thirteen forty two forty eight international union of operating engineers local eighteen vs laborers international union of all oral argument not to exceed fifteen minutes or so mr fatal for in the time of ancient rome it was a pagan tradition for parties that wish to enter into a legal legally binding agreement to affix a wax seal that written document and then make an impression of their front tooth on that very silly old iron isn't part of the contract here your client doesn't have any any anything to do with the contract there's no signature there's no intent there's nothing to bind the local union to the contract the local union in this case a judge murphy is a local affiliate of the international union of operating engineers the international union of operating engineers was a contracting party negotiated and executed the agreement for the specific benefit a local eighteen but that's fine it doesn't mean that your client is a party to the contract as long as my client is a third party beneficiary under the contract it doesn't title to enforce the terms of provisions in the benefits of that agreement  is suing the laborers international union headquartered in washington d c the party that ended negotiated and executed the agreement it is suing the district council for the labors here in ohio which is apparent body for the laborers locals in ohio as well as other not suing the locals we are suing the locals example their how are they a party they are bound by virtue of the constitution their own bylaws the international laborers international union of north america's constitution the bylaws for that entity as well as the constitution and bylaws for the district council as well as each individual locals bylaws were choir's them how do you answer the analogous question to judge murphy's question if they're not a party to the contract or some other provision which says that they have to assist party to the contract and come flying with it but they're not parties to the contract but you can't use a third party beneficiary analysis for them to know but by virtue of entering into the agreement on the international level it suffices to bind the subsidiaries the international is made up of nothing but its subsidiary members the international represents no members there is an agent a kind of the it is an agent principal agent theory in that regard the international unions let's go through a hypothetical  union represents a homeowner another union represents a painting company the painting company and the homeowner enter into a contract t in exchange for you painting my house i want you to pay my son's to wish and at the local high school the sun tzu's the painter and the local high school to get to unpaid that hasn't isn't that basically what we have here i know i what we have here is a question of whether or not local eighteen is an intended third party beneficiary of the nine hundred fifty four member and well the sons the intended the homeowner right and if in fact if in fact you can establish that the son it was an intended third party beneficiary out the time the agreement was entered into it was entered into with the intent of benefiting this on then in fact the son could potentially recover under that theory if you can attend a third party beneficiary even though the son has no connection to the mean ok go ahead in any event outside of having to fix a tooth into a wax seal in one nine hundred fifty for miami beach those pagan traditions by and large were all gone part is required if they wanted to enter into a valid written binding agreement they were required to set in the paper and using plain and unambiguous language set out in front of them what obligations that you're trying to say that judge boyko made a decision saying there wasn't a contract here that's my understanding ok i don't know about i don't know about my colleagues and will discuss this in conference obviously but it seems like a contract to me ok it seems much more unreasonable to think that the locals can sue the international unions both in the other locals based on their contract there's nothing in there to show or to say that the locals have the rights that you seek to assert in this particular lawsuit agree to the extent that the nine hundred fifty four memorandum of understanding does not specifically identify local eighteen as a third party beneficiary that is correct ok but that is horton only since we're here on the twelve b six the complaint i mean i think we're looking for a tie in the complaint in your allegations the type that you that you assert here between that old contract written in miami and in this lawsuit and that's one question in the next follow up and you can start with you can address it at the same time if you can't the seems all of a sudden we're resurrecting this old document and in as much as i think these are the arguments have gone on for all the sufficient to make a claim at least a plausible claim under twelve the sixth and or the local eighteen was in fact an intended third party party beneficiary of that contract the complaint alleges that the international unions part of their purpose very purpose of the international unions is in fact enter into these types of agreements that when they said in the complaint that is in the complaint that is that if you would that is that paragraph twenty and at paragraph fifteen and in it in that what is in essence saying the complain making a plausible claim for is that the international unions are obligated under their own and empowered with the ability to enter into these types of binding agreements for the purpose of preventing jurisdictional disputes s of the second  branch of that question whether wine or vinegar age is the same in age as well the fact that it's been sixty three years or so since the agreement was entered into with these sorts of disputes occurring regular not claim for breach of a jurisdictional know what this one is but typically when one union infringes on another's territory it's handled by the n l r b under that this is that that you know rb does handle him with the intention of resolving the not intended to function as a vehicle for resolving the disputes it was intended to function as a prophylactic to prevent the disputes from occurring in the first place but if the part i why i just want to follow on that the supplemental authorities were giv and whether we take judicial notice i guess you could make some technical arguments but they're public judgments we can look at them in the sense that we could look at a precedent right yes and they seem to be resolving exactly these kinds of issues without even a nod to this agreement how did that how did that happen that's not uncommon for the national labor relations board there are five factors that the board will generally utilize or jones are called names that this not binding i mean it doesn't apply the i r b wouldn't look at that contract they would look at it as one of the factors that they would utilize a look at it they did look at it where i looked through these opinions last night and i never saw mentioned at all i was equally frustrated by that as well your honor by and large the board opinions are strictly looking toward the work and in the end of the strictly looking at what will who do award the work to who gets the work that's the issue right now the issue is whether or not the labor is breached the contract they entered into and now but the contract you say determines binding or anything i just wonder what's going on it's the same underlying question judge cook has if this is really a contract that operates to allocate who gets the work when and when forklifts earn volved right you would think that in three cases before the n l r b it would have been argued sufficiently strongly enough that they might have even mentioned it in their opinions but they didn't write us no they did not and that is that is not and you explain that other than saying i know that we don't have to i would do my best to understand what the board does in the section ten k hearing there are five factors that they utilize one of the five factors is collective bargaining agreement so that factor is not controlling and often it is not even addressed more often than not and nine times out of ten are really ninety nine point nine times out of one hundred the board is solely concerned with employer preference all the board does and making an award under section ten k of the act it goes through the motions of looking at for other factors but the primary factor it looks at is who does the employer want doesn't that undermine the argument that this thing from one hundred fifty four is a con is a contract that's intended to control that kind of thing when it when it when it can't by its terms actually control it because when there's a dispute the n l r b decides without respect to it i mean that the next well i'm not understanding the nine hundred fifty four agreement cannot control what the national labor relations board does when the jurisdiction of dispute arises and the board is required to make an award of the work the nine hundred fifty four agreement can however influence the way the laborers approach their tasks and their job of going after certain work to the extent that the what's they going after certain more correct than they both are on the scene of these construction places or recto kinds of people correct but it's ones that like the contract i mean it is different there is one that is different from being on the scene to being available to the work to actively courting it in flagrant disregard of an agreement that has stood the test of six decades and that's what the out allegations are here in this case that over the course of the last two years the labors have made a strong push in the direct contradiction of the nine hundred fifty four agreement in order to capture this work in violation of the promises that they made some sixty years ago i know your time expires but where has that testing occurred in in federal courts or in the agency assigned to this work up some way they test that they've tested it that the one thousand people are agreement and they've task you mean by seeking work by seeking work by actually going out and actually seeking the work to attempt to collectively negotiate into their collective bargaining agreements that work that's in contradiction of the fifth noting the absence of federal court cases but similar to this one yeah it is a rarity i would say your honor that to labor unions sue each other over jurisdictional agreement but it's not unheard of labor that you explain one hundred fifty four to two thousand and twelve as there really hasn't been that much as much by a lation as in the last two years i mean she's i take the road to be asking around this has been around since fifty four why hasn't it ever risen before her they're saying because of a push two years ago granted there are always been there always have been instances where labor is performed work in con hundred fifty four in contradiction of the agreements terms but never were the active and willful violations to the extent that the ohio labor is engaged to the extent that the or how labor is it began this active push around two thousand and twelve it was far surpasses any other good morning may it please the court my name is bill me again oh and i represent all of the laborers organizations in these proceedings to start the it is let's be clear that local eighteen is not one of the parties that signed this document labor sister council of ohio which is an intermediate organization of law you know did not sign this document and none of the affiliates be third party i mean nobody saying it ok you know that but what do you quarrel with a third party beneficiary analysis that with a third party council your honor the third party beneficiary analysis would only go to whether or not local and you cannot extend a third party analysis to parties that there are individuals or entities they're not parties to the agreement certainly those individuals who didn't sign the document never intended that they might be sued in the future by some third party beneficiary sargon as to those is an agency argument well the agency argument is problematic your honor the that is a part of the twelve b six analysis this court is allowed to review documents that are referenced in the complaint one of the documents that are referenced in the complaint is the unit constitution the lie in a constitution makes clear as do all international constitutions that law you know is not an agent of the district or the local unions and the local unions and the district councils are not agents of the internationals it goes on to say that the that the district that you know can never be responsible for the autonomy acts of its local affiliates so when we have a complaint that alleges that makes an allegation that references a document and that document renders the allegation true we we believe that the claim against itself should be dismissed because there was no underlying contract this document the district court judge correctly concluded that there was that this document was not a contract and therefore there was no plausible claim for relief under section three a one we reached this conclusion by doing exactly what federal law requires the district court correctly looked at the delaying which of the document this court long ago in yardman says let's look at the language of the agreement let's then look at the context in which the the agreement arose and clearly judge boyko said at right at the beginning of the document first of all it's not even called an agreement a paid  district court here looked at the memorandum of understanding and applied traditional ohio contract law and i'm not quite sure he should have done that isn't the question whether or not under federal labor policy and twenty nine u s c section one fifty eight the document would be quote signature to the maintenance of labor peace close quote there's all kind of kinds of cases that stand for that and that the sort of freely negotiated agreement that the unions arrived at in  fifty four served their policy so it seems to me that under all four points of the federal labor law on the cases that we're to apply there's no question this memorandum of understanding is a is a contract that binds the two i should say global or international organizations correct no i respectfully just disagree here the reasons why first of all if we look at state law that even in yardman this court has acknowledged that state law is important and district court judges are allowed to rely upon it to fill in gaps and to provide governing principles of contract law as long as it doesn't contradict federal labor policy one of the federal labor poit go seem to have a very narrow view about this in evaluating that document and he looked for the formalities of any contracts that more formal contracts this question that that i've i think this court case is this whether or not this evidence is a meeting of the mind  yeah it doesn't have and then you clause here it doesn't have a lot of the formalities one might find in a different kind of contract but ok if judge boyko is wrong in that analysis what is your new next best argument it's coming your honor i promise take the more it's exactly my question yes here it is ok so so the issue when we talk about agreements that foster labor peace and that that line of cases really begins with retail clerks visit versus line drives good and in that particular case what it what it was at stake was not whether in fact the strakes on one agreement was an agreement but whether because it wasn't a collective bargaining agreement one that was negotiated between in a union an employer doing wages terms and conditions whether it was a contract within the meaning of three or one that court that very first the talks about agreements that foster labor peace didn't even analyzed whether or not the strike settlement agreement was in fact an agreement judge arguing that it's not a contract i am yes you could use it you will move on to your next argument on this some hypothetically we're not deciding it right now  assume that we disagree with you on that ok then if i will your honor i think it's worth noting that when we talk about agreements that foster labor peace that this isn't one of those agreements either one of those when we talk about in the l is assume that the panel disagrees with your disagreement and there's a binding contract notwithstanding what judge boyd how do you win the case if we make that assumption the we win the case because the policy here that's at stake is the one that's articulated in section ten of the national labor relations act and that is that all parties to a jurisdiction dispute including the one two empowered to and sign the work that is an employer deserves a setting to be heard and a final determination of the dispute by the board we argue that regardless of what judge  if even if you disagree with judge bork those determination we argue that this case is it falls under garman preemption and that's just court therefore does not have jurisdiction to hear the case in must to the exclusive confidence of the national labor relations board it is our view that before you get in to all that assume judge boyko was in correct assume the memorandum of understanding is a contract go to the complaint that the engineers local filed and read that they made an allegation that the labor allegation sufficient to survive a motion to dismiss if we find that a contract existed well first of all there's two question there's really the first one is is there is there sufficient allegations to assert that the local eighteen is an intended third party beneficiary as it is our view that under the the standard articulated in each ball that it's that there isn't all eighteen did is say that we are intended third party beneficiaries period they didn't ought reference for this your brother council argues they were the complaint references the constitutions of i don't know if they were constitution some documents that are used by these unions that would all the court could also look to i take it what's your response to the the constitution's for of all to make the analysis or to make the conclusion that by virtue of the constitution you are third party beneficiary that is a legal conclusion and it doesn't deserve the presumption of truth as to the labors district council and the local affiliates i've already have already indicated that their constitutions directly contradict what is alleged at the complaint because the document that is actually referenced in the complaint renders the allegations untrue they don't deserve t document that they are bound by virtue of the constitution ok the the the the he then goes on to say that they're bound by virtue of the constitution because the the international is empowered with drafting jurisdictional agreements or memorandums of understanding between the army because that's all wrong because it's not wrong your honor but what it is it's first of all it's a legal conclusion number one and number two none of that is in the document that he references in the complaint so there is no presumption of truth and there is nothing for the district now lie upon is unsupported by the document that was attached that's correct your honor well the is and at all times mention here in was an unincorporated association commonly known as a labor union headquartered in washington d c with a power issue charters to local unions and district councils which necessarily include the remaining defendants listed here in as an international union law yuna is vested with the authority to decide policies and to enter into agreements that are binding upon its local affiliates now that may be entirely wrong but it seems to me that the time to demonstrate that it's entirely wrong is after discovery when all the documents are in the parties have the opportunity to file a summary judgment  right no your honor actually you know under the standards developed by twelve b six or under twelve b six the court is allowed to review documents that are referenced and can reference in the complaint and that those become a pleadings both articles to an article nine that are referenced in paragraph four of of the operators or locally teens complaint do not refer to any agreements between in union other unions the only reference is agreements between employers in unions it doesn't say anything that did that would suggest work were even remotely support the fact that there vested with the authority to decide policies policies and to enter into jurisdictional agreements that are binding upon its local affiliates and that again i believe is a legal conclusion not worthy of g m term sumption of a contract that's correct me ask you this since i guess at this point of the progression of the argument we're talking about possibility of allegations right what what would you say this document was intended to do ok your honor our view is that it was it was it was simply a wish list it was a statement of what both read like a wish list well your honor it's like a but it looks like you know this is the boundary between our two backyards we've been arguing about it for years the boundary goes from the post to the swimming pool right it doesn't say it in such a good agreement now i'm not going to get into real estate law but such an agreement would be a contract in the nature of everyone knows that means i have property rights on one side of the line you have property rights on the other side of the line you can't go over the line we know what that means even though the only thing said there was this is the line  the they're drawing a line here assume at lease that they're trying a line here what was the effect of that supposed to be in your view in my view the context of the agreement suggests that this was a statement of jurisdictional principles that was do be used in an appropriate setting such as the joint board for the settlement of jurisdictional disputes which is sponsored by the national building trades it was commonplace in this is this is evident in the united states in the supreme court's case and plasters were were if it was jurisdictional an agreement these documents were reviewed and interpreted in those settings and then that's like an arbitration that's could that's right your honor it's called the jerk it was called it is it still exists it is the the joint board for the subtle mix of jurisdictional disputes between member were going to zation operators in light at the time of nine hundred fifty four were member that seems i must say that seems like a plausible argument but it in lin e with what judge murphy was saying i mean that seems like the kind you say this is this is binding in a sense because it guides how our negotiations will play out in this kind of forum but it wasn't intended to extend you got past twelve b six well the reason why it's guided is because and the reason why the promise is if there are any in this document are illusory is because the party that assigns the work isn't the party here it's the employer they're the one that they are the only party that can control who does what work there where these where these unions in these negotiate in these arbitrations that you described they only the only time that you're under the only time they're in those arbitration the employer agrees to be in those arbitrations if you look at our curtain case and out of the seventh circuit you will see that is exactly one of those cases where because the employer did not agree to be bound by this agreement and that's the question that mr fidel didn't ask or answer for you the reason why it's so ineffective is because the employer is not bound by the agreement the reason why the national labor relations board has said it is it is of no consequence is because the employers aren't bound had the parties wished to make a limit the nine hundred fifty four agreement to be a clarification for the joint board of jurisdictional disputes you would think they would have put that in there they would have indicated this just as intended for us to resolve our differences in front of the joint board they did a palin is asking your opinion say what you say it says either they just didn't say no that is here's the line well what did they say looking at the four corners of the agreement and taking a piece by piece and reading each each part in conjunction in conjunction with the next part in conformity with the next part it appears that they knew were aware of a dispute outline specific procedures to edit it just seems to say you know if you're if you're driving the forklift you're in one group and if you're watching where the where the stuff goes w eros on line we're not argue about where that line is now well the intention for which it was drawn was exactly what mr mcgann won't want to acknowledge which is to avoid jurisdictional disputes to avoid having to go to the joint you can say all abot how do we know they certainly did the agreement on it's face doesn't say that the widely right i guess but i mean it just draws the line on what you look where does anything else of what the purpose if one of the factors that the courts look at to determine the a meaning of a written agreement is a purpose and position of the parties at the time the agreement was entered into the purpose and positions of the international unions the exact purpose and position of them was to one their purpose was to effectuate agreements to avoid jurisdictional disputes that's part of what they do as part of what they're charged to do under section ten k of the act and this if you look at the congressional record supporting when that was passed one of the things i think it was senator thomas and taft identified was that they would hope by passing this resolution which would afford the board the authority to determine the disputes it would have the parties the individual labor organizations it would spur them to designed isn't it with the intention of providing a disincentive for the laborers to go after work that had already been divided up by the terms of that agreement that if the laborers and were aware entering into their contract that they were aware of their entering to a binding agreement that would effect prevent them in the future from going forward pursuing that work less they face a breach of contract action in federal court under section three a one it can't it is not designed as an end all to prevent the disputes or to resolve the disputes a design merely to give a disincentive for the labors to engage in activity that would lead to disputes and the operating engineers as well it likewise binds the operating engineers the operators know illusory promises the it is what they have to say they're promising to do there's a bargain for benefit and burden for each