society of illinois versus international brotherhood of the appropriateness of the argument you know i do think though central to both of those issues and overlapping both of those issues has the effect of some historical facts in the case that are really important to the impact on the overall result of the case and that is what is the effect of the union's two thousand and seven decision to disclaim an interest in representing the employees at  any further interest in representing the cremation society employees and in fact it went ahead and and did what a union does in those cases it then assessed withdrawal liability commissions society paid that withdrawal liability dust terminating  the parties bargaining relationship in its entirety at that time that's critical i think when we get to the the overarching issue of single employer inappropriateness of union because remember to set the sole basis  disclaimer of interest in representing the commission's society employees and to thousands that based upon that we're saying they can't come back now and reclaim who they disclaimed multiple years ago and that's and you were giving us the history saw i  wonder is there any record evidence support for the assertion that there were no meaningful changes in the cremation society and sullivan olson's organizational or operational structures from zero seven to thirteen i think there is deposition testimony from gerald solid and and from vicki graham from they both talk about the ongoing and really not significantly changing nature of the way they did business during that time so yes if you believe there are some record testimony i'm beginning to this point of the effect of this two thousand and seven decision the union needs the cremation society employees in order to avoid the one man unit all right because no one disputes that through starting in january of two thousand and thirteen sullivan olsen was diminished to one employer douglas kline and all the way through two thousand and thirteen that remained the case and sullivan also in an at the end of november two thousand and thirteen notified the union that were repudiating repudiating the agreement under the one man unit will we haven't employed anyone else we have no intent to employ anyone else and it's been that way for approximately a year the union after a month or so later on raised the argument that well we think you're the same her single employer with  count those employees as part of the bargaining unit so we can avoid application of the one man unit rule and thus avoid repudiation remit and thus in force the arbitration rights we have under that agreement mainly impacting  and termination the problem though is as i see it your honour's is that the we have are you period unique circumstance in this case and that is that the union previously represented the employees a society and expressly and unequivocally disclaim an interest from representing those employees who walked away from them that assessed in collective withdrawal liability for them so our point of view on this is they can't now come back and say the very employees that we say we no longer represent we have no interest in representing we now are counting those employees to form a new bargaining unit you know order to avoid application of  you like the district court judge dispense with that argument pretty quickly and found that that evidence was a sufficient to demonstrate an explicit waiver on the part of the you know i think the way the district court viewed it i don't know that they got quite into it in that way when i when i read the district court opinion the district court seemed to stop the analysis at i believe that there you know the district believe there was a single employer therefore the issue was over decided what i'm suggesting to your honor's is that the inquiry shouldn't in there because it you have the secondary question of the appropriateness of the unit as well and that and i think it also overlaps with whether this is really a single employer but again to have or to avoid application of the one man unit the union needs to count the cremation society employees as part of the bargain but they've already disclaimed of those employees employees and including them in you know i mean i don't mean to be terse this but including them literally in a body count to avoid the one man up when you man you need rule was inappropriate they've already represented that and they've walked away from them they can't help re grab them because those employees haven't shown a majority interest in the unit been no election those employees at commissions citee the union walked away from there and so what i would suggest that if the district court was correct in determining under its analysis that there is a single employer here that that doesn't indeed the inquiry that the unions terminations of representing the c court to take a closer look at that two thousand and seven disclaimer of interest by the union and the effect that has on the union's ability to to reclaim those employees subsequently in an effort to avoid the one man unit will these three funeral directors were part of the targeting unit we do we do in the end that it gets back to the same issue number one that we think you can't grab these same employees who are disclaimed and put them back into the bargain as a matter of judicial intervention again there has to be either a voluntary recognition on the part of the employer that those employees are part of the unit i'm talking about that the process by which the district court judge made that determination that he said he concluded that they were part of the bargaining unit that was the subject of the c b s i'd agree do you think that the record in the analysis by the district court was a little thin on in that regard in terms of law king at the actual duties and responsibilities of these various employees or what isn't when it was there in the records at the other it what ever what record evidence do we have that the other three employees were not performing bargaining unit record evidence on those employees really was focusing on the differences between performing cremation work which is what commission society did predominantly versus traditional fuel work which is what these other folks were doing and there was some record evidence where the folks from commission society did not say they exclusively do cremation and the other group exclusively does traditional burials but the record evidence was cl predominate overwhelmingly dot's cremation work while the other group overwhelmingly does traditional few more work and they didn't overlap and in fact they had instructions and directions to not overlap with each other's business in that regard so there is some evidence to show and i don't think that that there is a legal standard that requires an absolute one hundred percent separation between the two it has to be it's a group of factors that the court needs to look at to make that determination  beyond that determination of the other issue that we have raises some of the factors we think the district court overlooked or made mistakes on in concluding that there was a single employer especially because this case comes to us in the context of a motion for summary judgment and the port of course is supposed to make all reasonable inferences in favor of the nine hundred one rather than against the nine movement and we would submit that in this case there were multiple inferences drawn services that were provided to each other in fact the union in its response refund summary judgment is that the supplemental appendix at page one eleven conceded that we acknowledge that that occurred you know you have to guess i'll just finish up real quick and save my couple minutes i'm thinking but the court nonetheless went out of its way to find a cause a country fact on that despite defendant's concession of that point the other dealt with the court's devaluation testimony about that issue of invoicing in pain for services as well as mr sullivan is testimony about who actually ran the day to day operations of the two different companies and both of these are issues were found at page thirteen and kline and whether it was bound by the decision of the joint grievance arbitration board that as a matter of contract sullivan also had not given a sufficient did not sufficiently terminated the collective bargaining agreement justification as counsel pointed out for its refusal to arbitrate those cases is that the bargaining unit went to a single employee or the district court properly found was that that was not the case because a second employer cremation society doing work covered under the collective bargaining agreement between sullivan olsen teamsters local seven twenty seven for that reason the single player finding was supported by the record work there are enough facts under evident to at least create a genuine dispute of fact about whether or not they were a single employer such against such a should have gone to the trier of fact as opposed to been disposed of on summary judgment i think the issue is financial operations and controls between the two companies i mean wouldn't that alone have created a genuine dispute i don't think there's a dispute as to the facts in the sense but the most important factor that the courts analyzed is coming control over labor relations and council didn't mention those factors and i think they overwhelmingly favor the unions position which company provided services to the other company's clients right they used or they shared computers punch the same time plot same administrative staff same same manager direct a word h r with the same same same h r person who provided h r services solving also in a at no cost to that and when the merger happened was there any difference no it was joel solvents testimony that there was no change from the employee's perspective or even from the perspective of a customer other was no change in operations in the company once the merger took place and what about this the services provided by the two lists councils arguing the difference cremation primarily cremations and the other not and th at they were not supposed to cross over into each other's territory so to speak they know the testimony i don't think was that it was used the words predominately and overwhelmingly believe ms grantham the controller's testimony was mostly entities i was that of mr klein who worked there for sixteen years and presumably knew what he was talking about as to what employees did what and his testimony was unequivocal that there were  testimony in its declaration of summary judgment which is not contradicted by any other testimony from any other current employee of the company was that olson or that commission society employees were doing that i think there and there are two way to questions i think one is whether the combined employees of the two entities constitute an appropriate for collective bargaining under the national of the employers arguments were focused on that second question there was never any dispute never any position taken and before the district court of before this court of the employer briefing that the combined employees of the two and a d s do not form an appropriate for collective bargaining is a district court judge have authority to make that decision or is set to exclusive to the an alert  and that case the court determine that it didn't have to reach the crust and because the only real question was whether the employer was bound by the contribution obligations in the contract it didn't address representational issues representative doesn't raise the question of what is appropriate you know looks like the combined entities it only raises the narrower question of what is the contractual obligation of cremation society and so i think the case greece where the court had briefly raised the question and said well the employer actually has has not raised this question below in arbitration so that it's waive the issue any federal common law already in support of it to get by frying only the illinois state laws and it's those briefings that was not sufficient even to flush out the issue for the district court so it's not under no obligation to alternative analysis which yes like they have a right so to respond to  the future the there were at the time of two thousand and seven the record shows if they were to bargain units as a multi employer multi location unit commission society i think ten locations around the end and there was a separate unit with a separate collective bargaining agreement sold and you need to claim your presentation in that larger bargaining unit there's no question the union is not asserting in this case that it's somehow trying to integration of their operations there as a district going to court pointed out there's no conduct by the union that ever communicated to sullivan olsen during the seven intervening years it never intended to raise a single employer issue as a defense should sullivan olson tried to walk away from its obligations of the collective bargaining agreement the the unions communication a waiver has to be clear has to be unmistakable the unions conduct has to be inconsistent with any other interpretation other than that it never intended to raise the single employee theory again under collective bargaining agreement frankly if it's different then then the case relied upon by by the employer in which you no party accept another of the other contracting parties performance whether it's provision of services or widgets or whatever except except the delivery has no complaint pays the bill and then later tries to claim that there is something deficient about that but the performance in that circumstance one can't interpret the party's conduct as anything as consistent with anything other than acceptance of the performance in the collective bargaining context you have a an agreement under which the what the employer delivering if you will is certain terms and conditions of employment that apply to the representative sleaze a union may decide not to pursue a particular violation of a contract  you may not know about particular violations of a contract if an employee doesn't bring them to the indian union may be faced with the decision about whether to file a grievance and have any number of reasons not to file and the un has broad discretion to the national labor relations act in studio or a presentation to decide what grievances it will pursue so that the point is that units fail failure to complain about a particular contract violation during the life of the contract is not indicative by itself of an intent to walk away from the contract entirely something stronger is is needed as there has to be a clear disclaimer that clear indication that it won't raise these issues minutes thank you with regard to appropriateness of the you know just point out the commission society did not contest that issue and raise that issue and it's it's addressed in its opening brief starting at page twenty two to appropriateness of units the courts say that one of the factors that needs to be considered in this is really important in this case is the labor relations history and here you have a really divided history between these two entities they became members and subject to the collective biding government at different times cremation society and i believe one ninety three and sullivan olsen in two thousand and three in two thousand and seven cremations society or the did you challenge appropriateness of the unit before the district judge yes that was that was addressed with the judge and sullivan olson well commissioned society was no longer represented by the  fore seven years six seven years to the point where this litigation started a cremation society wasn't sold in holes and what's so there is a very divergent bargaining and labor relations history  between these two entities and parties leading up to this litigation and beyond that once the union stopped representing the employees that commissions society that resulted in over time different compensation structures different benefits for those employees than those out sullivan also who have it even if we assume they were performing same or similar work you're now getting paid differently in receiving different benefits for their work so that was disputed and we think that's an important factor to look but i'm sorry so did you suggest that the district court judge did not have the authority to determine the appropriateness of the unit you know like counsel i think that's it's a split issue in the circuits but we did not suggest to the district court that it was beyond its of ability to look at that just that it made a mistake in its ultimate conclusion that the three funeral directors were a part of that rodney correct ok and ultimately that brings us back to right my overarching point i guess is that because we have this very unique circumstance here it of the union at one time representing the commission's society employees and in two thousand and seven and unequivocally take the case under advisement