the pennsylvania labor statute for more than forty years across a number of bargaining units in one thousand nine hundred five temple created temple university health system as a wholly owned subsidiary over which it retains control that is the employees temple hospital repeatedly offered to add those employees to the existing bargaining unit under the procedures of para the union refused because this has never been about the representation of those employees instead and this was made clear in an e mail that was sent from the dead executive director of pass now to the head of labor relations for the health system and the parties of stipulated the parties meaning of the parties what is expected to be the supreme court's decision in friedrichs which ultimately became the supreme court's decision in janice preventing the mandatory deduction of agency fees so this is not about temple health system trying to thwart union representation this is thirty five hundred unionized employees again and their across what is now twelve bargaining units of the whole system who are represented and there is no question about that i want to just say if i can two of the four issues which are actually raised in our brief because they're clearly not the time to or i'm going to focus on the judicial stoppel and the issue of the exercise of discretion to the extent that the court has questions on the others i'm happy to take them but otherwise would rest on our briefs given that time so first i want to talk about stop all i know that that is an unusual situation that brings us here today but our position is that has now it was barred from bringing the underlying petition because of its persistent statements to the p l r b which began many it's we're not talking about a stopping the border here we're talking about a stopping has not from bringing the litigation of it it's never the union court the you know it has never made a contrary to this parties to initiate a late proceeding before the n l r b after instituting one with the state agency so well they didn't say well in fact the board has recognized that it has the authority to do so in that case did it on another ground the one year bar but in notes that it would not want to allow the petition to go forward because of the forum shopping issue and we believe that that is consistent with a  here this is not just about you know a statement in a brief in two thousand and six where this very issue was raised that whether the n l r b would exercise jurisdiction over temple health system after it was  still remember that the exhibit in the kitchen was out of my head but there was that all of that has preceded under state law that was not in dispute and in fact the record here is largely through stipulation so i just want to make sure this  and in the parties proceed in the normal course of labor relations and continue to do so i want to then gratefully given the limited time touch on this issue of the use discretion in the decision on the review of the board in the light a management training and said management training basically means that we don't exercise our discretion if you are an employer and there are two two of the act we have we will exercise jurisdiction over you  that's not really we're not asking this court to rule on whether that's appropriate we are instead saying this is a very unique case there is no case that's been cited by either party that involves this situation that management training and a lot of the other cases involve contractors to exempt and these this is not a contractor temple health system is a wholly owned subsidiary which is heavily controlled by the university the university appoints all of the board members of the health system and removes them the sea all of the health system is employed by the university as are the key management employees the physicians who provide the care at the health system are  there is consolidated financial statements their temple employees do maintenance for the hospital temple police respond to emergencies at the hospital temple manages the computer networks the insurance policies in these circumstances trying to separate the house system from the university and treat them the way you would treat a contractor as was the management training we believe was arbitrary and prejudicial because it  is a political subdivision and therefore exempt from coverage of the national labor relations act the board examined the hopkins county factors and found that the individuals who administer the hospital are not subject to control by public officials or the general electorate and answering that question the board looked at the pertinent question defined by this court which is whether or not a majority of the board commonwealth's representations of well it excepted the evidence before it an eight hundred seventy two about the amount of control so the commonwealth audits the financial know there is that in this proceeding relations of the hospital it is not involved in collective bargaining the university board it does not approve collective bargaining agreements does not set wages so under the board's analysis there is no control over labor relations by the university of the hospital so there is even if the hospitals exempt let's assume it is that doesn't get you to an exemption for the hospital found did not create an exemption political subdivision children's hospital with the university of pittsburgh which has a very similar it's also a state related university in pennsylvania that the university remember has thirty six and i remember correctly thirty six trustees and it only twelve this are appointed by a government official so a majority of the university's board is not appointed by a political official public official no member of the hospital's board is appointed by a public official so when you're talking about the kind of public with their point their pointed by the health system but not by a republican is the hospital is very careful to say it is not to try to stop the board but the effect of applying a sample against the union is that the board cannot exercise its exclusive jurisdiction over this hospital  of your but the board and less the hospital is a political subdivision and is taken out of the coverage of the act the board has exclusive jurisdiction of the responses to the question of the russian  one there is no undue advantage or disadvantage in that the hospital put forward some changes to the differences between the state law and the federal law that would change but that's not the kind of disadvantage what is the there was that new hampshire was going to gain a lot if they changed it right because of the new development rights i mean that was you're going to do something that's wrong right that's right way to do it but the in here the union would gain something as well  in favor of the register but whether or not the board when it's deciding to exercise its jurisdiction either the exclusive jurisdiction discretionary jurisdiction does not go through and decide which statutory trying to decide over the years whether or not one part of sorry one party is going to be advantaged by the state or federal law it is not yet and i can  of the explanation for not asserting or even deciding whether to search whose was not a book or saying this isn't such a situation and i can't find any case where the board has applied any difference what position the parties take it at earlier dates it's up to the board to make that decision right i think that's right ok then why doesn't the board say that the war didn't say that in this opinion it seems to have embraced principles of  other words it seems to be accepted the notion that there are circumstances under which a party could be stopped judicially stopped in a board proceeding  but it's not something that comes before the board very often and i can't imagine the board applying these principles against parties that have taken alternate views before the board that this is a case where the board was not involved of here it's form shopping so obviously it's a different form i mean that's the concern different form and these matters then come into the courts as they have here right so the court is faced with the same  the within the twelve month election bar two competing petitions were filed and the board put off deciding if the board clearly had jurisdiction over we transform but the board did not process an now there's a twenty eight hundred nineteen proceeding it is not the kind of forum shopping that we saw in we transport where the two petitions were filed within the same year before two different bodies and we have had changes hundred five the hospital university split nothing came before the board until now but there were changes between the time the board declined years diction over the university and now that make the board asserting jurisdiction think we're under an r b jurisdiction if there's going to be this slip between temple university and the hospital because whenever you file the petition with the word that the incumbent union made that argument to this date l talking about the hospital so we're not talking about any body else for just the hospital what's the board asserts jurisdiction over the hospital when the board didn't  case the board had previously declined jurisdiction over the employers under rez care which was it is a previous case about discretionary jurisdiction the employers were joint employers with the county mental health department so th appealed it all the way to the state courts and the state courts said state does not have jurisdiction during this process the employers never consented to the elections they never bargained with the unions they continue to assert that the national labor relations board had jurisdiction and that's what's different there was a change in intervening board law the state courts notified the employers that the national board had jurisdiction and the employers never bargained under state law that's what makes this very different but what about the employer's argument here that the question of whether the board hester's stiction and that is either does or doesn't it can't turn on whether  back to malcolm x health center and mental health center of boulder county in both of those cases the state did not have jurisdiction at the time the board or at the time held an election neither this cases the state had jurisdiction but the issue was whether or not the election procedures comported with board law so the difference with summers living here is yes the state did not have jurisdiction but there were these intervening cases that told everyone the state did not have jurisdiction to the processes that that is not the case here the board very possibly has had jurisdiction since one thousand nine hundred five and what i don't know is what we do know that was never presented to the board rates nobody asked the board between ninety ninety five and today to take years to action but we also no indication that the so if we assume temple is exempt the first unit was certified in action seventy five and as the board said there is no indication or evidence or even contention that the think there might have been after two thousand and six but what was before the board was that the nine hundred seventy five unit and the two thousand and six year were the same and if you look at the nice the certification two thousand and six it says we're certifying the same unit that was previously certified so relations board in two thousand and six when the convent union took the position that its nationals were jurisdiction nope no party did the income that union could have done so by filing what's called a general box petition saying we want to reaffirm our majority status with the national board water because under general bucks any bar incumbent bargaining representative has the right any recognized represented has the right to come in and say i want to national board certification for whatever reason i have no idea why it elected not to the other question point you raised it anderson with the question of this will who's regulating the bargaining  relationships at the hospital do you have to two agencies and the answer is no given the board's decision in two thousand and seventeen on the p r offensive the labor relations board is by statute barred from asserting jurisdiction over any employer and labor has any employer covered by the national labor relations act so there's only at this point for purposes of both  pennsylvania labor relations board and the national labor relations board all bargaining relationships are governed by the national labor relations act with regard to the question of their menfolk those who just because by example after this case went before the court three months ago the companion passed not the overall view that union nurses was the subject of an unfair labor practice charge filed by someone under a da of super seniority if a complaint it issued and the union showed up and said wait a minute you don't have jurisdiction this is an act of public employee relation to me and i think appropriately the time where the non overlapping the perceive that what happened was the charge that that was filed with the p r b predated this petition so what's the difference between your hypothetical in this case be the union would be taking a contradictory position from the position of certain here with regard to the charge against us on the question of jurisdiction so you making a distinction between the union taking contradictory positions before this court as opposed to before the war that the distinction no what i'm saying is that the union cannot be in a position before ministry of agency at the same time taking although the union paid media assertion there was no final water there was no final water by the n l r b had the n r c come down with an order prior to and this is the time it didn't work out like this but at the n r c come down with  it was not because we didn't know how if assuming argue endo that the n l r b had declined jurisdiction all right that would have given that would make clear the p r b did have jurisdiction and we would have had to and while that's over there they come to the national board and say you have exclusive jurisdiction correct but so there's something there well except that it's it's the position but certainly we had to protect the emphasized by counsel for the board this was not a determination at temple university the one nine hundred seventy two decision was a statutory sexual example intersection to two it was discretionary based with the involvement of the commonwealth with the university and those were quite frankly the days when the board's position was a bit more facts specific an opaque best best summarized by the way in this court's decision human development association in into birds opinion in which case and human development association is your opinion i argue the other side in that your honor and i did not persuade you but i find it very useful to invite the court's attention to its wise wor there but there is also in that case your honor went through a long summary including an appendix of how the board was deciding rest care and long stretch management training changed out in one nine hundred ninety five  if churchill downs which is runs races and tukey were to which is exempted by discretion were set up a factory down the road and make bridle equipment or writing equipment and set up a retail chain churchill think is the magic phrase right  whereas here the employer was perfectly willing in night in two thousand and five or six to stipulate the way to election agreement and not only did it abide by the results but proceeded to still is this distinction that stand made by the attorney for the board and for the union that between the health system and the hospital is completely irrelevant here in terms of that discussion about the structure because the parties agreed that house system and the hospital are consider interchangeable and in fact the stipulations made clear the health system controls labor relations for the hospital so for purposes of who is really and in this case which are part of the board exam that's there were step elations it talks about the detail of all of that all of that is detailed it's at the health system level all of the employment policies are at the health system  moved so that that would be because the temple university can remove the board of the health system it is the house system that controls the labor relations so while the hospital has a separate point with twelve of thirty six directors so case this is not management training that is not these other cases where there are we're talking about contractors and i know that my time is up just very briefly on this issue of the timing and  of trying to have your cake and eat it too which is exactly the purpose of a softball and i know there are questions raised about some recording system we believe that the attempts to distinguish it on this issue of comedy are not persuasive and we detail that you know grief so finally i just we are not trying to ask the court here to make a broad pronouncement of you know the exercise of discretion or management training this is a very unique case both