sufficient nexus between the four points of the of the parties closing agreement to constitute what really became a mandatory subjects of the so that the company was bargaining essentially in good  changed competition came in economics and the parties needed to have an idea a framework for being able to close facilities and at the same time if they can work as i understand it that you're talking nothing about affirmative action in the reason for that is because there were different facilities under this agreement so each facility may have had different aspects that may have impacted the closing the use of certain machines in fact and these twelve contracts the union had offered a particular severance pay formula the company rejected that and they rejected that which the union agreed to and they rejected that though in accordance with a structure that would not be over the number of brave you're just you're sliding over that the board made the point that it is until the last employee has left the year you're saying no we union would have had an organizing rights potentially if the successor or obviously issues under the national labor relations act would have applied in fact they subsequently opened another plant in fresno again new equipment and new products and new economics and that's now currently organized but they were very focused on doing a closing agreement that would meet the specific needs of the employees but also of the company because it was very very important in fact in fresno it became one for production facility two for a short time to distribute infertility and all of these plants you know may have sort of relied on one another i mean in terms of their production and their distribution and so that that was very carefully laid out and that's why dating back a number of years the party the company knew that it was going to be engaging in these closures but it wanted to make sure that it had some flexibility with regard to the terms like even the hearing you know the union conceded that the framework of san jose was the status quo later on in you go she is for fresno they tried to they suggested that that you're not eating up borg warner entirely if you say that you can insist on a not in the end have have refused to bargain about a non mandatory subject because already agreed to the interest arbitration that was a trap by coming for interest arbitration that's not what it was about whether if they had refused to partner an interest arbitration  call your brief i went through you're very hard to understand maybe i'm being dense but the fact that there are ongoing employees after the c v a is terminated means those employees who are still working are now not subject to what they had before the c v a rights whereas in the san jose structure the there was no employee under that framework and as i would understand what the union voluntarily agreed to bargain about the framework had the caviar  you could not deprive ongoing employee is in this case and then five i guess or whatever the number was of the protections and benefits of the c b s if they were ongoing employees as the senate was a framework did not include stripping out c v a protection for people who were still employed before the closure so you're calling it a framework over all the you can bargain about terminating the c v a but you want to say and we can remove the what appears to be an important clause of and you can said you could back off if you didn't you could've modified your proposal then to reflect the idea that they wouldn't get here to that part of it but you just declared and you know it was over but they did during the course of the negotiations what we would submit is their determination to get what they changed their proposal about the term a nation of the contract that was a term within this framework who they started to change the company did they started it five employees still the same concept they came down to one and then we get back to the judge resigns question what's the point book because the union response at that point structure looked at that the parties have an obligation obviously to bargain about the effects but that could mean that it could be timing it could be how people will be laid off what the with the parties committed to was the parties understand what their collective bargaining obligations are i'm sorry i don't understand what you're saying that the integrity of the bargaining process but you're telling me that even and this is a turn our back on our earlier conversation that just by the fact that the police do argue as you know cannot condition a bargaining agreement on a list of subject of bargaining and less they can show that this is a subject is so intertwined with the mandatory subject that it essentially becomes mandatory itself i mean you know and that's then and in that case the court disagreed with the board and found that the company could insist on the tying together of union security and a collection clause because they were so intertwined and because it continued the status quo the court also found that the company didn't bargain to impasse on that issue so it wasn't insisting to deadlock that there were negotiations still going on but that it continued the status quo for the parties bargaining for years they had been no collection of the union secure been a union security cause but no collection of initiation these under their practice and that's certainly not the case here the status quo as you recognise not only in the san jose framework but in the follow up negotiations over mark hart closing and the proposals the company made for the malts avenue closing none of those include terminating the contract while employees are still working at the plant with regard to the war one related question believe the union in this case is entitle to do it if there were reopen or position or reopen or provision that might be different but the company never offered the union what was actually in the sand is a framework which is mid term cancellation while after the board on the board well the board discussed it in the section of its decision where it talks about the waiver argument as a company before the board had argued that the union had agreed to the san jose framework so it was waiving any argument it had that it didn't have to comply with that so the board addressed it in that section by talking about the fact that there couldn't have been there was no clear and stable waiver but also that the two parties seem to disagree about what the san has a framework contained but the they tied it up in interests and so the question was really there are a few th an assumption it already voluntarily agreed to and the board's point there was that these are functionally the terms and conditions of employment because this is how they're going to exist in this regard it as a very narrow notion in very particular circumstances so i can't really tell whether the board's ruling here is that the whole concept doesn't apply to this situation or that they didn't wrap it up properly with regard i just stop there i will ask next but if you're going to say that you can you have to show something more you have to show that this is so important to your mandatory subject that you have to be bargain i mean as i understand the norse from france for i think source has one of the cases says well sure if they won't agree to go to a non mandatory subject then you can change your position on the mandatory subject because so they could have said right we're not going to g mandatory something i don't understand even conception i don't understand i don't think i can help you so i don't really understand either i mean the the board just reiterated you cannot insist you have to show more  in there are so few cases i'm not sure the board is exactly clear on what exactly you would have to show c b a manner as you said is very different the only two other cases are board in and regal cinema which are about severance and releases and borden the board said a general release of all claims against the company is not sufficiently tied to severance and regal cinemas the the general release the release was not generals very specific you're just giving up your right to claims related to your terminations and the board said you could tie those things together but other than that there there's not a lot of guy that's because it just does not happen very often and i don't think the board the board certainly does not want to put  just because i'm curious about what is really going on here i have a theory i wasn't involved in the hearing the company initially said it would close in november of two thousand and eight then it said it would close in october of two thousand and nine then it said it would keep the warehouse part open indefinitely i think they wanted to keep the plant open at least for a while and get rid of the union and that seems the most logical i mean they haven't told me i'm speculating but that from the record that seems the most logical if they want it if we call rights were really the issue they could have asked the union for a waiver of recall rights but as far as i can tell that was not requests and to some degree they did with the senior think that the parties have already gone over a lot of the issues that we know the main issue is whether early contract terminations and became a mandatory subject of bargaining and you know our contention is that if it did not and the  argument is that there's a sufficient nexus because the parties agreed in the collective bargaining agreement to use the stand has a framework and plant closings so i get the parties agree no i mean our position is that you know the board was correct because in the collective bargaining agreement actually indicated that the union union was bound to negotiate early contract terminations of future plant closings and you've already referenced that on you are where the provision that the company refers to it says it is the company's intent and future plant closures if any to bargain a severance impacts formula that is not inconsistent with the severance impact parking formula agreements at san jose it says nothing about early contract terminations or the unions you know being down to negotiate as far as the san jose framework and the company's argument regarding that as you've already noted the parties have critically different understandings as to what that entailed in the board made that finding and to the union and it meant basically what was what happened at san jose terminations of the contract after there were no more employees or the plant closed whichever comes later and the difference is an understanding is critical because if you're terminating the contract won't please remain at the plant you're basically waiving bargaining rights for all these employees so the union from the union's perspective it could have been breaching that studio a fair representation or at least that's what was the perspective of the people involved and also there's the possibility that the company's going to whittle down its operations keep a couple of people employed keep the plant operating and then rehire everybody you know on union this is a possibility in this case versus terminations after all the employees are laid off and the plant closes this isn't so much a  valid and the other one is also the case of her wrong anyway right i mean i i just think this case is very different from those cases but if you do compare this case to those cases for example of the cib a man or case there the parties had a specific agreement for interest arbitration they have voluntarily agreed to that whereas here there isn't there isn't an actual agreement in writing that says that the union's going to agree to you know an early contract think that's that's almost what the argument is although they are catching it as this nexus argument that they're mostly saying that you know there was you know basically the union wave that's right and we know that us in writing about that question so we know what we're doing yes sir and we will your honor thank you i just want to comment on one on one thing i think the essence of these cases is the relationship between the parties the essence more clearly than the nexus in the board to opinion they did look at it and they said you guys are miles apart on what this framework is and if that's the case why isn't their determination defensible then well i don't i think the board ignores the evidence in this case i think the goal was excuse me for what i think the board ignores the years of bargaining his own health case which is critical get involved in labor six thousand believe me maybe this is unique industry where there's such a long history but maybe there are all of these off the record or side bar understanding spot when you say that the parties are supposed to understand their relationship they're still comes back to the fundamental aspect that you have a written agreement you have a you do reduce it to writing and if the writing is unclear then i'm not sure we're certainly really is according to you know will when it comes down to what the histories are that's the board's role i mean we've been trying to puzzle out the logic of your position and the logic of their position it's very difficult i have to say in this case to figure out when you say there's a framework and i say the union agreed to that and i go back and i look at your site necessitates the c writing in the san jose agreement it seemed to me and the evidence of the relationship and the understanding would be defined by the document that they incorporated by reference and that does you know closure or no more employees the docking that it's a quarter by reference absolutely but also the bargaining history between the parties and what's actually said at the bargaining table and i think it was an understanding and certainly the s marketing it's providing a framework that really isn't set out in the law and what what occurred there always in fresno the union essentially reneged on that agreement the union said that they didn't want to terminate the contract at all and people have and there was some suggestion of the end of this of union and this they wanted i mean that this this company has thousands of employees under contract they were dealing with this particular issue in fresno they also had business difficulties following this is