holes barry on behalf of the petitioner unite here local eleven your honour's in two thousand and six the national labor relations board found that the smoke house restaurant had committed numerous violations of the national labor relations act including that it had unilaterally discontinued making contributions to a health and welfare fund mandated by the collective bargaining agreement in effect as a remedy for those violations of the act the board ordered that on request of the union the employer would retroactively restore the terms and conditions of employment of the employees in the bargaining unit as established by the collective bargaining agreement it also ordered that the restaurant make employees whole for any losses they incurred as a result of the unilateral changes the terms and conditions of employment of these employees included contributions to health and welfare fund and so retroactively restoring that term and condition of employment means that the employer was required to make back contributions to the health and welfare fund that is the standard remedy in cases where an employer discontinues making health and welfare contributions seven wasn't recited in this case that's correct your honor in this case what was reciting it was that the employer would retroactively restore the terms and conditions of employment now according to the board that means because it wasn't specifically mentioned that that includes health and welfare contributions even though that's the standard remedy and even though there are other cases as the board admit in which it is not specifically mentioned health and welfare contributions the board's position is essentially that that term means nothing there are no specific terms and conditions of employment that are mentioned in that remedial wor what is your view about the compliance meeting of the board the four member board would what troubles me about this case would seem that your argument would require of that the board be nothing more than simply a pass through they're not allowed to change anything they have no power to interpret you or your argument seems to be that  you depend entirely on the first iteration without allowing the last iteration to have any impact were am i wrong well i don't think you're correct i just can and i our position is that the interpretation that the board gave to its two thousand and six order is entirely illogical and is an abuse of discretion and certainly even on compliance when  board is interpret ing a previous order it is required to follow its previously only sees and it's required to give reasons that make sense for interpret ing its order as it did well and that's what's the function of that board  don't understand whether you are going to relies on the fact that they have no power to change an original interpretation that's what would sticking in my well i think the main focus on compliance is determining in dollars and cents terms how much is a so that's the main focus on compliance in the board is correct that it may not revise its previous decision on what is included in the remedial order but it wasn't gauge do you have a case requiring making the font whole by the order did not include either a citation to mere weather optical or specific language requiring making the font whole do you have a case that contains neither of those mentions i don't think that there is a case meeting that specification your honor isn't that what we have here we do have that here your hon in our house and so i'm having trouble with your argument that the boy's interpretation is a logical when all the other cases that have imposed the requirement have either had that  citation to me or whether optical or a specific delineation of payment to the fine so how is the board's interpretation illogical if it doesn't meet those two criteria well first of all your honor we have pointed out on the board admits that there are past cases in which it has not specifically mentioned health and welfare contributions right but in those cases there's been no implication a reference by why this interpretation of the two thousand and six order was illogical the first reason is that ascribes no meaning to the term retroactively restore the terms and conditions of employment there is nothing in any of the board's briefing explaining what that is supposed to mean and according to the board the failure to specifically mention retroactively restore the health and welfare contributions means that that wasn't included in what the board was ordering but that would apply to any term and condition one it doesn't mention wages it doesn't mention any term or condition of employment specifically so according to the board this was a null and the second reason why it's a logical  is that according to the board this is the two parts of this two thousand and six order retroactively restore terms and conditions of employment and make employees whole for losses incurred have no separate meaning the one in the same so again that first part of the order according to the board is under our interpretation there are two things that are being ordered the first is that there be restoration of the terms and conditions of employment which the board has repeatedly held in cases like this includes contributions to health and welfare fund except that i'm still having problems with your representation that the board has repeatedly hailed this because it's not in the same context that's the difficult difficulty i'm having with your argument with that where the board has held that the fund is entitled to reimburse who we have one of those two scenarios that we discussed well th context here was that there was an order remedying an unfair labor practice involving unilateral changes in terms and conditions of employment and unclear order hants the interpretation required well your honor we don't think it's unclear it doesn't specifically mention health and welfare contributions but there have been past orders that as the board admits have not mentioned that either they have the citations there that's the new thing that's the problem i'm having i there were indicators in all of those cases that we don't have here and i'm hard pressed to say that the boys interpretation was completely illogical in the absence of either of those indicators our position your honor is that it's illogical both because it describes no meaning to a one part of its two thousand and six order second that the rationale for interpret ing the order as not including health and welfare contributions doesn't make sense in the context of what the board was doing in two thousand and six the only unilateral change that it was remedying at that point was a failure to make contributions to the health and welfare fund the standard remedy in that situation is ordering back contributions that's in the end all or be free that the order is unclear your honor i agree that the order does not specifically state make contributions to the health and welfare fund but i also note and the board admits that passed orders from the board which have been understood to include that remedy have not said so either i also will point out that the  by the board in interpret in the two thousand and six order were completely antithetical to its policy pronouncements in the past it understood itself not to have ordered back contributions because it said well those are contributions to someone other than the employees but the board has held since one nine hundred sixty nine that punter bew sions to the health and welfare fund is contributions that's remedial for the employees and guaranteed for the future viability of the fund it also said that employees essentially only have an interest in the health care benefits that they're provided but again the board has held since one nine hundred sixty nine that employees have an interest in the future viability of the fun you know this is this was before us before and it was sort of understood as that this did in the payments to the wind and then the employer argued to us i guess for the first time that it did that would happen your honor what happened in the first go around when the two thousand and six order was affirmed was that the employer raise a number of arguments that was on the merits of the unfair labor practice and has raised a number of arguments about why it shouldn't have to make back contributions that for example the collective bargaining agreement it changed or that it could make an argument that the parties would have reached impasse and so it would have been able to unilaterally implement its own terms and conditions of employment this court said those arguments are not for us those are arguments that you can raise on compliance but mentions the terms and conditions of employment which the board has always understood to include contributions to health and welfare fund somehow it didn't include that remedy counsel i have the order of the compliance were three to one majority it is very very thorough analysis you may not agree with the analysis obviously but in order for you to prevail it seems to me you have to be able to persuade us that the board had no other legal option other than to find your way and that's where i'm stuck your honor i think that it's important that we're not talking about the board making new policy the board in this  case says that it wasn't making new policy what we're talking about here is whether this interpretation of the two thousand and six order and in particular the reference in that order to restoring the terms and conditions of employment has any meaning at all under our interpretation that reference has meaning under the board's interpretation that was an elegy it had no meaning at all and again the reason given by the board for that choice that choice to interpret the two thousand and six order are completely their policy choices their policy pronouncements that go against forty years fifty years of board law trying to understand is that when this when it was before when this case was before us before it the employer was arguing that the that the i thought made the argument that the order i think what the court was saying your honor was you're making that argument too early which is it's going to go back to compliance if you disagree about what should be put in here that and you know make an argument that the collective bargaining agreement would have changed and you would have stopped making these contributions so the argument was legitimately before the board the argument that specific arguments that were raised by smokehouse the first go around had to do with essential e when the cut off period should have been they were essentially arguing we you know ok if we have to make contributions to the health and welfare fund then you should cut it off because we had already changed the collective bargaining agreement or we would have reached impasse at some point or what have you but i was certainly no argument on anyone's side and i don't think any understanding that the remedy that had been ordered didn't include the standard but you're not arguing are you that the board had no authority to interpret the agreement are you arguing that that was the matter properly before the board we are certainly not arguing it didn't have authority to interpret the two thousand and six order we are arguing that its interpretation of the two thousand and six order illogical it doesn't make sense of the terms and is the monster in the history of the proceedings but you get the i thought the point you were trying to make was somehow that because the matter had been before this court before that there had been some kind of implication that should have down the board in its interpretation not your nomination that your honor that's not the argument the argument is is just that there was no recognition that first time around and in fact there was affirmative argument that this would involve good morning and may please the court joel heller for the national labor relations board the board has wide discretion to interpret the scope of its remedial orders this court has held to such and given the language of the two thousand and six order and the board's typical practice the board reasonably concluded that the order did not include that payments to the welfare fund there's no expressed language in the order mentioning the welfare fund and that is in stark contrast to the board's typical practice where there is in addition to jeanette general language such as make whole relief there is included an express reference to making back payments to a welfare fund for example the phrase that a local le emphasizes here retroactively restored terms and conditions of employment but there are cases cited in the one cited in our brief the one cited in local leavens brief where the board has order has required back payments to a fund has used that retroactively restore language but then has also made express references to the specific remedy here it would say for example retroactively were stored terms and conditions of employment including by making payments to a welfare fund or retroactively restore terms and conditions of employment period the employer shall also remain the contributions to the welfare fund we don't have that language here and the absence that silence is what supports the board's conclusion that the original charge violation one of the violations that is smokehouse unlawfully unilaterally seized to making payments into the fund that is true but i think where that goes is in arguing they were ordered to make everybody they were ordered to make employees whole and they why would it make sense then to say that they don't have to make the payments into the fund now because they didn't the board didn't say that they had to make payments into the fund they these employees have been made whole and that they have been  reimbursed for premiums that they had to pay that they wouldn't have had to pay they've out of pocket medical expenses that they wouldn't have to pay that they would have had to pay but for those that say ssion of contributions that is included in the board remedy and that has been that the employees have been made whole or in the process of being made whole so there is there is a remedy to the violation in the case i guess is what i'm referring to the issue i guess that is the issue but of argument that the ruling was illogical and therefore reversible short well i think as you were getting up before i think given the standard of review here you really has to be completely unreasonable or a real or rather local levin's reading of the water has to be compelled in order to reverse the board in this case but i think the board's the board's order is not illogical because it does it says you have to restore the employees is restore the terms and conditions of employment to these them to these employees and what that means is you have to essentially plug them back into the into the health fund into that  the health plan and then make them whole for the losses they incurred by not having been in the health plan and that is these premiums these out of pocket medical expenses which were done no has happened and so that is that is why the the board's order has meaning in this case it is not wholly illogical counsel what is your response to opposing counsel's position that the board's ordered discount one particular order means and we know that for two main reasons one is that the board was not purporting to make any changes to its policy that this is the that back payment to a fund is the standard as local evan puts it the standard remedy in such cases but the other point is that subsequently to this decision the board has continued to order back payments to a fund there's multiple decisions that have come out in the past year including i would note a case that came out the same day as the decision in this case so the board clearly has not moved away from its policy pronouncements i just don't understand why would they do it i don't see the sense in it and jitter i would say that as i mentioned before that is a fair question but i don't think it's the question before this court whether it should have included such a remedy the board itself acknowledged in its decision here that it may have been inadvertent that it was left out of the two thousand and six order but that still means it was laid out western of interpretation i thought so sorry i thought we were and i thought i thought we were talking about interpreting the order yes interpreting the job as i was it why does the interpretation that the board makes sense in light of its previous history in light of the positions taken in this short litigation before us and in light of the policy of trying to make them whole and keep funds from put in jeopardy right and so it may well be that that comes to a find is the standard remedy but it's not an automatic remedy i mean there is there are no automatic remedy is every every remedy has to be ordered by the board and so the reason why it makes sense that it wasn't the board's interpretation makes sense is that the order here is different than the order in those other cases because there is no reference to the front to back payments to the find and as to this court's prior decision if i could clear that up a little bit there was as i think joe johns in the same before that the issue we're talking about today was just not at issue in the when this case was here the previous time so there was no holding in the earlier decision by this court fit kind of dictates the result here i would also like to apply understand challenge to the board to change the language no the board could not have changed had to stay that way yes because once and once an order has been enforced by the court of appeals the order is set the terms of the order set one point i'd like to make the union points out that they are no particular terms and conditions of employment laid out in the in the order but there's a difference between when its terms and conditions of employment for employees which the board has said you do not have to kind of set out that means wages that means hours that means all of those things because it is clear in that situation who the recipient is the difference here is that there are two different recipients there's the employees and there's the welfare fund and i think it makes sense to say that in that situation when there are multiple recipients there needs to be that extra degree of clarity when you lay out who is being who is the recipient in this case so i'm not saying that the board has to always lay out to these specific terms and conditions of employment there must be there must be restored when we're just talking about employees and that's really the upshot of the winsted cadillac case which is discussed in the board's order the difference here is when there is that extra that additional recipient and the board never changed its view that employees benefit from back payments to a find a way that somehow it hav an interest in the viability of the fund we don't disagree with that because again i think that's the argument that this was some kind of policy change but there is not some kind of policy change here for the reasons we are discussed what the board was saying is that factual matter they are they are two different recipients the welfare fund and the employees and in that situation the fact that it doesn't mention anything about the welfare fund shows that or at least supports the board's reading that the order does not include that the welfare fund is there for the for the benefit of the employees right right it's we don't disagree with that it's just as a factual matter they are two separate  s and so one last point i would say unless there are further questions about the previous the board's previous this court's previous decision is that the employer had argued that it shouldn't have to  make contributions to the welfare fund or because they were too expensive essentially that it would have it would have been it would've been harmful and there were there were several arguments the court said that those had not been addressed before the board and therefore were not properly before the court it did mention a couple of the arguments that it said could be raised in follow on compliance proceedings but none of those arguments in there laid out in this court's decision go specifically to the welfare funds they could go just as well to the premium thank your honour's we still don't have an explanation an adequate explanation of what retroactively restore terms and conditions is supposed to mean as judge schroeder's pointed out it makes no sense in the context of the unilateral change case where the only issue was that they had ceased making health and welfare contributions that the board would not have included it standard remedy now what counsel is saying is that what that language means retroactively restore terms and conditions of employment is that the employer was supposed to plug them back into the health and welfare plan but that is not retroactive that would they would have said put them back on the health and welfare plan going forward instead what the board said was retroactively restore terms and conditions of employment that must mean something the board can't come up with any explanation for what that term is supposed to mean other than to say it was a mistake an inadvertent and the only explanation that it's provided to the court is that it would be a going forward remedy when the remedy is clearly intended to be retroactive so in order to give meaning to that term and it must have some meaning it's important that the court the issue back to the board so they can and at least try to provided an explanation for why it's interpreted the way that it has we don't see any logical explanation for the board's interpretation  that it's provided to this court or that it provided in its order i thank you now thank you to both counsel the case just argued is that made it for decision by the court the next case on calendar for argument is put pheno versus united states citizenship and immigration services