next from the parties time warner versus international brotherhood of electrical  good afternoon your honour's may please the court the crux of the issue before the court today is really an issue of contract formation not contract interpretation as time warner would have you believe and if you look at the second circuit decision in don't recall the court is to respect the expiration date chosen by the parties in a collective bargaining agreement and let the supreme court it said that the no strike clauses do not survive the collective bargaining agreement it also held that a rational an all or b decision will not be disturbed by a court when on appeal and it's also important to point out time want to cable never appealed the one board decision it says there's no contract no meeting of the minds and lastly in all of b b strong it's how do you respond to the waiver argument which the parties proceeded in front of the armor turner as mistake is the right word i mean the union argued that indeed there was a collective bargaining agreement and everyone proceeded as if there were any reason for a cream yes and a reason for th that answers the question before the arbitrator and that is this the district court found you express lee asked the arbitrator to determine your liability under the no strike clause of the two thousand and thirteen collective bargaining agreement in my right right why isn't that waiver at the end of it because it was no contract and subsequently determined that there was no contracts not the issue the issue is whether before the arbitrator in this proceeding you waived any right to urge anything other than that the two thousand and thirteen c b a was the binding document understood your honor but so the fact that later on it was found to be no agreement isn't the issue it's whether you waived that argument in this proceeding and i would agree with you your honor except as soon as we found out that there was no agreement right because the parties went back and forth asking for the right is to the agreement the employer at the time could just hand it over the reuters and yes that would have been an agreement in place however by waiting for that period of time we would we would damage as lower court said putting a so i they don't even address whether or not there's a collective bargaining agreement in place at the time and a board will address that today before your own is what they did do is say there is no  collective put a collective bargaining agreement a saw in that the issue presented on july twenty fourth is what gave subject matter jurisdiction to the court that's a good judge wants to  safely he says special appendix thirty nine under the magic of a broad federal or betray sion statute an arbitration may be specifically authorized by the parties to decide whether a non operative he doesn't say that it is operative he does the the court does not look at whether or not the collective bargaining agreement is in effect goes on further in special panics thirty nine of forty saying that the separate freestanding valid specific  arbitration agreement expressly granted the arbitrator to youth already to decide the dispute as if there were more general agreement not to strike so in order to have a waiver we have to know what we're waving the union doesn't know what it's waving we had no idea at the time on july twenty first and that at all if you wanted to argue to the arbitrator that there's no agreement here you could have argued that you know that and it would be the same as being in a district court on some other action not raising a challenge to a statute after in fact waiving the challenge and then there's a decision by a higher court some months later that's that that suggests that you could have had a viable challenge he's waived that but we want to raise it at the arbitration however the regional director dismissed all you will be which was later reinstated we appealed to the appeals and they even stated it and all throughout it was issue a complaint because you violated collective bargaining agreement yet when they go forward there you will be it goes to hearing it goes to the board and it's determined that there is no collective bargaining agreement so we were led to believe because the region dismisses or you will pay not even the complaint and because the other region issued the complaint on time warner's we were led to believe that they were going to find that there was no contract explicitly reserve the right to object to arbitrate billet so you could have said to the arbitrator look we'll agree to you considering it under two thousand and thirteen but we have this challenge and i want that clear on the record that if we get a favorable ruling we're going to challenge or debility you didn't do that putting putting aside the contract for the moment there are still six public policy reasons why this cannot be enfor he cannot await the outcome and later argue that the arbitrator lacked authority unless he preserved the issue but could be set aside if it's in direct conflict with well established public policy and here the public a five hundred or because a saying that the the employees in gauged in protected activity you also have section seven of the end that says that the parties have the right to gauge considered activities fo y under section thirteen of the act you have the right to strike the child not be impeded or diminished section eight the have the ex says if the parties agree to an agreement they are required to sign off on it the board dismissed those charges as well and lastly which was not addressed by either the op or trade or the a lower court is mistral plastics mistral plastic says the right of employees to strike in resistance to you will piece by the employer is a fundamental right so even if the contracts in place it is a fundamental right which the statute recognizes and no contract to waiver is to be inferred from a general provision in the c b s you want to use your reserved time or do you want to sa work stoppages by the union our interest here is that this lawsuit not be used as a means to undermine the n l r b is finding of no contract in the unfair labor practice proceeding we are satisfied with how the district court resolved this conflict our concern is that this court not revive a collective bargaining agreement that the n l r b said is not operative in the district court thought that the party said not submitted to the arbitrator the question of what should happen in the case of futures rights right correct that was that exceeded the scope of the if you know your and you're satisfied with that ruling by the district court yes correct by eliminating the prospective portion of the arbitration award we found the district court relied instead on the parties july twenty fourth two thousand and fourteen submission to arbitration and therefore preserve the board's no contract finding absent a valid contract between the parties containing a clear and unmistakable waiver of employee's right to strike there was no legal basis for the arbitrator to impose such a drastic restraint on the rights of employees strong public policy and favor of preserving the right to strike combined with supreme court precedent establishing that no strike clauses do not survive contract expiration and waiver of a right to strike needing to be clear and unmistak dictates that the perspective portion of the arbitrations award is antithetical to public policy and their reply time warner maintains that collective bargaining agreements that the collective bargaining agreement between the parties never expired relying on the unions acquiescence to arbitration as the unions admission of a valid agreement between the parties however as the n l r b explained local three's conduct simply demonstrates the mistaken belief that the parties reached an agreement it does not bear on the relevant question of whether the parties reached a meeting of the minds concerning all material terms of a successor contract likewise time warner's reliance on case law correct that's the that's the status and the relationships between the parties the parties are obligated to maintain the status  that's outlined by the the the act which which governs which says what on this i guess our concern is in the two thousand and nine act and two thousand and thirteen i'm imparting consideration for also getting the waivers so hacked what is it that tells us what parts are in effect and what parts aren't maintain the status quo the n l ari has certain provisions stating that for example grievances still need to proceed and that certain terms would continue on however the parties must expel according to let in the parties must explicitly agree to arbitrate their disputes and they must and thank you thank you that proposition and the reason i say that is that it's undisputed that on march twenty eighth two thousand and thirteen the party signed a memorandum of agreement that extended their collective bargaining agreement for four years after local three before us with all due respect we believe you do need to decide that question and we do not believe that it constitutes referral reviewing the board's decision and the reason i say that and it really goes to the heart of the union's case here the lynchpin of local priest argument is that this two thousand and fifteen decision of the in a lower be on the unfair labor practice charge that was filed by time warner cable retroactive invalidated the collective bargaining agreement that the parties had been living under for two years that's the heart of their argument and i'll address in a moment why that decision has no bearing on this case which is a reprise horizon under section three a one of a labor management relations act but i think it's worth noting that since local three is asking the court to essentially defer to the board on what is the court's responsibility under section three zero one we have to observe that it's far from clear what the board's decision even means and what its implications are regarding the current existence of the parties no strike in that context or should have been in the context of the board decision well it shouldn't your honor because there was a very narrow issue before that in the board unfair labor practice case which arose under the national labor relations act the allegation was that the union committed an unfair labor practice by refusing to sign the collective bargaining agreement that was tender to them by the company and the administrative law judge affirmed by the board found that the parties had differing understanding as to whether those riders addressing some tangential issues they had differing understanding as to whether those riders were to continue or not and once the administrative law judge me that finding that the parties did not have a meeting of the minds on that narrow issue that should have ended the case because if there was not a meeting of the minds on the riders then when time warner cable tendered a document that did not include the riders it was not an unfair labor practice for the union to refuse to sign it so that narrow issue was entirely sufficient to resolve the unfair labor practice case no issue was presented in the in for labor practice case about a much broader issue of whether there was a collective bargaining agreement the only issue was whether this document the time warner cable tendered accurately reflected the party's agreement and again because there was not a meeting of the minds on that narrow factual issue of the riders that was the end of the on for labor practice case that's an entirely different issue and entirely different standards that apply befor e the district court here and before this court which arises under section three zero one of the labor management relations act first of all is as i've already explained the language in the court decision for labor practice case about no contract there is there was no meeting of the minds on the riders and therefore no contract was pure dicta because the board was not called upon to decide whether any collective bargaining agreement was in place only whether the document that was tendered accurately reflected and agreed but beyond that beyond that at the core of local police position is that the that is that the district court and this court should blindly follow that dictum in the unfair labor practice case before the board and ignore this court's obligation under section three zero one to decide if in fact there's a collective bargaining agreement and that is a completely unsupportable and unsupported abdication of this court's role the supreme court in the lytton case took great pains to point out that courts and arbitrators are the primary sources of the administration and interpretation of collective bargaining agreements and section three a one the court said requires courts in arbitrators to establish the common law of collective bargaining agreements now the  in some cases may have occasion to decide whether a collective bargaining agreement is in effect they mean they may need to do that in order to exercise their limited jurisdiction of deciding whether an unfair labor practice was committed under the national labor relations act but the n l r b has no role whatsoever in the application of section three of the labor management relations act no role whatsoever in fact we can see this a a one of the labor management relations act citing this court's very recent decision in the n f l management council case so this is a labor management relations act section three a one case it's not an unfair labor practice case and in fact not only are these different statutes but there's a ferry very fundamental difference because when the end venture into whether a collective bargaining agreement has been formed again it can only do that for purposes of deciding an unfair labor practice or the board's decision in the unfair labor practice case that's correct you well your honor we're not here taking issue with the board's decision in other words properly read the board as it was called upon to do decided a narrow factual question did these document that was tendered by time warner cable accurately reflect the parties understand he's and because there was a dispute about whether the riders should or should not be included it was not an unfair labor practice for the union to refuse to sign a document that's that was any of that or can we just rely on waiver of the of the issue of the validity of the contract that the that the part arbitrator do it under the two thousand and thirteen agreement your honor we believe that the case can be disposed of entirely on the basis of wafer that is it's a very bedrock principle that a party who does not timely object to arbitrate belletti waves any objection and if your adversary argued in response to that that what makes this case different is that they waived it because they had just lost in another proceeding and that that should distinguish this case from another that they didn't wave it in the in the classic sense that some of the other cases have involved so what's your response to that your honor with all due respect the union's argument is absurd  july twenty fourth two thousand and fourteen is when the union signed the agreement we agreed to submit to the arbitrator the issue of whether the union violated the no strike provision of the collective bargaining agreement and if so what shall be the remedy july twenty fourth two thousand and fourteen the union claims and mr klein inflamed today that what we had no idea there was an issue about whether there was a collective bargaining agreement we we thought at that point that there was a collective bargaining agreement well in fact in fact at the time local three signed that agreement july twenty fourth two thousand and fourteen the issue of a dispute about whether there was a collective bargaining agreement in place had already been teed up that is time warner cable had filed its unfair labor practice charge in march of two thousand and fourteen four months earlier and here is what local three wrote in its initial brief to the district court in april of two thousand and fourteen quote the union and time warner cable have been parties to a series of collectively bargained agreements the most recent of which having expired on march thirty first two thousand and thirteen but l r b will have to determine whether the parties in fact reached an agreement for it success or agreement so local three was well aware of a potential issue in april of two thousand and fourteen that the board might issue a decision that has some relevance to whether there was a collective bargaining agreement and notwithstanding that they were well aware of they signed the agreement july two thousand and fourteen in which they think what the court was point is the issue was teed up of it then the reason for you want to the time i twenty four and then the region dismissed or you will piecing that there was a contract in place which is later rescinded so i want to get past the contract issue because really the it the bigger issue for i can see with the justices here today is the issue of public policy it's still it's a can you still did execute the agreement to submit the matter to arbitration for it was it was we agreed to in the thick ation without qualification and it says it's called arbitration submission the undersigned parties agree to submit the following dispute for binding arbitration know what it says whether the pawed he's violated the collective bargaining agreement bring union violent than a strike provision of the collective bargaining right in the no strike provision of the collective bargaining agreement says during the terms of this agreement that agreement was expired march thirty first of two thousand thirteen during the term of this agreement so i really want to make the point on a public policy if even if you agree that the contract again if you look at mr plastics mistral plastic stands for the proposition that a general no strike clause in a collective bargaining agreement does not apply to you lp strike unless it is a clear waiver so how picking up with judge connie just raise how can a general did the union appeal with d c and on january twenty ninth the twenty six team they reopen it pending the outcome of the board decision on whether or not there's a contract and then issue the complaint which comes forward and we have an a l j decision in june fourteenth to twenty sixteen your honor so there is a clear prohibition on the misc oh and metroid decision under the supreme court for forcing an award that will violate public policy strong public policy