the underlying them for labor practice charge dismissed there are six readily apparent facts that make this conclusion on the stable number one there is no such entity as first transit slash river valley metro number two first transit is a private employer as defined by the national labor relations act and subject to the jurisdiction of the national labor relations board number three there is no dispute of first transit with mr johnson's employer number four river valley metro was not mr johnson's employer number five the national labor relations board exercise its jurisdiction over first trains in this johnson in connection with an unfair labor practice strongish that she investigator and by the board itself but because the national labor relations board investigation found insufficient evidence to support the allegations that were set forth in the charge of the illinois board no me right yes they actually available to the board before the commom before the complaint was even issued because the investigator a letter was sent from the labor board or dismissing the charge that was presented to the investigator  in the proceeding in this we were given and it is as if we were a part we participated in the investigation submitted evidence and information we responded although perhaps untimely in some cases our in some respects to see the complaint at no point in the any of the proceedings did the air or j or the board say wait a minute first transit you're not hard in this case we're not going you haven't intervened we're filing this case we've submitted to the jurisdiction of this core to resolve that issue thank you ed in is still an open issue of fact and law whether miss johnson is an employee of river valley if you look at the american federation the ask me case the illinois supreme court case that is the precedent governing this decision the illinois supreme court's specifically hello specifically stated that the question of whether there is concurrent jurisdiction between the state board and the federal labor relations board is an open legal question that the court declined to address in that case it further held that the issue of whether an employee is a joyce as an employee of their joint employers is a matter that can only be determined not by merely reference to the contract which is the only document that was in evidence in front of the board here these supreme court specifically hal it's not the theoretical control that the governmental entity exercises but the actual control specifically you can't just look at the contract that's the theoretical control you have to have a hearing to determine the actual control and the referenced matters such as determination of wages determination of whether overtime will be al question of subject matter jurisdiction we respect we suggest that although it can be raised at any time this court should not decide that issue because under the ask me case it's this intricate question of facts and law that have the required hearing and the evidence in the record there is only a contract not sufficient to determine whether there is concurrent jurisdiction which is an undecided legal question or whether as a matter of fact save one thing that either the board or the ala ga or anything that the board did to even indicate that it was exercising any type of  position about whether they have standing before this court because there is an issue of whether they have a sufficient legal interest in the case but that is a matter that the reserve for this court to determine whether they have s clearly they had no standing and because they did not file a motion to intervene before the board the board never indicated that they were a party that they were not served with anything save at the very last thing river footnotes one foot no two that's the recommended order and the board's decision the text of the decision very clearly distinguishes that they are talking about river valley as a response and they specifically to comply with the order but that was a good bet more of a statement states to the extent there is a question about the who has control who's the real employer if you dress in the arguments  that that there is there is an issue about your player but as far as the board's order is concerned because it was basically an order saying the default judgment stands that means that first transit bikes use the river valley has admitted almost charges which would mean that river valley was in fact the employer and the order only is based on the student the complaint which is deemed admitted which states that river valley was the employer in river valley committed unfair labor practice in discharging its employee johnson and therefore the order orders the response of the river standing because frankly we are whether we can raise it you can yes i mean you can always raise it on your own and it's a bit of a complex issue because first transit certainly could argue although they haven't that they have sufficient be taking a position in if there are any other questions about the underlying issue which is whether river valley was entitle to  variance under the boards or three we need to recall that we are here basically on a default judgment so the underly side from the subject matter jurisdiction issue whether the board had jurisdiction even cited something in my brief here and in a footnote the wood dale case also says we would make the feint same finding the words rule regarding extraordinary circumstances the two rules and in my late and to address this question the board's position is that the date that river valley dropped it in the mail its motion to answer instanter the date was dropped in the mail with the data file so even though there was talk about it didn't get there fourteen days later the board can see it was filed seven days late and that's important because even if you look to the cook county case which is the case that says well you can consider this filed twenty four days after it's after they discover that they were between twenty days after they discovered that they were made a mistake so clearly underwood dalal even under cook county there was no due diligence even more to that technically river valley never filed that this is something that you filed her early on in the investigation and river valley asked first transit to file on behalf of river valley representing river valley but first transit didn't file that first transit file was its own defense on its own behalf so first transit never actually fulfilled its duty to  n first premises duty was to represent river valley is attorney should have gone in and filed on behalf of river valley but they never did that in trial only on behalf of first transit tried on americans as opposed to the depot procedures and i would just say is that the decision be reversed