morning may please the court this case involves the boundaries between the national labor relations act and the railway labor act we're that boundary is drawn can have significant practical consequences because  statutes create different regimes for handling labor disputes the railway labor act treat industries treats the railroad industry in the airline industry differently to avoid strikes or other disturbances that could potentially disrupt interstate travel transportation and commerce the underlying question in this appeal is whether the national mediation board which is the agency responsible for diminish and ministeri act as arbitrarily changed its standard for determining whether an employer is covered by the r l a as a derivative carrier if so then the district court in this decision arbitrarily or abused its discretion in entering an injunction against prime flight that found it was covered by the national labor relations act in ordering it to recognize and bargain with the union under that act is it why opinion and cain are right which says a task of a district judge in a section tain j proceeding is twofold requiring a determination where there is reasonable cause to believe that on labor practices have been committed and if so whether the requested relief is just and proper and he he goes on to say that the question is whether the theories are so fatally flaw posture in this case making a determination whether the a p a has been violated in terms of the process by which this shift has taken place yes your honor under the reasonable cause of inquiry essentially what the court is called to do is to predict whether once the national real labor the national labor relations board issues its decision in the parallel unfair labor practice charge proceedings whether in those circumstances it's more likely than not that a court of appeals will affirm the board's decision and applying that inquiry here in fact the d c circuit decision in a b m on site provides a perfect illustration that is unlikely to occur here that is the procedural posture that that case was it was an n l r b decision that had gone up to the district court sorry had gone up to the court of appeals the national labor relations board had relied on the national mediation board's new standard and in that case the d c circuit concluded that that case that that was an arbitrary into whether substantively this way this could be done that's correct your honor and the reason it didn't go into it substantively and i think that's under the chancery doctor and is that the court itself could not supply a reason that the agency itself would fail to provide i believe your honor out of the reasonable cause standard which generally asked whether or not the board decision would likely be affirmed by a court of appeals i think now we we know the answer to that question in this case there is a parallel board proceeding and l j has rendered a decision the parties have filed their respective exceptions where the prime fly has filed as its exceptions to the that decision and it's now pending with the board and it's in the same procedural posture that the a b m on site case was and when it reached the d c circuit i think the question that this court is asked to decide is the board in that grillo proceeding assuming that it well first of all that's an assumption at this point that i'm not even sure that we can make an assumption that the board would affirm the jays or for sale just decision in light of the of the a b m on site decision but even assuming that the board did enforce that decision would a court of appeals be likely to in turn it in force that board decision and the answer to that is no and therefore in reviewing whether or not the district court had reasonable cause the answer to that is  no reasonable cause to believe that the ultimately that decision would be held by a court of appeals and it's also noteworthy your honor that i think considering weird where the a b m on site cases as well as to other cases that were similar upon remained from the d c circuit to the board the board has elected to actually refer those matters to the mediation board which is what the d c circuit suggested it should done at the  which now that change has been identified is arbitrary and capricious and not to have the effect of law by the d c circuit the proper thing for the court to have done was to apply the former standard and prior case long clearly want a case involving prime flight demonstrated under that prior standard court's opinion as in fact in playing both the traditional test and what you describe as the post two thousand and eleven mind of an and b cases of respect  and then we could avoid this entire issue could we not respect your honor i just it's a conditional you certainly are out of i think the court referred to the six factors in fact the m b continues to refer to the six that has done is in effect has applied just one of those factors personal yes your honor and to the detriment in fact it appears to no longer matter what the other five factors are  if a court appears to consider different factors a number of factors and focuses on one in particular does that mean that it has not in some way shape or form employed a multi factor test just says look i think that this deserves a little bit more weight i understand your honor i think the problem with the issue here  factors having any impact at all and this is not to say that the the mediation board perhaps it could change the episodes but what the d c circuit assizes it needs to provide an explanation for the change which is a change from prior practice that our board the n b a and by the board applying the former standard in saying that that is the standard that should apply here and make that then there's got to be a second argument and maybe this is what you mean by indirectly that making and i'd and i don't believe there's been any argument or suggestion of wavering any of the briefing here so we've not addressed that particular issue but there has not been any argument of waiver in this case with respect to that bargaining limitation the district courts bargaining or gets the parties to the table where the union can start addressing the issues confronting employees employees will see the union working for them in get the benefit of day to day that this is similar to prime flight the two thousand and eight case but there are a number of differences between this case in that case for instance according to a six factor test that  applied that personal decision what's your response i think that it can be read both ways but the argument but it certainly looks like he went through all the factors and applied them  the employer is concerned that the board's going to inform the court of appeals never enforce the board's applying bags here is unwarranted sense the board's not going to act here on tell if years back from will disagree with the regional directors determination the issue is whether or not the regional directors theory there's reasonable cause to believe his theory is correct here or there are regional directors theory is based on four to five years of precedent in there's no reason to think that that's going to change that the regional directors just sent back to the un and the decision on jurisdictions of the n b c is i don't know how long these things take but why should we do anything but why should we do anything at this point because not just wait because of the problem the issue the issue is here that because there is still reasonable cause to believe the board m b is going to the board will eventually assert jurisdiction over the employer here because there is irreparable harm to the employees saying that if the other b decision came down yesterday the wednesday and we were here order correct the that's yes that would be that would likely be correct technically the board has its independent authority to assert jurisdiction and there is always the possibility the board might disagree with the m p s decision but realistically isn't and then let us know where things stand problem is if that if the if the courts if the interior order is disrupted irreparable harm caused by the ploy is refusal to bargain to your benefit oh if i see what you're saying if you if we if you just hold the case in a benz well the problem is there is this bargaining limitation that we believe is detrimental to the efficacy of bargaining staffing limitation yes to discuss its actual effect on their bargaining but we just inherently speaking it's going to get what it should cause impediments can you can you point to a specific statutory provision to prevent any dabbling with the substance of bargaining essentially despite the board's wide remedial powers and derivative leavis the district courts and for some of the acts  purposes the courts the courts have interpreted the law to say if there is no you are in it is against the u s policy of the united states for that for a court or any sort of administr many people working this time at this place jet blue gives prime flight it's its flight schedules and then audits from flight to make sure it's things like wheelchair wait times and things like that to make sure that understaffing the contract this is a very typical contract will arrangement in lots of unionized contractors are able to bargain about this without special exceptions could you can i just step back for a moment and could you help me understand the posture administratively asked what the scotchman's what proceedings are actually presently going on as to whether there should be a rescission of be a recession is that a rescission as to that specific case or is there rescission and policy and underway and where does that stand what's the process in terms of me our elaine yeah and when and when can we know so and how do we send the message that we want to know so there are right now it's pending before the m b a in not this case but other cases board has referred this issue the a b m issue to the m b notably the district court did not pass judgment on that policy and there is no in no there's no expectation that  expeditiously they know that there's are ten days involved in this issue but that's the best we can do we have no authority over them to move it any faster than they're moving so they they make a decision they tell you about it and then you are likely current policy with an explanation the board will simply apply to this case if the m b creates some brand new standard there's a spa civility the board with refer this case to them to apply their new standard th good morning your honour's to start with that question right now all the members of the enemies terms have expired they remain in place until their  successors are installed but they're not there and the odds that the n m b can do anything quickly are i think approaching zero the airway case which was one of the main cases that the enemy be issued on this subject was our case and it sat at the end m b for a year and that was when the n m b members were in place and functioning is that the court of appeals in d c has affirmed jurisdiction in the allied aviation case came out after a b m onsight did not say board's decision finding jurisdiction over allied a b asian happens to be the company that does all the fueling at newark airport and they said the board a aviation international services case out of orlando again a case involving fueling and they issued a decision finding jurisdiction despite the employer arguing circuit said yes you've can the board has considered the six factors i think from my point of view the calling at the bag test for instance is a test that looks at all six factors it prioritizes the personnel decisions but if you look at for instance pegs what are the six factors it looked at training it looked at control of business operations and it looked at the other factors and it found that the companies argument was insufficient so for instance in bags it noted that a lot of the training was training mandated by the government and it held there as it has in other cases that we're training is mandated by the government then the fact that the airline says passes that on to the contractor is not jurisdictionally significant so it examine these factors it examined how much you quit meant was provided by the contractor and how much by the carrier and examine the premises that were provided all these factors are being looked at and have been throughout it's just a question that now the board in the n m b and the n l r b following it has finally given some structure and priority because prior to the bags test if you will this line of cases you had a totality of circumstances a list of factors that had no measuring stick and had no priority and as courts have pointed out in that kind of circumstance it's just agency went or it can give way to ask you just declare if i understand you r your discussion about your argument about cases subsequent to a b m onsite service but with respect to what happened in a b m onsite service that is correct and why why why is that what is it that your understanding is what is your understanding of about what is expected of the n m p well the one cases are those advisory opinions although the board has reserved to itself the right it says it does not automatically accept them but it has quite a great majority cases of not always accepted the advisory let's say in the perfect world in the perfect world we would hear next week as to the n m d's advisory opinion of you know or be would here in that circumstance it makes sense i realize is a hypothetical situations not the situation for the reasons that you describe wouldn't make sense for this court to wait well i understand the considerations that would lead you in that direction but one of the things i think's been missing from the discussion is what did congress mean when it adopted this statute and would finding prime flight to be under the r l a is it even consistent with the statute now what you're faced in in this circumstance is the reasonable cause standard and as i think you questions of pointed out neither a b m onsite nor prime flight has made any argument whatsoever that finding and l r a jurisdiction over prime flight is inconsistent with the statute but i would go beyond that and say finding our l a jurisdiction over prime flight is in fact inconsistent with the statute inconsistent with considerable body of supreme court court precedent as we've argued in the brief including for instance dobbs houses a six circuit case which is the only appellate case that has gotten into the merits of whether a company honey i don't remember the date it was a think a couple months after the decision came down i don't have that day if we did this would have been in two thousand and seventeen when this calendar year really not remembering the date your honor but my memory was a couple of months after the decision came down and but that very general member can i ask your colleague do you so you can tell us ok if i may your honors a man happy to speak more about the jurisdictional issue of that if you have additional questions would like to address the impact on the bargaining animation because i believe the company is just waiting for this decision in order to figure out whether it really has to bargain or not they are coming to the table they are making proposals i'm not suggesting that they're not carrying out the form of bargaining but i don't think they believe that they're going to have to deal with the union and i think they believe that because they're hoping that you will dissolve the ten j and eliminate all bargaining and as long as as an effect on the market a negative effect on absolutely absolutely your honor and just to to go over the  impact of the bargaining limitation as as the employers pointed out fifty percent or more of the positions in this bargaining unit are what they refer to is non static meaning the hours and the schedules change and more one of the major issues right up there with anything else that we faced when organizing these workers and talking to them is particularly the wheelchair workers get their hours cut and it is you know some base trying to make a living they're trying to put together hours so they can pay their rent and then their hours get cut and we have complaints from our bargaining committee and other members long time senior employees get their hours cut brand new employees come in get fuller schedules as the work goes up and down there's not just the question of how many hours will be worked but how many of those are going to be done by full time jobs how many on for our schedules how many on six hours schedules these are all decisions prime flight makes that have an enormous impact on the bargaining unit and therefore on the bargaining what can we do about health care when we don't know who's a full time employee and who isn't one can hypothetically say well they should give health care to everybody but that's not how the real world works if we're actually reaching an agreement it's going to have different health care terms and perhaps other terms for full time employees and for part time employees virtually every contract i'm familiar with works like that how are you going to know who in this unit is full and part time how do we say to people we the un are protecting your interest in this job because you can count on getting these hours and we were deprived of that and it is as i said it's one of the main issues we do bargaining surveys we ask our members what's on their minds we talk to people this is what we hear just as much as anything else just as much as wages just as much as any other issue and and more than than the great majority of the issues are very helpful i have a question and if you can answer maybe your colleague can not there i mean there's no do it as far as i'm aware there's absolutely no general policy of staying cases step in those cases presumably where the u s or it's fairly not  based on the sixth act tests based on just one test and they say we don't need x to iran and that was the d c circuit characterize the decision that way i don't believe that's an accurate characterization i don't believe that's what any of the regional directors of done and i don't believe it's what any of the administrative law judges have done for instance we had to regional director decisions on elections directing elections finding jurisdiction with a prime flight since then one in philadelphia one in the guardia and the regional directors very carefully go through all six factors now how you wait though and it's not just how you weight those factors when you look say it a question of control of business operations that's one of the factors you have to decide what is it that constitutes jurisdictionally important control so the dobb's house courts and some of the regional directors have stressed for instance that an independent contractor that operates in the marketplace pinning for work as its own independent company with its own business policies and plans that shows a lack of a lack of jurisdictionally significant control that's in line with reynolds and a number of the appellate cases under the carrier taxing act and the other railway legislation some of the cases to which the employer refers sees something like the carrier specifying the nature of the work it wants performed as evidence of jurisdictionally significant control so it's a question of which factors are you looking at because i believe everybody is looking at the same factors there's very much a question of what in among those factors what's the priority and what you consider showing control in what you consider levels of answer to that it is possible and that we have worked out an agreement with prime flight and nothing changes so ok there's a decision that it's our ally but we've worked out a contract and they're willing to live with it it's possible i'm not saying that that's entirely it's certainly not certain but we have a very good history of getting along with employers so we're hopeful that a decision would not really change anything in that regard it is possible that the company would seek to withdraw a recognition saying oh we were you know required to recognize you now we're not  and there would be a legal argument over that we would of course oppose it and what their status would be under the r l a having recognized us as is basically unclear there are no cases the real deal specifically with these this that fact pattern if that's the way it developed but yes and thank you six factors the board continues to refer to six factors judge kogan referred to six factors and so the question is has or actually been a change and in fact many different participants in this process have identified there has in fact in a change since two thousand judge kogan himself identified a change on page eight of his opinion he acknowledged it is appears to me that there has been a change since two thousand and thirteen and that the board is now ceding jurisdiction over circumstances where previously standards and that's it that's what the d c circuit found and we have not talked a lot about the substance of that change because as the d c circuit the issue here is the fact that the n b a and the board national relations board failed to explain that change and it's their obligation first instance to do that and that's what that's done is now what is it is occurring the national labor relations board has sent the issue to the m b and asked them in its referral letters and i should note that those were the three referral letters from the labor board to the enemy are attached as exhibits to our motion to hold the case in advance that we filed a month or two ago i parties negotiations are broken down there has not been an on for labor practice for example for a labor practice charge filed relating to the negotiations they are ongoing we believe frankly that there wouldn't be any harm to should proceed by that point but a temporary abeyance to see what happens i think does make sense the counsel for the region also suggested earth raise the issue of the scope of judge kogan injunction and his elimination of the of negotiating over employment levels in hours but i think it's important to look at levels that issues usually the subject i think it usually is your honor but i think also that the counsel for the board acknowledged that that was a finding of fact here was a finding of fact by judge kogan the jet blue has substantial control over the staffing levels that i was a fact finding by judge kogan and so that would need to be reviewed under i believe the fact the standard review for fact finding which become the board has not only ultimate the board rules in favor of the union at that point judge bogans injunction go away and presumably they would be bargaining over the full scope of their relationship so it's a provisional remedy and it makes sense in light of the alleged harm that was that was presented in this case and that is that the that they need to see some activity by the union and while they're there is negotiating of it may not be on the full scope of everything that the new like but in the context of the election irreparable harm can determine that that was sufficient to address that so we believe that there's a proper limitation and again it's a provisional limitation