good afternoon your honour's ask rodriguez of the arbor michigan on behalf of plaintiff appellants your honor it's a privilege to be here and to be heard by the court i would like to reserve to minutes of time for a bottle i also i today we filed this class action on behalf of a drivers which by my last research amounts to about one hundred sixty four thousand employees nationwide according to the wall street journal report  among the relief sought your honour's we were looking for the drivers to be me to hold for the millions of instances where the manipulate the software system that they use to interface the drivers and the customers to deprive the drivers of what could be millions of dollars in wages we're now dealing with a situation here where a phone company takes pennies from your phone bill or dollars from your phone bill  this is a situation where over as the company is systematically and secretly stealing money from its employees dollars at a time  but what's worse and i think it's more to the issue in this case is that it tells them that they have to individually arbitrate any challenges to these practices in our view this removes any meaningful remedy for these yes you're right in your what if you do about the fact that the agreement which your clients chose not to opt out of provides that these types of questions should be decided by an arbitrator well your honor the way we see this is that the court in the alternative entertainment has already spoken in the sixth circuit and said that these provisions are on forcible as a violation of the national labor relations act and so in our view that at this point there's nothing to delegate to the arbitrat says that these types of agreements are on forcible because they curtail or i guess was that not a mandatory agreement a mandatory arbitration provision in alternative energy mean yes your honor but as we will get into further in the presentation here i don't think that the opt out really saves this this agreement and the reason i say that and mr heller will talk more about the on assignment case  but my understanding is that the opt out agreement in this particular case says the same effect of being mandatory because it requires employees to essentially have to opt in to protect their rights under already and that's not what the n r a is designed to do it it is the default rule by having this opt out that's put in this agreement that scent of the drivers on their phone and asked to sign electronically i think we're asking them to opt in to the n r a rights which is just not i believe what the law is and i think that requiring them arbitrator can't decide that can't decide what question but the question that you just answered the question whether it matters that there's  arbitrator should do that in the first instance oh yes you're on or you failed to move on to the second point of answering that question which is that we believe that the this particular delegation cla doesn't have does it is not within the scope of this clause it doesn't include employment status which is what the issue before this court and have you appeal that issue i thought the only issue you appealed is the defense of the  b i mean really in your brief you you cite one issue and use you say that this clause violate your honor because in the focus of our brief it's going up the focus is the one issue that's all we decided well that the focus of our brief in our view is the answer intertainment case and i think that that is what what is resolved in favor of plaintiffs and i'm trying to make i guess the argument now with respect to the delegation clause but i do understand that the focus of our brief was the situation with alternate because of your brief you're saying is whether or not the arbitration agreement is an enforceable because of court well your honor and my understanding of the rule and frankly we found the lewis case on the eve of oral argument but what i've been up there for a while longer than that well i understand that but my understanding is that the waiver rule authority i don't think it was well if i may your honor at oral argument we spent half of the oral argument on the n r a issue hoovers counsel was asked whether or not additional briefing was necessary and i have  that they're making their human that we've waived but your honor they had an opportunity they weren't prejudiced by it in any way in this pretty particular case because the first thing we did is we asked the court to give us an opportunity for further briefing hoovers coun said that's not necessary and that's why i think it changes it from the mohammed case in one circuit does the judge try to district judge have to give you opportunity for supplemental briefing i mean if you don't brief a defense originally  so it's discretionary with judge whether he's going to exercise discretion and allow you to absent know well to raise new issues your honor i don't i don't necessarily disagree with that and i can tell you from being at oral are you are to see it's an abuse of discretion well i don't i think also that the the judgment four pages of her agreement or i'm sorry of our opinion addressing well re issue civilian first of all says it's waived because it was not properly raised and then the judge goes on to good afternoon may it please the court joel heller for the national labor relations board as can we get this court held in alternative entertainment that prospect if individual waivers of the section seven right to engage in concerted legal action  unenforceable the presence of this issue is now up in the supreme court is that right yes it is the supreme court heard argument october second in the murphy oil case the presence of an opt out mechanism does not rehabilitate the otherwise unlawful policy for two reasons first and primarily because it has the policy has the same impact on section seven rights and the policy is underlined and regardless of whether it was entered into voluntarily and that is why the supreme court courts and the board have held in various contexts that a policy that interferes with section seven rights violates the n r a even if agreed to voluntarily for example the national licorice case cited and relied upon by this co alternative entertainment would it be that since the issue is up the supreme court argument has already been held would it be prudent for us to hold this in abeyance for their decision i think it would and that in fact is what several other courts have done including the ninth circuit and the fourth circuit have heard argument on the opt out issue but have stayed those cases pending a decision from the supreme court and murphy oil if the court is inclined to address that issue however  judge white you mean the opt out provision in the john muhammad yeah so in the john muhammad case two things about that first of all it predates the board's decision in on assignment where the board addressed the issue of whether an opt out rehabilitates the otherwise on lawful policy and so it is under brand x administrate of law principles it's no longer necessarily binding on the ninth circuit they would be able to address the court addressed the issue a new when the question is deference to the board's decision  assignment so that's part one part two is that this the ninth circuit actually did hear arguments on the opt out issue in september in a case called o'connor v and that is the case i was referring to to judge griffin earlier that is now held in advance pending the murphy provisions are illegal i mean what why if you have a delegation why don't they have to go through that route judge wright the board doesn't take a position on whether  delegation clause applies in this case the the board's position is if the court is going to address the issue it should find that the opt out does not save the what this court found an alternative entertainment to be an unlawful  know that because only some of the employees sign on the same was true in the of the contracts in the case decision and the same also was true in the supreme court's pattern makers decision which involved a a union rule restricting the ability of union members to resign the court said that was an interference with section seven rights and emphasized that its holding in those cases was not limited to rules that compel employees to do something but also when they were entered into voluntarily it's also important to note that this is a prospect of categorical waiver it is employees are forced to make this choice at the outset before they are faced with any particular workplace dispute court's description of section seven in the granite state textile workers case where it says that the vitality of section seven requires that employees be able to make context specific choices as to whether to engage in concerted activity in the words of the court in that case an employee must be free to refrain in november from actions he endorsed in may and just so here an employee must be free to join a concerted activity in november even if she in may decided not to when circumstances were different i mean you said employee and that's one of the issues here is whether they're employees or independent contractors you take no position on that issue as we're all right but if they are independent contractors then of course this defense doesn't apply the alternative entertainment defense right that's corrected this only applies to any employee and ok probably asking the wrong party but it seems like the issue of whether someone is an employee or independent contractors is the sort of question that arbitrator's often decide and the argument here is that it's not suitable for the arbitrator but say ok the arbitration clause still trying but you can arbitrate collectively or is it just to say  it's as if it doesn't exist right so as as was clear in the court's decision in alternative entertainment the problem with these individual arbitrations provisions is now that they provide for arbitration it's that they require employees to act individually in in any form regardless of the form so the i how in the context of this particular agreement whether that would mean the availability of group arbitration or or having it to go into court i'm i'm not sure but but yes the the government of the board's problem with this with these kind of agreements is that is the individual part not the arbitration part so you would leave that to the district it please the court my name is the n a e vangelis and i represent appellee technologies in the subpoena the court should affirm the district court's decision granting goober's motion to compel arbitration pursuant to the voluntary arbitration agreements between plaintiffs and guber in this case that is the same result that twenty other federal courts have reached since last spring in lawsuits between her and drivers who have used the over app including the ninth circuit in mohammad and the eleventh circuit in suarez and the court should reach the same result here for several reasons first plaintiffs waived all of the arguments that we just heard about on assignment and the n r a on appeal they've abandoned every single one of the arguments they relied on below including the challenge to the delegate to the delegation agreement instead the sole issue that they're asking this court to address and decide on appeal is an issue they did not properly raise below and that's whether voluntary class waivers are invalid under the n l r n a and more specifically whether the court should grant chevron deference to the n l r b is vacated decision in on assignment staffing they never mention on assignment staffing below they never mentioned chevron deference below in fact and before this court acknowledges as much that issue was never addressed so even if lewis was mentioned in a notice of supplemental authority which was improper and didn't properly preserve the issue under this court's precedents regarding waiver and the rules that it applies to such preservation issues plaintiffs never even mentioned the on assignment decision about it oral argument what was argued that oral argument waived because it wasn't properly raised in this court in cases such as scottsdale insurance versus flowers how that issues that are raised but but raised improperly in the district court are in fact waved in and so recorded dressed too which doesn't often happen that's correct your honor the district court did address it but there was not any mention of on assignment staffing which is the issue that b has briefed and that plaintiffs are really focused on and before this court there was never any mention of that so that is the primary reason and that's also the reason why there is no need to hold the case in advance pending the supreme court's resolution of the appeals in lewis morris and murphy oil although of course that is a path it's available but we believe it's unnecessary here because of the serious waiver problems and i'll move on to the next issue unless your honour's have questions about what i've just discussed the another problem for plaintiffs here is the delegation cla that they by their own logic they they say that they're bound by the two thousand and fourteen agreement that agreement contains a very expressed delegation provision that delegates threshold questions of arbitrary he such as the enforceability of the class waiver to the arbitrator so again they haven't challenge that on appeal so that's another problem that they face about the the threshold issue of whether they're independent contractors or employees is that subject the arbitrator's decision as opposed to court we believe it should be your honor and that's another problem here because that's the only way you get to the  because they're challenging an arbitration agreement they do have the burden to to prove that their claims are not suitable for arbitrations they have to make some sort of showing in opposition to a motion to compel they made no showing whatsoever to dispute the very clear provision in the licensing agreement that they entered into which states that they're independent contractors so the only evidence we have in this record is that agreement which states they are independent contractors so for that reason a wouldn't even apply but because it's a question of arbitrary realty and a threshold issue we believe that it would be proper for the arbitrator to decide and not a court and that's in fact what several district courts have done in other cases with that we've cited one is the northern district of illinois case and a live audience and the other is the southern district of florida in the law more case they reach that same conclusion  i'm with all of those problems facing them there really is no need to address the question that the n f l or be has just argued and has presented to the court but i can also address that if if your honour's have any any questions but here again the key issue is that this agreement is voluntary so apart from all of the other problems this is not like the agreement in alternative entertainment judge batchelder you made this this point if it was a mandatory agreement in that case and here this is voluntary so the court's decision in alternative entertainment very clearly addressed only mandatory agreements and is the ninth circuit correctly howled in john mohammadi that precludes any violation of the an allen array and for that reason we don't even get beyond the text of of the n f l or a because under section eight there's the only problem for the n r a purposes conduct that restricts interferes with or coerces employees from mandatory agreements so if those agreements are in forcible then of course certainly this these agreements are in force will but we believe they're enforceable in any event and again also under section seven of the an hour a employees if you're dealing with employees have a right to refrain from engaging in collective action so again by agreeing to arbitrate any claims individually an individual can refrain have cited and the ninth circuit and john muhammad he made this point that those cases are distinguishable because of their the individual agreements were a means of effectively eliminating a union altogether so it wasn't an issue of what for or what what process claims would be made or brought in court it was about eliminating a union altogether so those cases are distinguishable and the department of justice also made that argument in its brief before the supreme court because the n l r b has cited those cases and of course the n l r b does not get deference on the interpretation of judicial precedents so i expect th supreme court will and has been presented with those cases and may address that argument but going going back to the waiver here and we believe that it it would also giving deference to the n l r b as decision in on assignment would not accommodate or even consider the goals of the f a a and in fact an other point that's worth making is that the n l r b is argument that merely opting in or opting out of arbitration is effectively opting into the potential of class litigation if that is so burdensome then i don't see how the f l s a with its opt in procedure which ever is well accepted and hasn't ever been challenged by the n l r b how that is and also a similar interference or restriction on an employee's rights to engage in collective litigation of course it isn't so we believe that the same logic of the right isn't that the statutory procedure yes it is your honor just like the f a a is a statute  but the forcing an employee to take the affirmative step of opting in would it is effectively the same as you know requiring an employee to opt out of an arbitration agreement so that's  analogy that i'm that i'm making and again the department of justice has also made that analogy and others as well but i i would like to address any other questions of the court might have but i don't believe it's necessary to get into any of these issues they are complex and complicated and the supreme court is considering the validity of mandatory arbitration agreements and that's precisely why we have waiver rules and  the court in numerous cases this court has held that unless an answer is so clear and beyond dispute and there would be a manifest injustice we don't need to address and indeed we don't address issues that were never raised properly in the court below so for for all of those reasons we would ask that this court like the twenty other federal courts that have consider these arbitration agreements and various challenges to them that this court enforce the parties agreements and in affirm the district court's order thank you thank you for bottle o lawyer quote i don't believe that we need to do supplemental briefing on lewis this is the seventh circuit case dealing with and already it seems that your honor has a pretty good understanding and grasp of the issues and so of course if you allow him to submit a supplemental brief we would like to respond back but i don't think it's necessary it's pretty clear where the law is on that three or four months later four or five months later alternative intertainment came out we didn't bring up on assignment because it we didn't need to necessarily bring up on a site on assignment at that time lewis was that was the case that we could point to in the circuit courts alternative entertainment was a decided yet after our  arbitrator decide the issue of the independent contractor versus employee that the main problem we have is not that the enterprise independent contractor is going to decide that issue it's that the independent contractor  should not it's illegal for the goober to force the employees to pursue that issue individually because if we have that issue be pursued individually it has the same exact effect of prescribing the section seven rights so we can't have goober at every turn get around the n r a by saying this question of fact or this legal question needs to go in front of the arbitrator individually i don't think we have a problem  arbitration as a group the problem is that it's it's individual and it's just not the same case you're saying the threshold issue of whether they're independent contractors or or employees  arbitrator would decide that question but the problem is that it's got to be done individually according to position and that's where we're prescribing section seven from these employees how i mean or all the drivers and the same situation it seems seems to me that usually employment relationships are based upon the control and i guess you're saying that control aspect is the same for every driver well they have their pick their policies and i can go into them they tell you what type of car what type of insurance requirements what how you're going to be able to accept a customer's ride you can't just choose your own customers you got to go through their app those are the types of things that we would argue but we're fine doing that in front of an arbitrator is just we have a problem doing it individually because we don't have the collective action  collectively the arbitrator could determine whether all the drivers are employees or independent contractors you know we would have a problem there well you know because in our section seven rights are curtailed because in fact the n r a encourages arbitration so it's about collective versus individual so to answer my question yes i'm with the arbitrator determining collectively whether all the drivers are employees are independent contract i say yes but to the extent that the all of the workers can so yes all the workers can proceed together but whoever wants all the workers to go separately and that's our problem with this and what is your answer not to the question whether the arbitrator can just employment status but whether the arbitrator can decide the legality of forcing individual arbitration i'm not following the question your honor well it goes to the delegation clause which is you know you don't seem to be addressing in forcible because i think it's developed i think if we if i understand you correctly i think if we apply it that way each of these individual but these  each of these employees will have to go in individually and that still has the same outcome so if mubarak were to agree to let our drivers collectively arbitrate i don't think we'd be here