union confidential information about its subcontractors the starting point for this review must be the longstanding bargaining agreement between the parties which gave the company the unilateral right to subcontract meaning it was not a mandatory subject of bargaining and therefore there was no duty to provide information about that subject during the life of the agreement there's a series yes or press which is article twenty  yes and it it starts with an important preamble that it contains a bunch of restrictions on sub contracting then it says none of these applying during the life of this agreement unless there is a layoff there is no allegation that there was a layoff there was no claim by the union there was a layoff none of the information requested sought information about a layoff so again that's our starting point to get up there and there's been a series of cases decided by the board beginning with detroit edison the one thousand nine hundred and forty the board decision not the supreme court decision of the disney land case ethicon they all dealt with sub contracting clauses very similar to this case not mentioned much by the board or the ministry of law judge unilaterally reserving the rights of the company t subcontract in those cases not mandatory suppers marketing and so requests for cost information by the unions and all of those cases were rejected somehow they were allowed to do it here the thing i'm struggling with in that the n l r b brings up is your failure to put this front and center what you do in your brief here it's pretty clear you say we don't have a duty to bargain it seems to me it least in front of the a all day i know you don't personally have to raise the in front of the ail day you don't put that problem center in even in prague of the board it doesn't seem to be the main focus of your argument and why isn't it forfeited at this point  well st there's been no holding by the board that it was for and for tenney purposes the company clearly did object to the board about the ministry of large judges handling of it the footnote one that the general counsel relies on is not a holding  board one member of the board said there was waiver the other two members gave a speculative even if it's for sake of argument approach which this court has said is not a holding but if there had been such a holding your would have been wrong because the trial counsel did raise the issue just raise it in a different way i would submit he was emphasizing beginning with the answer that it was a not a mandatory so i would to bargain and therefore the request for costs information  legal interpretation write their contract yes to which you don't defer to the board ok and so why isn't there looking at the letter agreement it self it seems to me the letter gr t towards the end that implied it least there was some obligation if all you were doing it was meeting in discussing why would the letter agreement have all these consequences and set out all these in the event they failed to discuss that here's what you have to do in the event why would all that matter all you're doing is meeting and discuss because well for two reasons st combined at the end  the statement nothing in the above should be construed as constituting minimum staffing levels and it is understood that any hiring of mainz employees would based on business and facility maintenance needs as determined by the government i understand that and then is the next sentence that you've mention right so they're close to the and the answer is that this is brought out very well i think in the amicus brief this is not just the company's concern this is an industry wide and a very business wide concern meet and discuss agreements are a common practice when the parties have concluded negotiations and they are at loggerheads but they said all right we don't want to have another dispute we want to end the strike that was going on so we're going to leave the bargaining agreement in place but what vent will talk to each  the meantime and they've added that if there's a dispute about how well we're talking to each other we're going to go through a dispute resolution procedure which he in did not even exercise here this is the real concern the  that applies as we're doing a legal interpretation of what i mean discussed means it seems to me and tell me if i'm wrong the th circuit saying it doesn't mean duty to bargain we just pretty compelling for the six circuit right so we accept that as well but the point being that the starting point is the actual wording the judge the administrative law judge threw out the analysis every time somebody used the word discuss the judged arbitrarily changed it to park beginning with the letter agreement but also in exhibit three the general counsel exhibit three the union's letter seeking to open discussions does not use the word bargain but the judge says that the union sent a letter asking to bargain the company responded once again not using the word bargain the judge says the company responded to bark this is a distortion misc statement by the judge of the record it once there the shock wore off that the judge had totally blindsided the parties by saying that suddenly this meeting discuss agreement was actually a bargaining agreement the company recovered and said so the board this is wrong that's all you can do with it when a judge does something like that that no one had contended during the hearing itself that it's in on the same wavelength as judge moore it wasn't one of your you know initial arguments are the one that you pushed i mean it was in there but it was over leak i mean right because a bit but it wasn't the real point of your pre was it it was one of the points unfortunately section ten easy does not require that there are a number of cases says just has to put the board on notice there's no requirement that it would be the number one argument and you know it we could all say would have been better to make it the number one but it was and i would submit it really is and i'm going to get to the relationship the relevance of the contracting information that they were seeking all of these cases and a lot of the work cases they don't talk about do the bargain they just say because it's a non mandatory subject to bargaining this request is not relevant to it because it's you're up against a wall you could say the costs are x the costs are y high or low it doesn't matter that's what we're struggling with this all of this could have been averted if you've got all these other arguments that are we in my opinion more troubling for you but this st one seems like if you presented it properly we wouldn't be here well hindsight's two thousand and twenty i didn't do the the really saying is that the cost information being requested does not change the fact that it's not that the company has the unilateral right to do it regardless of the cost and in fact detroit edison had a you had a duty to bargain then i think isn't it more difficult for you because then the cost information becomes a whole lot more irrelevant yes i have it and feel day all day operate i'm sorry to interrupt you but be a all day operated under the assumption i think we all agree that you had a duty to being paid and to the union to the union could point out that employees could do the work or not when you look at the letter that they're supposed to be operating under which still not talk about cost a talked about efficiency efficiency is also a word that is to find that it means to produce something without a lot of waste that's not about cost the company explained what it meant by efficiency which is they hire some contractors to be able to expand and contract their work force that has nothing to do with costs it's inefficient to have a lot of people standing around whatever they cost standing around because they don't have enough to do and the union never addressed the efficiency issue and i wanted to reserve my three minutes but i defer to your judgment if i don't want to stop in the middle of refusing to provide information relevant to the union statutory bargaining duties in this case and substantial evidence supports the board's findings that the union requested so contracting cost from the employer those were relevant to the union's bar duties and that the company failed to establish its confidentiality defense and it we agree with all that doesn't it come down still to this question of whether this letter agreement imposed a duty to bargain on the company in the absence of a duty to bargain your honor the there would be if there was never any duty to provide info in the st place than the that would it would come down to that question but in this case since that was never argued that argument was waive so here the company never raised the argument to the administrative law judge and there is case law saying that the board is not required to address arguments that were never raised at the hearing but they didn't but the board did so walk me back per nd i understand what you want to argue is it a we will interpretation for as to whether discussed means barking in other words is that a legal question that we review as a legal question dunno but or is it something we look at for substantial and i think that question is not before the court i think the question was waived i think labor practice would be within the board's jurisdiction to decide in the st instance which had never had the opportunity to address the arguments interrupt you but i thought the six circuit supreme court and every court i've ever seen has that matter of contract interpretation no matter who they're in front of when they get to your questions of law and legal interpretation am i wrong i'm not saying you're wrong about that your honor i'm saying that this is an unfair labor practice and that contractual interpretation is part of the determination of whether there was an a j that there was no duty to bargain all the surrounding circumstances of this case showed to the judge that there was indeed in fact actual bargaining over this issue the contract itself says the parties will meet to discuss the contract and costs they actually did meet to because the amica is right clearly indicates no and your opponent clearly indicates and so i think more questions important one is where is that tape the board never very representing yes your honor so the board has chosen to avoid answering this question in the briefs for instance the briefs do not say oh here's a case that says meet to discuss the board said oh if you're going to go down that route court please send it back that's correct your honor yes the board that because this this issue that they are now raising on appeal was never raised before the administrative law judge it was therefore weighed waived because the board is not required to examine arguments that were never raised the judge but but the problem for the board on that is i to bargain and that this article twenty of the collective bargaining agreement gives them unilateral control over contracting that was never raised at any point before the judge they never argued it's the journey and so the board in its decision decided not to address that issue there's the waiver because they refused to waive it they refused to raise it to that they did not raise it to the judge the board found waiver of that argument because it was never raised in addition to that the company failed to object to the board's finding of waiver we find they wasted sufficiently have you then waived the right to respond to their legal argument by not responding no we would request the remained to examine the unfair labor practice issue in the st this is an address their arguments if the if the court found that it wasn't waived and the court finds that they're not sure it's actually barred which under section twenty this court is you're essentially barred from reviewing their arguments because the company never objected to the board's finding that the arguments were waived and there's th supreme court case law your honor that's that's well that in order to preserve an argument before a court they have to object to the board's finding in a motion for reconsideration here the company never did  opaque as to what it did because they did it all in one right the board has this footnote number one which the chairman ring focuses on waiver and then there's a nd paragraph contrary to the chairman we don't agree that this would amount to waver but we also by no merit to suggest that the greenman may not give rise to was raised to the administrative law judge that argument being the no two to bargain argument and then the majority goes on to state contrary to the chair we do not agree with the facts he describes or anything on the side of me that side agreement itself would amount to a waiver even had such an argument been properly raised to the judge so what you have here is three the unanimous three member board finding that the argument was never raised and then not addressing it but addressing it only addressing addressing the argument of no duty to bargain on the merits in under the hypothetical that well this is what we would decide if it had been raised but because it wasn't raised we're not going to decide the issue and that's what the board did here in finding waiver and the company if they were upset that the yes your honor sorry there's in this we also find no merit to his rings suggestion that the side agreement requirement to meet and discuss the preservation of bargaining at work may not give ri no duty to bargain in this footnote the board found those arguments waived and that's why it doesn't go into addressing the particulars of the kinds of issues that the company in the  don't see this and i'm sorry if i am being apologize the majority says contrary to the chairman we do not agree with the facts describes or anything on the side agreement that would amount to a waiver even had such an argument been properly raise to the judge whose waiver they're talking about they're talking about in that the waiver here they're talking about whether the the companies argument essentially is that contract the collective bargaining agreement contained a clause giving the company unilateral control over sub contracting that the union waive their right to bargain over the issue of sub contracting and therefore because they had no right to bargain the company had no right to provide that information and so when the the board here is talking about waiver they're talking about waiver of the union's right to buy the weaver by the union to bargain over sub contracting so a motion for reconsideration an objection to the board's waiver finding or a clarification of this footnote the company never did that and so they're raising this issue now for the st time on appeal objecting to the  considering those issues and that's what the board would argue here your honor and in the event that this court determines that it stopped jurisdictionally barred from examining this issue we would request to remain to decide in the  st instance the duty to bargain arguments that the company in the making not raise on appeal but if you look at the record as a whole including the entire transcript it's clear that the company never raised the issue of n to bargain they focused their arguments pacifically on confidentiality and the issue of relevance they cited three passing references that are insufficient to put the judge on notice that they were raising a no duty to bargain issue and in any event the board was well within its discretion in finding that argue that those arguments waived for failure to raise to the ministry of law judge and again this court is barred from examining those arguments because the company never objected to the board's finding of waiver  in a motion for reconsideration and on the merits of the case the board had substantial evidence supported the board's finding that the requested subcontract and costs a motion for reconsideration in that circumstance yes completely different situation and well being and the us postal service your own decision explains why he is board creating a new remedy here where and this is what u s p s says where the board is merely responding with a reason why are an objection the employer's objection is being rejected that is not a new issue it is a response to the original objection and that's what happened here  attorney has no application otherwise would be a never ending ping pong match every time the employer says something the board says no you have to file a reconsideration from saying no because they depending on what reason or the union i mean that's where the union right but well all right so let's get to the question of i guess and the general counsel has conceded in this brief and just so you that if he's unsuccessful on the waiver argument then he loses or at best and the industry sort of feel entitled to be fair resolute get the issue resolved about meet and discuss we want to use these in the future and it's frankly harmful to unions not to be able to use them so we are concerned about every man but our primary concern is that there is uncertainty about what to make of what st of all there's a pending board you know order that we turn over this information subcontractors around certain whether they can count on their confidentiality be of  whether the company is going to be required to suffer the penalties of compliance and they want to move on and so they're entitled i think to a resolution a resolution of course in which the board's orders tonight in force problem and as i say we leave it to the courts discretion which is better but in our experience where the board has come to you to enforce its order it's order is an enforceable end of story and there's no reason to prolong the soka it would be our main view but certainly every man is preferable to enforcing an unforeseeable and we were glad we're talking about the choice between perhaps simply denial versus re man but they have conceded here's the here's the other problem the board had its opportunity and they recognize that the issue is in front of them just remembering outlined in fact things that the company had said but said well you didn't tie it up in a pretty bow and to present it to us on a silver platter and so he said you haven't done enough the other two board members did not say that if they had wanted to say that very simple they were said we agree with remembering on the point about the waiver but even if we would have said this other stuff they forgot they didn't do that they did not sign on and that's what they typically do when they agree with pardon not off and so they clearly there is no board finding a waiver regrettably the board does often make these rulings upholding a judge and then footnotes that are sometimes incomprehensible the courts have rejected those kind of rulings the courts have no i don't think usually remanded they've usually denied enforcement but i haven't understood siskel survey on it and so each case is somewhat different but we think in this case what's critical is and i think it's been demonstrated today in force