good morning you may please the court this who are held in like cells that if an employer remains firm on one or more essential issues and declares a final offer that is consistent with and logically follows from its bargaining position the union's failure to agree creates an impasse and that's precisely what happened here even if you accept nearly all of the board's basic findings of fact  l j himself characterize this as a major issue dividing the parties and indeed it was the day before impasse was declared the union's chief negotiator said that ingredient had to put its proposals in the format of the expired contract for there to be meeting full discussions and he was absolutely right about that by august eighteenth the day that impasse was declared the union had requested and voted down a final offer and they conceded on only one of its original proposals its proposal for herbal tea and stirs steps moreover the only thing that the parties agreed upon was that they other facilities and in response the union presented a new offer but critically it didn't meet ingredients proposal as it was in the format of the expired contract at this point under this court substantial evidence it was based on the l j's intuitive believe yes after ingredion presented its final offer the union made concessions but critically it did not make a concession on the no your honor you know i'm just trying to make you oh well the parties met for ten on ten separate days prior to the declaration of the last best and final offer and in that time our client ingredion made a series of concessions on on a number of substantive issues yes but  prior to the declaration of impasse that's correct they made a series of concessions but critically the union did not move on the one issue that had led to the impasse that yes the format of we are contesting the board's ultimate findings in its reasoning there are a couple of basic findings of fact that we can test that are not supported by substantial evidence but it's alternately the reasoning duty to continue to negotiate in the face of the unions refusal to meet our proposal would be to privilege the unions proposal over ours as they insisted on bargaining from the expired contract and we likewise in turn insisted on bargaining from a new form of proposal both parties were the title to hold those positions and to hold otherwise would be to improperly insert oneself into the middle of the parties negotiations that's our essential position now else for the question of good faith really and generally desired to reach an agreement as i said the  found that the parties met on a regular basis from june until september ten separate days before the declaration of impasse and then three more days after that in that time they discussed a variety of substantive topics likewise the l g found that ingredient made a series of concessions in fact if you look at the general counsel's own demonstrative exhibit tracking the proposals which is general counsel exhibit ninety two i count some fifty changes that ingredient made along the way which again is is in can contrast to the fact that the union gave up on only one of its original proposals let it go badly and has question for a second so the your view that once  declaration of impasse is happen that the board is read it and taking into account anything that happened after that for purposes yes your honor for purposes of determining whether there was an impasse so no matter what happens between the  turn a blind eye to correct and then makes sense because yes you well know not not turn a blind eye to it it's relevant for purposes of determining whether the impasse has been broken but not whether the impasse has been reached that's how i read this court's decision in erie a brush and moral bay it makes it seems to me to make sense that that if the evidence shows up to the point of declaration of impasse that an impasse has been reached it doesn't make much sense to go beyond that to determine whether an impasse had been reached in the past it makes sense for determining whether there were changed circumstances such that the impasse was broken which is a different issue but not whether the impasse was reach so going back to the issue of good faith the final point i want to make here is that our desire to negotiate from a new form of a contract was entirely appropriate as the l g himself found on the first day of bargaining ingredion explaining that it wanted a new form of contract so that it could intergroup the cedar rapids facility into the rest of its operations and the wall a court explains that that's a perfectly behalf of the board i'd like to begin just by taking a step back and for sizing the boards ultimate finding here which is that ingredient failed to carry this burden of us that was saying that in past existed as of september analysis of what occurred during bargaining from appendix number twenty one ninety five to twenty two zero two ingredients not directly challenging most of those findings of fact as to what occurred day to day during the bargaining  in support of the board's ultimate finding to turn to i guess one of the main issues that ingredient is raising regarding the format of a contract proposals as the board explained that was not an impediment to something to a bargaining in this case very early in the bargaining the parties agreed that they were going to continue to present their proposals in this particular format incurably that did not prevent them from making further progress because both parties continued to move up until until the critical issue is resolved and ingredient has not made that showing in this case particularly given first of all the facts of the case where the parties did its need to make progress and incorporate language from each other's proposals and to summarize you tell his proposals relative to the baseline format of the authors secondly and brianna's not present in any case in which the the format of the proposal at the bargaining table would be a critical issue that would  for proposed changes to be presented in this format of an entirely new agreement first of all because that was difficult to track what was actually being changed from the expiring agreement which was rooted in seventy years of current history the the union made that point early in bargaining an additional point that the union made after the employees overwhelmingly voted down last offer was that the union said to the employer we think this is counterproductive and the employees are no or less likely to agree to an entirely new contract which is just presented as you know seventy page document and it's not actually track for example in red lining what is being changed from this established expiring contract so it was not a substantive dispute over what the final contract had to look like or substantive dispute as to any particular term of the contract it was this it about how the bargaining would proceed at the bargaining table and gre not made an argument or cited any case law that that could constitute a town that critical issue that would prevent any further bargaining over something to this and that would lead to the impasse and again to reiterate once more  ingredients offer regarding agreements process and default proceedings as to when grievances are filed at this august eighteenth bargaining session is counteroffer the union also made substantial concessions at appendix three thirty five by dropping one of their main initial proposals which was to reactivate a cost of living adjustment that would tie wages doing priest cost of living increases at appendix three thirty six the union drop a few dollars an hour raise with regard to training which was a substantive demand they had initially been making yes and that's what this question which is if one if the employer says there's one issue that's more important to me than anything else and it's this one it's make or break for me i'm not going to negotiate over this this is what we do everywhere and unless you agree to bend on this issue there's no point in going forward and then the union comes forward after that think in that situation it would be reasonable for the board to find that there still was no impasse because it one party is continuing to make concrete something to the movement because as the board has recognized and has course never recognized as reciting our breed when you continue to make movement on other issues that has a tendency to advance bargaining and there may be a compromise on this initial sticking point and as to the arguments that implores making industries as to that sort of per se creating impasse are the board's position is that that's sort of a misreading of what this court said for example and myself i think the most reasonable reading of that language in myself is that this court was simply reiterating points that had earlier made for example on moral bay health care and in the true sort of case and what the court was saying there is that if you have essentially a substantive impasse and one party for example the union wants to stave off an  impasse the union cannot simply say you know make a general claim that we want to continue bargaining we're willing to meet again just as an attempt to stave off in that in that sense the parties do not need to be in agreement about the existence of impasse but as  really no impasse and that's exactly what happened here the union was not simply making a general claim to stave off in passing we want to continue bargaining without making any actual movement or concrete signs of compromising applied and in the grass case that can occur but it is a special situation where there is a single issue and has over the single issue means there is overall impasse even if a party is showing movement on other issues  the three factor test for that special dr and the party claiming it has to show that for some reason this single issue would prevent any further movement on other issues so it's possible and in fact it occurs as it did  agreement and so you had you know a baseline agreement the expiring agreement the parties narrowed down the issues they were willing to bargain over the issues in dispute in that case i believe it was  cannot have a pension percentage contribution above this or below this and because they were just at loggerheads over that issue and there was a small universe of issues are being a ghost in the first place this court found that that was valid in past ice recite those to contrast them with what happened here which is that ingredients that at the start we want to open every single article and every single provision in this contract rooted in seven years of barney history and bargain from scratch so the parties were negotiating over entirely new york dream and every single provision and so that's a situation where there was obviously possible movement on other issues before unilateral implementation and in fact the union showed major concrete honors to the parties form was substance by holding that ingredient could not go to in house over the form of the agreement you would be effectively cripple edging the unions that the proper starting place for negotiations is the redbook there could be no further bargaining until that issue was resolved yes they make concessions but they did not make a concession on that key issue that had led to the breakdown unusually the form was not an impediment to marketing but after ingredient felt like it had given it all it had given it it could give it had given the union eight proposals by the time it had declared impasse and in the union had only adopted a handful of its proposals and had relented on only one of its own original proposals at that point really and was was privileged to say we have reached the end of our row and if you do not bargain based on the last best and final offer that we have given you there is nothing more to discuss and as to impasse discussions i want to emphasize that while there were three bargaining sessions after the aug eighteenth kell met footnote sixty s the civically says the bargaining may go on even in the face of impasse and that's totally consistent with this court's decision and sarah matteo oldsmobile and the supreme court's decision in brown vs pro football the parties are supposed to continue to negotiate at some point and even then there were only three sessions two of those sessions lasted only a couple of minutes as found by the a l j and while the one lasted all day it was consumed by a twelve hour clock as in which the union tried to formulate a new proposal and when it came back in it became clear that the proposal was in the format of the expired contract the session was done so the post bargaining behavior could not have negated the impasse thank you your