothing wrong with that your honor but i would suggest that if if the first premise of my argument is the complaint is dismissed again for the labor board i will start with talking about the remedy because that's where we left off in terms of the remedy here this is not an enhanced to remedy this is a change to how search for work in calculated and that there is no cap based on a discriminant he's interim earnings why not why not cut off the search for work expenses at at a windfall see what the board here said is that they they want to treat search for work expenses like every other type of make cloverleaf so for example if and in there there are other windfalls like i guess i get that i why why create yet another one when we have a chance to fix it i mean that would resolve the question wouldn't it not punitive in that case it isn't a win for ed it's certainly not punitive inaccuracy in any case but the quote category four case however here the board is treating issue has been raised and i see a very in terms of this idea though that an employee could go out and make significantly more money from a new job than from the job that they were on monthly fired from in that instance but it took them some expenditures to get that new job making this additional money and that's the situation that seems to be causing concern here in that type of situation with other types of maiko release such as health insurance benefits if an employee goes out and get another job where they're making significantly more money so there's no back pay wages due to them for example but they have to buy their own health insurance they still get reimbursed by the employer for the health insurance benefits that are part of their make whole relief and this way search for work expenses are treated the same as health insurance benefits or any other type of maiko relief and and that is one of the main reasons that the board cited here for want to change the way these expenses are calculated to comport with other types of make overly you're not setting the premise of this is a windfall and category four right that's correct you think are very different categories of injury one of which is expenses and they're the amount of money at the expense of the costs of looking for work right what they've said and what they have lost out on what about the possibility of waiting to find out whether this is a category four issue or not i take it  board thinks that this is a relatively unlikely hypothetical is that right and i i mean the bush hasn't taken a specific position on the likelihood but but that's true i mean the board stated in its decision even if the type of situation were to arise the board still felt that making this type of make whole relief consistent with other types was an important purpose under the and the problem with our waiting until there is a compliance proceeding so we may not have to decide this question no your hon not it is in this case there is a remedy now as a matter of law in the board's order objection has been taken to that remedy in the board or to try to say why that remedy is important bill by this court but of course we do mutual resolution whatsoever of this issue there's nothing mutual about any there there's no settlement and there's no informal agreement between the union and king soopers over this issue it's simply that the union where did we ever say the house t dispute this is the way we're going to proceed with it and we all agree on the union can faithfully say no think so or this process it goes up and she can appeal it within that process and if there's a br duty of fair representation that's what you clean and out of there is one i'm not getting your honor here the judge applied at higher and applied the united states postal service case which is the exact situation that we have here where the union refused to process in place greatest arbitration there's no evidence the refusal  a right to present it to the union representative for consideration and if you follow the procedure was done no at and your honor a to that's part of the problem that the board found here thank you herself has no right to arbitration she anything really talking about contractual claims and so the question is what is an orderly reported to the contract for running an end the overriding unfair labor practice issue here is or can be in down in the process then you would see that is there i don't know you're on if the judge would have seen that a different i know you're trying to understand your th helpful i mean i'm not fall i don't get it there was no evidence that the union did anything unlawful so the only thing you're missing then is the union has to say incidentally when to anything unlawful and we found no merit so  we know why the union didn't go because i didn't think there was any merit which answers your question i would still say that speculated that we don't know we know that the union heard certain things about her claim and there were questions we don't know everything that was so they're essentially saying try with the board as distinguished from the union is saying that you we've let you take it all the way through and we're not buying it we don't think you have a case here and we're not making a merits a termination not going to pursue another company has certainly given its answer on the merits and the union doesn't disagree with that answer on the merits plus i can see where you saying that isn't there at it and there so that's really your only answer to me that's the only way you can dispose of these other cases right well in terms of kind of the other cases that i mean there were new to the revenue let me let me just ask you one thing because i like the i'm sorry interrupt i don't remember the answer to the question did the board say either the board or they all trade that there are a for me they say that's what bothers us the union hasn't said they found  les paul so it's kind of garbage the way it's written so i'm asking you more then don't just say ok u s postal so i know what you're about to go don't go there ok all right we're together so now tell me did the board say our direct answer to a question what did the executive board tell you as to why they were dismissing your grievance the answer again because i should have went to sack the groceries without asking about my lunch or my contractual rights that i should have waited until i sacked the groceries and then filed a grievance so she fully new business speculation which that alle j said if that's her term speculative it's not speculative at all and the board did not analyze any of this they have no reason the opinion before this court about why they did it why did they do that because they said the primary issue in this appeal is the remedy  they never scoured this record the way they should for this court's review and skordas so held on many occasions the final thing i would say is this reference to the u s p s i think i pointed this out yes the one that the ale jay cited to your honor and it's not the one that you directed the board to take into account the three hundred n l r b number twenty nine minutes it's three twenty four