in front of you a large record with a lot of pieces of paper but there are really five issues any one of which you could decide on its own result the case about reaching any of the others so let me identify for your st what those are and then i'll talk about them in which the st is the board's misinterpretation of the collective bargaining agreement the nd is the board's mis application of the work acquisition versus preservation dichotomy that the supreme court has rejected the th independent basis d for rejecting the court's decision and their failure to allow the union to present evidence together cover the work in dispute the work in just built is the maintenance and repair and the electrical maintenance and repair of stevedore cargo handling your quit and a tinder morgan's terminal in vancouver washington these provisions of the agreements that i just identified for you cover quote the maintenance and repair of all present and forthcoming stevedore cargo handling it from one seventy two and one seventy three so this plane language covers maintenance and repair generally it provides for no exception or limitation by trade or craft and the intends to cover electrical work in particular is shown in the reference to electronics in one dollar it uses that word precisely now elsewhere in the agreement there are exceptions to the broad grant of jurisdiction in the provisions that i just resided for you not of those exceptions applies to the work in just being here and all parties are in agreement about them but what these exceptions show is that when the party is intended to carve out work from this broad grant jurisdiction they did so expressed only because none of those exceptions apply here the work is covered under the interpret in this agreement selected by the parties to interpret their agreement and in both of those decisions the arbitrator found that the work was covered i refer to your honor's in particular to the decision of the coaster the appell you and the n l r b right in front of it the undeniable position of the parties who negotiated this contract the international longshore and warehouse union in the pacific maritime association those are the is if we were to find where you on one of these independent grounds is it your view that that means that the hate gets remanded back to the board yes that is i think the appropriate result here so let me let me just ask you for example although you have put it as a final point the rescue to qana which i guess i  bargaining unit as a whole when you are looking at the issue in a context of a multi employer bargaining relationship as this one is the board ignored this president without comment and that creates not only a legal problem but a real practical problem for the parties before you today the parties the i am thinking of you pm and pm these member companies organized themselves and their relationship with each other based on the existed in this case the bor cast aside all that authority without even acknowledging that they were doing that and upset the expectations of the industry affecting not only the parties in front of you start if i may with that question just to imposed which is how many of these errors with the court really even need to address it if it agrees that there are at least some errors here we agree with the i o w that any one of these  grounds would be enough to warrant sending this case back to the board because it is hard to dissin handle the various strains in the board's reasoning across the two decisions it is however difficult to read the board's unfair labor practice ruling without getting the sense that the board was upset that the a l j reconsidered the conclusion that the board had reached previously but that is exactly what  on the scope of the bargaining or how work preservation is defined would we then see the same ruling backed up here on appeal or is there something that would change in the administrative proceeding as a result of say a singular ruling on things well i think you very well might see this case back up in front of you and your owners may be familiar with the local joint executive board case that's been ping pong back and forth between the board in this court for close to twenty years and so i would encourage that i know that i have twenty years well we wouldn't want to wish that on anyone but i guess it would encourage the court at least to address you decision i think suggests that if the contract interpretation is wrong we're kind of done and here i think that ties together nicely with what the board concluded about the preclude a fact of the ten k ruling because one of the points of the ale jay emphasized and that the board rebuke to the ale j for emphasizing was pm a's position about the interpretation of the contract here and i think it's unusual to say the least  for the board to adopt an interpretation of an agreement that is rejected by both of the parties to that agreement as well as the arbitrator that the parties selected to determine the meaning of their agreement and i think that you know ms morton pointed out the courts and the arbitrators are the ones who have sort of primary authority in determining the meaning of a couple collective bargaining agreements the board's labor law expertise does not normally encompass that sort of role for collective bargaining agreement interpretation and so we would urge the court to take up that will hear and it's to novo review interpreted the contract language which there is not very much here it's only a few provisions pacific maritime association is a collective bargaining agent of about sixty different employers across the west coast so the agreement here  concerning in the grand scheme of thing is the board's interpretation of the work preservation doctrine by focusing just on whether i although you performed the same work for the same employer at the same location that contradicts the supreme court's case law as well as the court of appeals decisions that we've cited and unless the court has any other questions i see him over my time we would urge that the court uphold these principles and set aside the board's decision  ok before i respond to the specific issues that i've specific issues that my opponents raised just now i want to take a step back and just highlight some of the things in this case that are not in dispute particularly with regard to the work preservation to that ok so st of all there is no dispute here that i don't have you pursued grievances for work that did contravene the board section ten k decision as well as physically prevent i b e w members there is also known dispute this goes to the race judicata issue we've been hearing about the board consider both the section ten k determination and the evidence there as well as the additional unfair labor and what i would say your honor is we did not say they are race judicata however what the board found is that it would not permit the board's the board's precedent that it doesn't permit the time it has very specific language regarding what property needs to be repaired a property needs to be serviced and so it may be broader than it had been in the past but the parties in two thousand and eight that provision did not change from all of the years in which the electrical maintenance and repair work was being performed regularly by non i o w represented employees and so with regard to the dichotomy between work preservation and work acquisition and aisle a which i think this contract also speaks to what the board did in this decision is not worth to be preserved because if not what's not work then i also hear you regularly do it and then in addition the board absolutely consider the huddle a case in and explain that we do not here have the situation where a union is preserving along with an employer or that it may lose in the future to technology by stating it will get the functional equivalent of that work that was done at erst that very different electrical work that was done not by all the you regularly but by another trade union that was not done by at the view and now they want to take work that they have proven in no way throughout the course of this proceeding with their defense or preservation to prove that the work is functionally equivalent of work that they will be losing and without any of that there's been none of the wor preservation standards that that have been set forth by the board by appeals courts and by a just a pretty court that they've met on the backs of the ground in this case and so the board is not upsetting the apple cart with regard to labor relations on the east coast the west coast it's thing based on this particular bargain that was struck i don't abuse you with not entitled to electrical and then our work either because it had performed it or either actually i'm not quite sure given that the failure of proof was in this case what exactly the new work that's going to be done that will be you know electronics or what types of robots or what types of other different kinds of technology are going to come in because unlike an ira when there had been the containers ation and various other types of work that had been lost that had been ringback coming that had come to fruition and had been displaced that we could do hundred and sixteen might be worked on which there could be electrical work however at the time that these grievances were filed by all the view and the time that they physically blott members of might be to come into the work you know be reversed five years later what took so long your honor i not privy to all the machinations of the decision making process however i do know that when the board did inferences from the evidence in its expertise as the body that it is and determine that even given what was presented in the u l p hearing this was not a case where i don't know if you made a ballot or altered the burden of it were preservation and so actual looking to see if there might be story so yeah i guess that's it that's a good point i don't know i think that there was some litigation over no canning a new process about the board's warm during this time but i suppose i could say that even if that wasn't the case i would say a innocent explanation may have just been the board's decision making process but i take your point there were i am not aware of any quarrel or board recess in a presidential recess appointment decisions being being taking the time but that that could have been the underscores that the parties appear to agree on nothing but in particular you hearken back to the king and he ruling on evidence and as the foundation for the  work preservation go good things to me even if even if we agree  we i mean because that's your argument sure that if we if the faction tempi determination for whatever reason this court disagrees with the board in finding that the next attempt a determination again with the standard of deferential review is not legitimate then i do believe the case would need to be remanded back to the board in order for the board to consider its findings particularly with regard to this that action eight before to be violation which we can hear you i need you to i'm you know i'm sorry about that no no problem that it happens all the time so i was there at the clerk now thank you may please the court i'm elizabeth choppy on behalf of intervene w local forty eight which represents the journeyman electricians who have historically performs the disputed electrician work that's at issue here and in my limited time i want to follow up on some of the questions you had an underscore evidence showing that the licensed electrician work it at issue here is not the equivalent not functional or otherwise of any i l w u work that historically been for performed including mechanical mechanic or by claiming that this maintenance and repair language in the agreement that the put the burning agreement includes what they call electrical maintenance and repair but just using those words electrical maintenance and repair to refer to the two very distinct classes of work that of historical event performed by members of two completely separate trades doesn't render them functionally equivalent the maintenance and repair work and the i o w represented employees who have done that war historically have always been referred to as mechanics and there's multiple documents in the record showing that their mechanics he'll lector will work that's an issue here has never traditionally been referred to as maintenance and repair or mechanic or it's referred to in multiple documents as a service electrician or includes highly skilled electrician work rewiring shipping speed switches installing switches addressing voltage by there is no exhibit in the record not the contract between him for morgan and accurate electric the electrical contractor not job descriptions not invoices nothing that refers to the journeyman electrician work as maintenance and repair or mechanic or two totally different kinds of work and i also have you has attempted to acquire that war by making it seem equivalent by simply calling the electrician work electrical maintenance and repair and it's just not with the parties understood that the maintenance and repair work when they bargained that language the maintenance  tried to claim that long before two thousand and seven there's no evidence in the record that they ever tried to do that for thirty two years until two thousand and ten it's u electrical workers that appears nowhere in the board's analysis and we'll note that both of those issues were addressed by the administrative law judge and he rejected the arguments that i making here today  judge found the i only cases apply when there is significant change in an industry that threatens jobs my client was not obligated to show that anybody had lost their jobs yet they were not obligated to wait until people were out of work to try to protect their jobs what mattered was whether or not jobs are threatened and that is really undisputed here in two thousand and eight the parties entered an agreement that allowed maritime association and its member companies including gender morgan if it shows or not if they didn't to automate longshore jobs out of existence that's not something that would happen overnight it requires significant time and effort and  investment but it was something that the two thousand and eight agreement paved the way for a cataclysmic change in this industry and so what my client negotiated in response was the ability to expand and grow work that it had previously performs now miss baird says that it is relevance that my client had never done electrical work before in those cases the aisle way in those cases had never done the disputed were before the supreme court said that that is not determinative of whether or not they have a lawful work preservation objective what matters is whether jobs are threatened and whether the work being sought is the same or the functional equivalent of work the workers have traditionally performs and i refer your honour's in particular to i  but the board did not conduct that analysis at all the board did not analyze in its decision whether the work that my client is seeking is quote as am or functional equivalent of work that they have done before and i only ones that as and i'm quoting the supreme court they say whether the union has done the work before is quote only the beginning of the analysis for the board in this case it was the beginning of the end and that was clear legal  if the board had done this correct test of analyzing whether the work was the same or the functional equivalent of work that the isles of you had done before they would have concluded as the ail j did that my client had a candle under the word preservation analysis from the aisle a case that the supreme court has not said that there must be a direct causal relationship between the technological change and the which notes that that was an issue that the administrative law judge let apply in that case there wasn't a causal relationship between the work the aisle i was seeking and the technological changes that were happening industry