case number four seventeen zero one two seven four sixteen zero eight two seven i would like the parties to step up and identify the representing state your name please those who will be arguing thank you different than the cases for national labor relations board that they relied on counsel let me ask you this so we know there is the tap case with which is would think applied to factors in that in the past is it your position that they are allowed to elect to apply a different tats well it's our position that first of all that they have to explain why they're doing what they're doing in this case they t the critical issue in past tests as applied by other labor ports includes an evaluation of the tax factors in product for it so it really doesn't make all that much difference even though as you correctly and that if you apply the critical issue in past test correctly when you get to the third prong which is there has there been an impasse over all a negotiation you have to look at what's in the tap factors and as i'll talk about in a couple minutes you have to look at the that are of the contemporaneous understanding of our lease and you have to look at the package of the overall good faith of the parties including whether the parties have committed any unfair labor practices on the important issues in the to the facts in this case and if you look at the federal cases that we cited in our breed the national labor relations board has often been held to exactly that type of standard in the courts of appeals of the united states bargain so that we can take appropriate steps to protect their legal position it's usually not the case to book him for trial court and that's why ministry of agencies have a special duty to elaborate on the reasons why they're doing what they're that critical issue led to a breakout in all of the negotiations and when it looks at number three the kel tec hastened every other case they had heels with the single issue in past issues that were sort of change i want to go in reverse order i'm going to first look at the issue of whether there was any evidence that the impasse and some contracting presented bennett progress in other basis of the direct examination and looking at it from the perspective of a trial lawyer i think it gives a hearty and norma's advantage for the lawyer to be able to write the direct examination because we can all think of cases where we were trying them in and boy didn't come out the way that we play in for about and so i think it's at this point it would be piri difficult to go back and unscramble the eggs  say we were prejudiced because there was no testimony to x or y or z i'm sure i could do it because you know i was there for the all twenty five days i think it's really important for the court to know at this juncture after we've had our ten thousand page record to indicate what it thinks of this siege because i think it's a wrong procedure to employ at the administrative level and we don't think that the poor have even the authority to employ it under house you have to show that the impasse on some tracking prevented progress on the other issues on the table and as the court pointed out when it issued the stale order in this case in march one twenty seven team there was no evidence that the union ever said he had up on some contract in or else we're not going to give up on other issues and there was no evidence that central management services either beginning to spread over twenty fifteen leading all the way up to january twenty sixth and and it did not say when it presented any of those packages that were done that this is the fire this week that it had room to room to expect that they will assume that they will say so there is no benefit to either the process or the either side or for the desperation of him as to be a surprise second i think it bears on  whether in terms of bargaining policy what do you want to have the rules of engagement be do you want the parties to know when you're getting close to him yes he was one side to say hey we're close to our bottom line what your bottom line or do you want that to be a surprise at the end of the day and i think where you're talking about a unit of forty thousand state employees you should have rules that then go against the element of surprise as opposed to rules that permit one party say hey remember that proposal it's never well that was as far as we can go you know we haven't told you that for the last four months and we want to declare impasse over there we don't need for some sort of indication reaching the end point here you think this particular case while there were twelve packages there were really about twenty different issues because of the way some of the issues were package and sound like things move somet any specific case without knowing the facts of that specific case in in the instant case the parties were actively negotiating about a lot of different issues at the same time they were negotiating about some time clearly erroneous and so there's lots of it it's that the fact that the parties were had differences of opinion over the issue something i'm tracking wasn't undermining their ability to bargain about the other issues that were practically everything else break out now another point in the single critical issue test is the point of whether the issue is really critical in par don't if we were to still apply the traditional taft fine factor to us the result would be the same but we're indicating the who's force we're going to be using the single critical issue to us we just want to make actors are the factor the contemporaneous understanding of the parties and the good faith of the parties now on the issue of contemporaneous understanding the hearing officer specifically found that when the  always say they're shocked you know i didn't ask well that's not exactly what they said but i'll give it to you exactly the way you put it and the problem with that is that that comes from cases where when they said the next satins well if you have any more proposals answer was no in this case there were proposals made that very morning that had never been responded to and there were other posters that had been position that if there's a wide difference between a case where somebody says don't stop now i can pick up something more to say and a case like this one where proposals have been presented very moment and the things that they claim that are critical issues such as wages and insurance you think good faith in you both actually and legal steps how wrong three has been in asked for a list of the criteria that they thought they would use to determine who was a highly performing employee for the purposes salary we asked for the cost savings that would be generated by various changes to the insurance plan such situation where a minority group was underutilized we ask for them who are cost out the savings that would be achieved by our proposal on vacation because our proposed on provided supposedly not responded to with respect to the high performing employees was there one point in agreement that the parties would come together and determine those factors in determining that there was a j ok and their statement that they didn't get this information is a little bit disingenuous because they told the state over and over they would never agree to america not that so there the part on attendance in part on some other factors they wanted some additional information with regard to high performing employees i guess the point that i was making his it's not really bad faith are getting when you don't get that information when the other side has said we're never going to their position is total obstructionist so i'm not going to provide the information that they need to respond to good faith if they were going to do it right in the a l j and the board found that the non provision of this information is not what caused the employees which you again acknowledge you yet never did while there was some information provided on employees and what the qualifications would be to qualify for america pay first of all the merit pay program was something that not every employee had to participate in if you didn't want to be entitled to receive the merit pay you didn't participate in this program it was an optional thing that employees do secondly this is the state gave them information with regard to attendance and other factors that would first of all the of the the the single critical issue pass was found in this case because i don't think it's any question that it's a critic of the subcontract was a critical issue and it was found to be an insurmountable obstacle to ever getting an overall agreement when you have a problem between the parties that's an insurmountable obstacle you're never going to have a collective bargaining agreement between those parties but this court can affirm for any basis in the record that's what it how  c m s case ten years ago in a on a administrative review from a labor board decision and the record clearly show us that the parties are also the impasse if you apply the taft factors because four of the five actors were found away in favor of impasse and the law is clear that it's the totality of circumstances past assamese argument that the fifth factor somehow trumps the other four factors has no basis in the law their argument that however the factual finding also says size that the you well pieces that were committed in this case are not what caused the impasse between the parties so you well pete the relationship between you all ps and  passes follows nobody should commit you all ps however you will feel only prevents impasse from taking place if it causes the impact and the factual record here which the labor board accepted establishes that it wasn't the ul piece that caused  now the waiver board hung a tad on the single critical issue because it was so clear that subcontractor it was an insurmountable obstacle that's what they said to have a reaching an overall agreement and therefore the parties needed to be have a declaration so they could apply a little pressure to one another so they could reach a final collective bargaining agreement that's the whole point of impact council what's your response to opposing counsel's position that they didn't explain and they're required to explain the basis for their finding of an impasse using the single bit of how to judge the a o j wrote i think a two hundred fifty page opinion the labor board wrote a twenty some page opinion adopting virtually all c circuit said was the basis for the third factor which is whether or not the whether or not the impasse over the single critical issue creates an insurmountable obstacle so and they found he had never used this  replacing the taft test with the single critical issue test those two tests look at impasse from different vantage points the single critical issue cast looks at it from the standpoint of asking whether there's a single issue which is which creates granted right and they have the power to appoint a o'jays to hold hearings and it's a tremendous advantage to the other side because here's what usually happens a trial usually a trial the witness gets up you've never there's no there's no discovery there's no got positions you have no idea what the witness is going to say you hear for the first time what the witnesses testimony is you scribble down notes you try to cobble together a cross you get up to a good cross here you've got the director thirty days before  the system go because judge in this case the state was losing twenty five million dollars a month because it couldn't implement its health insurance plan so what we presented to the labor board was an affidavit from c m s benefit sank we're losing twenty five million dollars a month we need to move this process along to save taxpayer money in this case that was the only reason we did this and say if i would this is presented the direct i'm looking at here i understand the a l j said that any party that wanted to do this could do this and asked me had no obligation to do it if they did one really question it wasn't it wasn't said we could do i don't see that there's any prejudice to them as a result of having our direct testimony thirty days at a time when we had minutes before they stepped up on the city and say you can stay for twenty five million dollars a month so the stakeout delay did that if it could have implemented its last best and final offer which is what i guess a lot of my point what you're saying they were losing was based on what you were proposing to do with the health care yes nice it would've been nice if we could have depositions or any of that advantage look at what they were going to testify to i did not ask in the end i don't think that that they were harmed and we were just trying to save the taxpayers money  so the power cord should affirm on of the single critical issue task because the labor board correctly found that the impasse over sub contracting was an insurmountable obstacle and the labor act itself expressly authorizes the labor board to i'm going to quote here develop an affection wait impasse resolution procedures and the board did that in this case by applying well established federal law as the supreme court has previously held the board should do thus the board's finding that the first asked me did not argue before the ail day and they did not argue before the labor board that the third factor of the task requires the application of the test factors respectfully that argument spent way court did apply those factors he ultimately question on the third factor is whether or not the impasse on the critical issue creates an insurmountable obstacle to the parties ever reaching an overall agreement it's a little bit like if you went into a car dealership to buy a car in springfield you have to live here in the summer time and that and the car dealer said we don't have any cars with their commission but you know i can make a deal for you on the radio you'd walk lot because the lack of air conditioning is an insurmountable obstacle to buying any of those cars you've got to be cool in the summertime and that's what the labor board found here under that single critical issue test with all due respect they waived any argument about the calf  one this court in two thousand and eight sad calls it can it quote can affirm the board's decision for any reason the record discloses rather godless of whether the board relied on that reason and that's this court's r the case requires this court to determine whether once you decide this case i only have two minutes about whether it will continue to even be possible you know on oil for public sector employers to reach impasse with their collective bargaining partners if the state asked me or not impasse in this case after bargaining for sixty seven days the longest in their thirty year history reaching impasse on multiple issues some of which were found to create an insurmountable obstacle to reach an three billion dollars apart the last time you gave so that if you go shelter now not after sixty seven days we were not we were not asked three billion dollars part we had a deal last we had a deal last part of what you were we've gone into this at length in our brief it's a complicated thing but i will say that we provided them with a huge amount of information if if the question is with regard to health insurance we think first of all they did they waited almost a committee to exchange information they didn't want to do that injured finally in september the parties formed a health insurance committee for the purpose of exchanging information we exchanged a lot of information on health insurance they claimed that there was some additional information that they wanted they didn't receive it wasn't and i mind material there had been substantial movement on health insurance from their side and on top of  check this but my recollection is that we got the test we got the affidavits on thursday and friday and started the hearing the next monday and so in the way shape or form did we have that link to review complaint was issued in march a pretrial order was to just a couple weeks later where we had to identify witnesses and exhibits we were in hearing by april we had twenty five days of hearings by joe and  you would be hard pressed to fight any under labor board hearing that was conducted with the were pretty that this was from doug so i don't think we were the beneficiary of it  and again i go back to what i know is a trial lawyer i have seen witnesses get it wrong many times both with me and with opposing parties and direct examination and i think there is a reason why you have a preference for a life finally i would like to cite to the board of quick notes sixteen of the decision of the labor board in this case on page sixteen it says in choosing to adopt the three factor critical specifically asked for information that would allow us to make proposals to save the state one that was done in december they asked us to read or relate the request we get that we stood up the hallway chief negotiator  i have a copy of the letter that you see regarding division of time and under that agreement and i believe the way you have it set up today you would have an additional five minutes  read it out of the law oh ok to in doing so to cosign public employers and their union counterparts to collective bargaining without even long after it is clear that no deal can be reached by further talking a all due respect to develop and effectuate impasse resolution procedures that's their statutory authorization if they and their wisdom believe that a test which has been used in the federal courts for decades would be effective as an impasse resolution procedure then this court should respect and give deference to the labor board's adoption of that task and the supreme court has said that it's looking at him so it's we don't have to decide today whether both pass would apply in all cases it's at least in my mind conceivable there might be cases in which you would use one and some cases where you would use the other so no one's abandoning the taphouse no one strong out thirty years of legal precedent here what they're saying is they were adopting a task that applies under certain probably limited circumstances when impasse over a single issue is so great and that issue is so critical that the parties will never be able to get to an overall agreement it's like the air conditioner that they were found explanation doesn't fire illinois supreme court  took a little different view of it discussed at length all of the federal decisions that apply and they are authorized to come up with these impasse dispute resolution procedures by statute and this court should defer to them when they use their labor expertise to do so and not second guess