business advantage by lobbying the county commissioners concerning the development agreement that the commission was seeking this summary judgment was quite proper under a long line of nin circuit cases and supreme court cases involving the north pennington doctrine the doctrine explaining in applying the first amendment to tort claims arising from petitioning activities of cases make it clear that courts do not policed speech made in legislative and political arena as opposed to speech and in judicial for here what you had w venetians a legislative type decision a special agreement from the county commissioners so that it would not have to follow the normal development procedures set out in the county codes which require final approval a traffic study before us and start building your new resort now there are no statutory standards for how such development agreements should be entered into it's a discretionary decision by elected officials concern over public welfare or harmony with the general purpose of the comprehensive plan or harmony with the objectives of the zoning ordinance those are all valid grounds for rejecting a v under clark county ordinance so again you have a decision that is not adjudicated in nature its legislative or political you don't have a swearing and what this is you don't have cross examination you have the same body which creates the standards alternately just making the decision on the variance very different then judicial type decision making if you get to court consider all of the district court was presented with the case law by our side concerning the north pennington doctrine and presented with the kinds of decisions that we were lobbying on right and the venetian in its opposition never argue goal this is really a judicial type decision that's an argument you're seeing for the first time on appeal from the venetian that this was somehow a judicial type of decision under this circuit's case law it's incumbent nine of how the sham exception to the nor pennington doctrine is met so you have had plenty of chances given the venetian to get around the north pennington doctrine to show judge pro how that was an circuits prior decisions in order to prevent these sorts of claims from deterring speech but this court insists on pleading expressly how you're meeting this sham exception to nor pennington if you're going to sue someone over how they lobbied elected officials and there is plenty of evidence in the record as to what we lobbied about and it's also part of this court's previous case concerning the access to the public sidewalk where this court again went through how there was lobbying of the county commissioners about do we have a development agreement and now there was some sort of quasi judicial decisions the venetian would have had to have pled to you and to the court below that the union's lobbying was objectively baseless that it was frivolous in its content but if you look at what we were lobbying about we were simply saying to the county commissioners that their own staff was right about two key issues and i'm completely confused as to what you're doing who you represent i represent the calling area  detailed in their complaint with specificity exactly how the sham exception would alter that result they didn't do it and so you're saying to the public or don't remain and give them a chance to do it because they already had their manner as opposed to a legislative manner exactly your honor and this isn't a licensing board this is the development of the game made by the county commission and they have very broad standards and my point is simply that the first of three decisions we believe the district court acted correctly a defense on all three types of claims and granted a summary judgment on the north paddington issue relatively early on in the case still two years after the complaint had been filed after  finally got you figured out but i think that if you want to continue to confuse me go right i think i mean i've never heard somebody stand up before and respond arguments that haven't been made yet in oral argument go ahead so make any this court's decision in granite rock implied promises are grist for the arbitral mill they are standard part of what labor arbitrators address so that the district court erred in not applying this well established body of law to the very broad arbitration clause that we have in our agreement and it would be your cla be the other side's claims for breach of the imply covenant and how would they differ from its claims for breach of the express provision regarding picketing your honor i don't think that there are  and what you're talking about doesn't fall within that action exactly our position is that the normal presumption of arbitration must apply to everything except for claims specifically excepted from the arbitration clause but instead what the venetian argued as well because there is overlap in fact then therefore we get the same exemption and there is no case law that has been cited in support of that and in fact the supreme court an employer or union drag the other into court into federal court over an implied covenant claim those sorts of claims are very nebulous can be brought any time one party or the other is upset with the other speech and let me assure you in labor relations we get upset at each other all the time and i believe the courts will be affected if this decision is allowed to stand and you can avoid arbitrating major part of our pitch the other part of our pitch would be that this is we did not act in bad faith that essentially the employer acted in bad faith and we were merely responding to their cause which they aren't in the labor relations field she was experienced arbitrators to make those decisions in this case involves a good deal of the past practice of the industry and the parties and that's something that arbitrator is much more expert over section twenty two or one of the contract that is a dispute that is expressed only from the arbitration provision so the question of express and this dispute is not covered by arbitration and that is that you only get to arbitration under the contract with respect to a dispute that has not been resolved by the board of adjustment that that's that's another slight misrepresentation to the court if you look at our complaint which is found in the appellants opening excerpt of records that tabs one when you start at the bottom of page three and you go protects all of this activity i think it's a it protects all of this activity but it protects it absolutely yeah ok there it is and you're saying that what's wrong with that is summary judgment was improperly granted because there are tribal issues of fact i guess as to whether the activities were reading if tamina was a proper legislative lobby that's protected by north and there are three tribal issue one is whether or not the column marry in the provisions of the collective bargaining agreement specifically twenty two a one wait its first amendment protection for this kind of activity under the the oral argument on the summary judgment was when the pot of case and this claim of absolute privilege for lobbying activities first appeared said you can renew your motion after discovering with respect to the north kensington ruling he didn't allow any opportunity to renew the question after discovering it was an absolute ruling made with my recollection is that the argument was made this was not legislated a legislative tight lobbying that was talked about i honestly do not recall as to whether or not there was an argument made with respect to waiver i think it may have been in our papers but i cannot honestly recall it was not now the problems you get into decision itself which makes it clear where you have a governmental body that in fact operates under stand or requiring notice hearing evidence and subject to review for substantial evidence you don't have a legislative you don't have the unfettered discretion the pollen is arguing here and that's one reason why we claim one of my concerns i want to make is that there are several slightly judgment motions that were made below and i want to make certain number one that we were dealing finding that the term employer's business i understand action twenty two or one of the collective bargaining agreement was limited strictly to the daily operation of the this was a trial and stipulated tax now it was a trial on a agreed record and agreed record and it was it came about by way of an agreement to submit a written record to the district  in the record yes well let me tell you the problem i have with your argument starts out by saying this agreement is made and entered into such and such a date by a bit between the las vegas sands hotel casino big block letters  to reflect that as being the name and they address the first paragraph of the agreement shall be modified to reflect the correct name and address of the employer as set forth above then talks about the effective date the operative agreement between the part advantage of occasion item becomes clear when the employer recognizes the union as a collective bargaining representative for the employer's employees employed at its  paragraph that's fine we have no quarrel with that but what it makes it clear is when these parties very very sophisticated negotiating parties wanted to talk eight specific the syllabus they knew exactly how to do that they did it in one of the one they did it in for a one where they use the word the employers the spam list meant in labor negotiators certainly knew how to use limiting language when they intended the use of this decision by the district court came about as a result of the trial it was a trial on a written record there was no test i know but it was still a trial so what standard of review what deference is the district court entitle to with respect to this determination because the district court made both an add on ambiguous and be that he was a state court judge just like our third colleague here on a bench and you know i used to argue look court we can look at these documents just like the district court did you know why should we give deference to the district court you got better eyes than we do you know maybe i don't know if we're looking at the same document why is it reviewed you know when arthur used to argue with me and then you know he finally came up with a case that said that even though the district court looks at these documents and all of that but does fill in the context of the trial i believe our reviews for clearing are he's convinced me now you may convince give me a case of to scratch wrong but i kind of think i may be wrong yes that is true the problem is if you actually go and read that the those four sections then make it very clear when the parties intended to talk about a specific location they did it is sort of finding isn't supported by as we argue in the briefs that what the district court relied on was quote unquote expert testimony with respect to the interpretation of an agreement that didn't supply a missing term this isn't a situation where you put industry practice  to now when you tell me what you think about that i know what you're talking about let me begin by addressing the issue of whether arbitration is required of the implied covenant claim council argued that this contract record at tab twenty eight page forty one of the bottom has a very broad definition of what a grievance is if that dispute or difference of opinion between the union employer meaning interpretation application or employees or alleged violation of any pretty vision of this agreement and what we have here is they argue there's an implied provision of the agreement and that we have violated that that is covered by the arbitration clause now if you look at what arbitration is provided for in the following pages it doesn't say you must proceed to a board of adjustment first before you can get a to process their grievances in the first instance but more importantly this court and the supreme court have made it clear that procedural questions about whether you follow the proper procedure for grievances are for the arbitrator not for the courts to add twenty seven page whatever they wanted and we included the entire opposition so the court could see how a lot of the opposition to your nor pennington argument exactly and if they are contending that they covered it it would be incumbent on them to give you a full transcript of the oral arguments they've given you a partial transcript in which we again go to the nor pennington doctrine it seems to me incumbent upon them at oral argument before the district court to complain that there is a sham exception applicable here and their version of the stand exception looked carefully of what council has talked about an improper purpose for a lobbying activities that's not the sham exception and motivation of the person who's complaining to the government is not what the courts look at in the first instance sham exception applies when you have an objective lead based appeal in an adjudicator forum and neither side of of that has been met here and i urge the court to consider professional real estate investors the supreme court decision that is supreme court against those we don't go to the motivation of the person engaged in study anybody's selfish when they're trying to influence the agreement because even after modified as counsel indicates it still indicates the employer is las vegas sands and i think a standard hotel casino d b a shows we understood what the employer's business was the employer's business was the sands hotel casino and if that d b a clause weren't convincing by itself there is a side agreement concerning organizing of properties other than the about hiring meaning workers in the first place you wouldn't be you now if they want to read it when you can't read it both ways can you i mean it exactly they argued that the agreement terminated got a new employer was being created