and our case there were a host of unfair labor practices that was the hospital's unilaterally altered access provisions after expiration of a contract and the be subject to coutts enthused auction would not though there's two grounds that we're starting that the board's decision is inconsistent with this court's line of cases cost in a lot of cases that because the law had been one way for so long and then it was always in the state of flux and then there was this issue raised from the get go about the recess appointments so you could really rely on that that's the st question so how do you respond to that the nd one the nd one let me just  interrupt you again so reliance has to do with you know you might have done something differently so how what are the ways that this could have been hindle differently by the union in contract negotiations if you weren't relying on this case as well with regard st of all to the judge's family's question regarding whether the court would have to reach retroactivity i agree with union counsel but if the court were to disagree with the board on the merits there's no need to address emphasize st of all that retroactivity is the default rule in board proceedings when the board announces a new rule through adjudication it is the board's usual practice to apply the rule retroactively in all pending cases and a party seeking in effect  three evaluate as the court explained in garfield's for draco's case whether there has been an abrupt departure from settled law and the related question of whether there was reasonable reliance on the preexisting law those go hand in hand in this case there simply can't have been no reasonable reliance because there was no settled law for the board to depart from as the court said in garcia's rodrigo's these factors favor retroactivity when quote a  to say that this rule could have come as a complete surprise to the union in this case i'd like to briefly recap the procedural history in those cases because i think it's informative as to this issue in two thousand i want to emphasize that hosty under one was a three to two board decision with a two with three members and hearing the president without as this court explained any explanation and two members for over ruling in two thousand and seven there was another split decision again with three members applying a different rationale to reach the same conclusion and two members dissenting calling for overruling in two thousand and ten it was a two to two decision with neither side able to reach a  majority and in that case what i'd like to emphasize is that the dissenting it's usually the concurring two members who supported the application of bethlehem steel did so based on the very same contract creation rationale that the board further explicated in this case so that the idea that this theory came out of nowhere or could have blindsided the union or created a situation where the employer was pulling the rug out from under it simply ignores the procedural history here once again the change in this case all along it should have been crystal clear to any union or employer operating under the act that this sort of back and forth was permissible because as this court has explained the statute is ambiguous in brand x which the court cited in its into the decision in the end of three in brand x the supreme court explained that it is for the agency in an ambiguous circumstance such as this when you change the law either based on a change in fact or based on a change in administration in light of that reality and in light of the historical back and forth that the board is engaged in it was entirely proper and entirely foreseeable that the law would switch in this circumstance in ways that are similar that we cite in our brief i think the most similar circumstance is midland was a doctrine that the board ultimately embraced i believe in best products case in one thousand nine hundred and five of activity in that circumstance and we cite other cases including chicago marine containers from the th circuit where the court emphasized that when there was acrimonious debate in characteriz the back and forth and board precedent it was simply unreasonable for a party to rely on what it down argued was clearly settled precedent the affiliated midwest hospital case is to the same effect in that case similarly the law was in such a flux that it was difficult to characterize any particular position as preexisting law that's precisely what we have here there are other areas of law such as super seniority for certain union officers and the effect of the ten be period on dismissed charges where the same fluctuations have likewise created a situation where it was unreasonable for a party to rely on th as the union in this case in valley hospital and there they acknowledge that it is an inconvenience to the union to collect dues from its members right there than to have the employer provide them directly but the key for this analysis is that in any case where rule is being applied retroactively there will be some burden on some party the question is simply whether it was an unfair or unreasonable burden creating a manifest in justice and again in this circumstance where the law was so profoundly unsettled it simply was not reasonable for the union to choose not to mitigate its damages in any way over the course of years for example i point the court to go local nine hundred electrical workers liability or whether it had taken steps to limit the liability in that case the union seeing the writing on the wall being aware of the law could change the union as health suspended the effect of its super seniority clause in order to limit the back pay that it could be exposed to i think the board recognized in this case that the union in this unions position in valley hospital could have taken similar measures it could have protected itself by  beginning to collect those dues it's the years for three goes the court recognized that even when there is some monetary amount at issue for example in that case it was i believe paperwork filing fees the fact that there is some money or some remedy that a party will lose due to retroactive application of a new law does not inherently mean that the burden is on fair finally addressing the statutory interest as the board explain d what we're looking at here is practically unbroken thread or law dating back to one thousand nine hundred and sixty two i fully acknowledge what the court said in l j t v for which is the the decision review in the house the end of for  case in that case as opposing counsel noted the board was told that it was unreasonable for a party to rely on bethlehem steel being the law in a right to work setting as we explained in our brief the court did not say anything about the opposite circumstance as which is to say it did not say that it was necessarily unreasonable for a union to assume that the opposite rule would apply  not mean that it was necessarily the opposite for the the law to go the other way circling back briefly to the st factor that was discussed having to do with whether it's a case of st impression as we noted in our brief the same employer that issue in both cases to the rule retroactively in the case of st impression but to deny retroactive application in the case that an impression to the very same employer i submit would be an anomal circumstance i agree to my knowledge the employers in this particular case did not argue for a reversal of lincoln lutheran their argument is a different one based on the specific language of  case but the the arguments that the employer put to the board in the other case came in a different procedural posture where the employer had prevailed before the ministry of law judge and therefore it didn't me just so i understand is the board saying that the fed did not need to evaluate these other contract categories in effect all it needed to do was to show how lincoln was wrongly decided now that's a telescoping of of a lot of discussion but help me get to the to the real the real out of this case real core sure your honor i think that's i would agree with that position i of course agree with the entire argument that my colleague laid out on that point the the only issue before the board here was the treatment of use check off in this case as as my prison counsel noted there was an access violation but there was never any argument before the board that access it would be treated differently because it is a quote contract creation to my knowledge the employer did not raise that argument at any time as a defen to the lining of a violation to you when you say i did you mean check no i'm sorry i mean the the employer's interference with the union's right of access to the employer's premises to communicate with its employees in this case there was a right laid out in the contract authorizing the union to enter the employer's premises to speak with represented employees under certain circumstances the board did find a violation i agree with those in council that the fact that the board found a violation there clearly indicates that it does not view access or any of the other traditional cats subject to bargaining as being exceptions it does not appear that is being changed by the rationale here but no party was in a position to before the court is in a position to demand an explanation for that because before the board no party argued that access was in effect a a contract creation it's clear that the board doesn't regard it as that but what the board with the dues check off sure so do check off what the board set out to do in this case was to explain returning to its language in bethlehem steel where it admittedly spoke at times in terms of the implementation of union security but also spoke in terms of contract creation the board returned to bethlehem steel to draw w the defining common thread that connects union security dues check off arbitration no strike no lockout and management rights in the board's view those historical exceptions dating back essentially sixty  years are defined and are joined together by the fact that they are uniquely created by the contract they cannot exist in the board's view prior to the parties entering into a collective bargaining agreement and you recall this whatever his argument that though they were all statutory i believe her argument is that they all constitute a statutory waiver or excuse me a waiver of a right to a party would otherwise have under the statute for example to engage in a strike for a union or to demand that the employer not make unilateral changes as well and she's wrong because well that is the analysis or the those are the defining characteristics that the board viewed as determinative in lincoln lutheran in this case the board view that differently and said if you at a certain level of abstraction anything is a waiver of a statutory right because as as i believe she noted under the age a p