technician crew chief in san diego california for american airlines i was terminated from employment on september twenty third two thousand and eleven for the second time and the second time for me to isn't here today i think i should start with the union now the union is riding on the coattails of americans case and they have not proven that they're an part of the employer yes and they did make a mention of what they are there adversarial advocate for the employees they are not the agents for american but they can seek to enforce a settlement agreement that becomes part of a department of labor well labor order him a court party can do that can pay i heard the settlement agreement well the problem is that there is a settlement agreement becomes part of the department of labor order and though this union is tempting to enforce it here now it may not be able to enforce it here because it's not an agent but then that says straightforward issue of contract interpretation right ok so it isn't a matter that there wouldn't be any jurisdiction in the court well it would just mean that one of they couldn't force it correct correct because they are not they were parties to the original agreement right if they had parties to the original claim and it would be a problem and you're forcing it but they want to place so that's why they have to be an agent because they were at a party where they didn't realize they were an agent until one of these names when they changed council of august nineteenth of two thousand agreement and release and the order approves that settlement and release but it doesn't incorporate it as an order of the agency so is that a private contract between american airlines and you or is that an order of the department of labor merely because they approved the agreement it was a private contract but if the order is in forcing this agreement correct ye the why would not the order be a part of the agreement or would the agreement be a part of the order there's no way for the department to enforce this agreement if there isn't an agreement on the order is simply to enforce the agreement so why is it not part of the order i mean you can't even enforce the order without reading the agreement i believe judge administrative law judge paul mapes did approve and said that there was no safety concerns however what within the the agreement addressed the issue but put your non address you're not answering my question my question is there would be no reason for the department of labor order if it weren't in forcing this settlement agreement he even though the agreement is not right in the order so i don't know how we would be able to do anything if they settlement argument is they're not a nation just it's a pretty good argument well hear what the other side has to say about it but i don't think there's anything more i say about that so let's go watch american airlines if the question i guess is before the court is is is question of the fact that there was a an order to arbitrate and then just missiles that you're talking about i know american is saying that the knight has no jurisdiction to be hearing this appeal you're saying that i thought i understood and you're saying the williams case and in the williams case it was quite detailed about explaining how i had the rights to go and make a complaint under the with what lower protection program yes but also that there is no private right of action in federal court with regard to pursued their twenty one for the second time through the federal department of social american so that if there's an exception within the agreement that says that i could go to the california department of labor standards and foresman when i did do that they said well you also have the rights to go to the federal osha concordant me with because they have a special unit of people to investigate the airlines and it's federal so i did  they rules and so i am not sure where this is covering is where it's going that american airlines participated in the in the administration proceedings up to a point in all the sun said you have to arbitrate is ours go and they were forced to counsel for american airlines that described this i did not know anything about this until i emailed the partment of labor secretary of labor hilda solis on march thirty first of tw three why are i getting a response back from the department of a year labor investigators well that's when i got these emails that said well they've refused to cooperate that they told us of an arbitration and then they said we're going to reestablish reestablish the investigation and with or without american cooperation they were going to make a decision and that's when american on may eleventh two thousand and twelve turned in a letter to the parliament of labor and in that letter it's scribed how critical my position was as a crew chief as an aircraft means technician to american airlines operation which is an interstate commerce operation how critical was the safety of the of that operation if i could read to you what the they wrote well mr mo any we've we've looked at the record but if i could just ask you to jump ahead a month later  the june sixth letter that you received same year two thousand and twelve which is in the record at thirty six and it seems to me that it it explains a bit about the process along with reading the statute and it sounds as if this agency reviews an error twenty one complaint and decides whether there is reasonable cause to believe it's meritorious and if they do they issue a plume an airy order if somebody wants to challenge it they can challenge it it becomes a final order but the june six letter tells us what happens if they find that there is no reasonable cause and they say that the department of labor does not represent any party in the hearing that you can demand each party presents its your own case it's an adversarial proceeding and you can present evidence for the record once you get to the point that the agency concludes there's no reasonable cause to believe there's a violation and you wish to pursue a remedy why can't that remedy be subject to a private agreement compelling or dictating that it go to arbitration i believe the ninth circuit has addressed that issue and what they have said is that section four does not give parties license to wreak erik to rise an existing controversy or manufacture a new controversy in order to obtain a federal court's aid in compelling arbitration but did you hear what he ask you what he says is  department of labor department of labor as either you have a claim or you don't so you don't have a claim you can still file a claim what says that that can't be arbitrated to that point well the department of labor administrative review board determined that it could not be done as the administratively law judge had tried to implement on may fourteenth  that well it says defendants and district courts have adopted the position that contracting parties may invoke the authority of the efik to decide the question of whether the parties can invoke the authority of this position puts the cart before the horse section four has a simply has simply no epic it realty where section one exempts the contract from the f a a and private contracting parties cannot through the insertion of a right so why then if you're otherwise powerful in federal court why don't we get to enforce the contract what difference does it make whether the f a a applies or doesn't apply well it just as i read that there's that there's no way to delegate that there's no delegate raising cause it gives the authority to the district court to compel the arbitration but if you call and try it and what i do not putting nothing to do with the arbitration or your contract within the country there was a statement that that addressed the air twenty one and in that letter that reference in air twenty twenty one was that a lawsuit of wrongful termination violation of public policy was preempted by air twenty one i was i was saying that and that's what i was determining as well as the by going to california department of labor and sanders and four spent they said that you have the rights to go to the federal o american airlines i understand that he says that at first there and some sub rosa way you were taking the position that had be arbitrated but in a non some pros away you participated in the administrative proceedings i understand there was a september twenty three two thousand and eleven on september twenty ninth just about a week later he demanded arbitration which commenced arbitration proceedings on october fifth he filed his claim with the department of labor then on november twenty well let me let me pause right here did the filing stay the department of labor's investigation under air twenty one american took the position that it did and there was an interaction with the department of labor ultimately we american elected to participate in that ocean based occasion submitted its response because osha threatened to issue a ruling without a participation when did when did the deal well issue it's no reasonable cause to believe determination i was june sixth two thousand and twelve which was about a month after a submitted its position stephen in may of two thousand and twelve and then what happened correct and what we have in front of us as i understand it is a district court finding that there was no a waiver correct that's correct and so at that point we have to sustain or deny that based on an abuse of discretion or substantial evidence which ever stand you suggest right if it's a fang a fact this court's position is that it's a clear error standard yes all right so then you're saying the delay were not do based on what you've told us thus far that's absolute tell us what are the facts that sorry if i missed or winnie has not be but it was an arbitration of state law claims not of the air twenty one is that we call this are not exactly this i and they are in the sense that they and that they what was decided could be pretty close up but one is based on state law cause of action and the other was based on this special federal statute for airline people right  proceeding in anybody's favor right that's not correct the mr mom when you proceeded to arbitration in the first arbitration the arbitrator after two weeks of arbitration hearings granted an award in n all of various forms of not been favorable to him i believe that's correct yes so there is no prejudice in this particular situation and relates the waiver he's had his opportunity to every step of the way for osha for the first  when he before i mean it we still have a contract it still says you're supposed to arbitrate you still have a basis for being in federal court which might be a little questionable but you have a basis which is the order from under state law as well where there is no section one exemption so even if if he was down to the transportation worker invasion communism of the narrow definition adopted by this court in your supreme court under state law he would still be compelled to arbitrat and where we get there we have to have an employment agreement we don't have an employment and we have a supplement agreement negotiated by a party well you have to get there again to be outside the f a a but so then the real question therefore contrary congressional command in the competing statute excluding the statute from arbitration and if there is not an express country a congressional committee and then those claims for example if you look at the text of your twenty one there is no contra command located anywhere why i mean in this case to even have to get there because what is being enforced is a order to deal well in an air twenty one case so therefore if one reads that provision as providing for arbitration and and it's in order i think the air twenty one don't think there's any dispute as to the correctness of that the question i have though is are do you take the position that the approval of the settlement agreement and release amounted to incorporation of the terms of the settlement agreement and release into an order of the department of labor has it does in fact the regulations implementing air twenty one state that settlement agreement can be enforced by the record but those two thousand and three regulations were not adopted until after this settlement agreement was approved by the dio well isn't that correct and it's also but it's also with the air  instructed if you were in their decision reversing arbitration order from the well they said you have to go to the district court and you went to the district court but whether you go to the district court on  under the statutory provision first of all they can't decide the subject matter jurisdiction of the district court and in this case here there's diversity jurisdiction in any other event  american airlines but that it can you actually stand up here with a straight face in time that you're an agent american airlines what i can tell you is this that the entire premise of his claim is that we are agents his premise was as i understand it at least or at least the agency's premise was that you were a contractor which is also a little surprising but at least it wasn't that you were an agent his his action if you go back to his original complaint that's moved filed up to over fifty thousand and eleven it was filed as a single document both american airlines and not local five one one but local five six four which is which he argues was our predecessor and we say is not our predecessor and with this want to make that you know for the record but he filed against us in a single document as co respondents and the basis of his claim was that the two parties the two corresponden engaged in a concerted quote concerted effort orchestrated by american airlines with the assistance of the transport workers union that now occasionally our nation then you go from there to the fact that in order to have a claim under air twenty one statute the party has to allege a claim against either a carrier air carrier or a contractor ira subcontractor still not an agent i mean none of those things  property as a union and allegedly and this is what the administrative review board remanded to the ministry of luggage to investigate is whether we were providing labor services and you will some day if this case orchestrating a conspiracy between union members and management in order orchestrate his determination that that fits within the concept of agency closely enough given the federal policy under doesn't matter with regard to american airlines but you're saying american with regard to you because that gets you further than you would get a straight contract case well i mean i guess or to the arbitrator is that what you're saying i would say in either case we're we are a party that's engaged in in no action as a practical matter merican airlines decided to terminate an individual this case goes forward without american airlines or effectively bereft of the ability to defend ourselves except by subpoenaing witnesses and managers from merican airlines and saying could you please explain to the court what you did the only way that we get involved is based on allegations that somehow we were assisting them that they were we were working with them to implement their plan did you ever say this to the district court yes we did well it seems interesting to me that when my reading of it there is no place where the union ever alleges there are an agent there's no place the union ever alleges that there are any the fact that this a court said the court is aware plaintiff is not a party to the frame and the language of the provision covers disputes between the parties and their agents but they're not agents any doubts concerning the scope of arbiter bull association should be resolved in favor of arbitration so that this record hits this issue square on the head and then punts says well because i've got arbitrate most things i'm going to make an  r anyway so that enough the district court to judge it on page eight of the district court's decision the district court did find that we fit within the language  you want to give it to me after you guess i thought i was because i looked through the district court and the best i could come up with this is any doubts concerning the scope of our betrayal issue should be rolled in favor of arbitration according  n is appropriate in other words he said i don't think there are agents i'm really not sure there are agents and therefore but i don't care we are betrayed everything so i'm going to make you arbitrary i mean i had a tough time understanding because i think it's your burden to establish as a prerequisite to the right to arbitration that you are an agent we argued before we made the same arguments to to the district court in the district court as i recall and i will submit the references subsequent oral argument that that we fit within the laundry list of american airlines and its affiliates of cit subsidiaries representatives agents that was that the intent overall intent of that language was that someone who is supposedly working with american airlines to  for which is the department of labor like what they're saying but you haven't there yes there is a form form i'm saying as a practical matter because of our subordinate status and relationship with american airlines we wouldn't be able to defend ourselves in terms of the control of the witnesses we would have to be explaining and defending and having somebody else's action and it's the intent of that two thousand and two settlement agreement that an entity in our position wouldn't be a different arbitration that was about the state law that was there has been some misapprehension there the district court issued an order compelling arbitration in the two parallel cases with respect to the american airlines dispute with respect to the local five ninety one both respect to the your twenty one claims against have you petition to confirm we have not yet but just like a triple but american airlines has already filed its petition to confirm the right word in its favor or do you happen to know the status o the fact that this arbitration agreement was that they were holding a superior ground where they they said that the promise that i to please bear with me the this is a matter of fraud but fraud that goes to the execution of an x x inception of the contract so that the promises do not know what they are signing the contract lacks mutual a was unclear to them i believe that the whole thing was unclear to them but it was clear to me that ere twenty one was not silent in that settlement agreement that it it preempted state court and that's where i went i there's a there's an administrative scheme as you know we're investigating and then going through the hearing being able to heal ok thank you very much thank you for the case of the few cases american