next case this morning is rock industrial versus laborers international union two thousand and sixteen decision of the national meets agreements subcommittee and set that decision aside alternatively we are asking this court to deny the laborer's request to enforce that decision procedural history of this case pretty muddled yes and it seems to me that labor's asserted a counterclaim this thing that was also then denominated as a motion to enforce the arbitration agreement and they at the abberation judgment i didn't see any final judgment resolving that counterclaim you know labor had labors has appealed from it if that claim wasn't result if that's still outstanding then there's not a final judgement from which you can appeal because absent a fifty four b certification allowing son to go forward all the claims have to be wrapped up so do you have some light you can shed on exactly what this counter claim is that seems to be lurking well i think your honor that you know it's a national decision and the district court denied their motion to enforce but not in a final judgment the motion to enforce basically she seemed to wrap it up and the summary judgment motion and say they were still issues of material fact there is certainly no separate document entered with that with a judgment on that i'm just not clear it's a bit confusing because it was nominated a motion to enforce that labor's characterizes it as a counter claim and it was initially a counterclaim and it is a bit confusing my understanding was that because the district court at the night that motion to enforce that that was a final order and i understand you're saying there's not a separate border t judges conclusion in the final decision that she issued saying that she finds the april fourteenth twenty sixteen decision by the g r s which is the grievance review subcommittee enforceable so she says she's making a declaration that that decision is a forcible which seems to direct itself and a motion to enforce even though it's not explicit about that and then directs the entry of judgment in favor of the union is that enough well i would i would say that's not enough but but well i guess you're saying is it enough to make up that make it a final order right reading everything up right your honour's i have to to confess i didn't study the procedural the procedural status as well as they should have i i do recall that that comment by the court the district court i was somewhat surprised by the the result that we had a that it went against them and even if that was the final judgment finding that it wasn't forcible then there is no reason for labour's to be here appealing asking as you know to result of cross appeal on the plane and that was just that was all in their favor that was bill that was a surprise to us he and i we looked long and hard at whether they had the ability to do that and ultimately felt that they did have the ability because the court had not directly granted their motion as we understood it to enforce and not again sure that that resolves the jewel dilemma that this court hence as far as the substantive issue which we were before the court on  least we hope to be before the court time appropriately it's fairly straightforward we continue to believe it's fairly straightforward in the test of this court through william charles construction company is fairly straightforward was the grievance  was the decision based exclusively upon a clause that concern jurisdiction or was it based instead on a separate independent clause apart from the work jurisdictional clauses in of course we believe that article one section five upon which the decision was based on article one time which the grievance was based are both exclusively concerning jersey fiction has no life apart from the jurisdiction issue and although it perhaps could have been brought separately as a wrongful termination claim it was not and in this the laborers have come before this court and said the one clause in the contract article twenty three that covers wrongful termination we disclaim reliance on it and we have no rights under it so they they have said to this court they don't proceed under their clause which covers the subject of wrongful termination layoff acknowledged they proceeded under article one they've raised article two which they've never reached before in the lower court which has nothing to do with wrongful termination so the case really has to be decided on article one section five is there is that not separate from the jurisdictional dispute provisions of the country and you say it is not can i ask you a another question about that language so the language that says you know except that i am reading from article six section one when it says except for jurisdictional disputes and those involving general wage rates all disputes and grievances arriving rising out of work performed under this agreement involving the meaning and interpretation of any provision in this agreement that language itself be understood to be giving and giving the arbitrator the decision to decide whether as jurisdiction the jurisdiction to decide whether its stars has research and the ninth circuit has said that there's this huge case where the ninth circuit has said that decision jurisdiction to decide which is true and that in the federal context you know the authority to decide whether one has the authority to act is separate and apart from resolving a question that is indeed outside of the jurisdiction so i understand that way one might say that we can understand this decision to be within the i would take his authority because it had the decision to decide whether there was jurisdiction or not and i'm glad the court raise a question we looked at that from the seventh circuits perspective and then i did not see any it i don't even try to say it without having it be a time trust tongue twister but that would be enforcing the agreement as written if the agreement itself with the language of the aggrievement agreement gave that decision then we would be saying well the agreement by its own terms gave the arbitrator the authority to decide whether there was authority to join your choice and i don't know that that language goes as far as that and in my view i and i also know that the that language first of all of course excludes jurisdictional disputes which we say this is and there's no dispute that there is a jurisdictional dispute labors agree the district court agreed and even the grievance review subcommittee so everybody agreed the question is can you can you parse out from that understood but so the court has to say is this more of a harder case or mere on case where there was a separate sub contracting clause that was breached or is it more of a how to steal case or a william charles case where there was only of work jurisdictional cla involved and clearly in our view it was it's a steal and it's a it's a william charles case the only issue before the court and the only way that sentence had life that work shall continue as originally assigned is in the context of a work dispute at work jurisdictional dispute the court that is to court i think error when it said well look this also talks about blackouts in a talks about strikes and those things wouldn't have to be decided in the jurisdictional realm but those things are covered separately just as wrongful termination is in the contract there are separate clauses that could be brought their claims that could be brought based on  stoppages for strikes for lack outs in for wrongful termination but they did not do that they did not bring their case under article twenty three which is a separate clause and let's face it the grievance review subcommittee it noted that brock raised that issue but it completely ignored it said nothing about whether there was proper cause or more importantly in this case a layoff which is permitted for lack of work or other legitimate reasons it did not go there it's partite commission which the parties did not do but the bottom line is and it's a practical it's a real practical effect for the parties had to have been done had the labors pursued the jurisdiction claim that they raised with the carpenters that was presented by this issue it all would have been done after fifteen days i mean there's an expedited procedure for a reason that any dispute of that sort get dealt with immediately in the parties can move the boundaries of a chair stiction a claim has great practical significance for the employer because of a dispute between it's not just a you know bilateral dispute obviously and false two competing unions who want the same work so that right you know bright lines are kind of important here rather than fuzzy rules about how you can tease out some sort of independent claim that falls under the normal grievance jurisdiction yes it does and and i thought the district court tried to parse that out book but it is only two sentences to that clause two sentences and they both explicitly concerned jurisdiction that during the existence of the agreement there should be no strikes lockouts work stoppages or picketing the arising out of any jurisdictional dispute work will continue as originally assigned pending resolution of the disk you the dispute being the jurisdictional dispute so i agree as in potter in me around is there a separate contractual basis for that claim which were mostly subcontracted claims they mostly arose out of their context in a court said look we're not going to force a contract in claim into tripartite arbitration that's a separate breach there's no separate breach i think i have to address briefly the issue of that the court raised at the outset not the procedural aspect but the claim for enforcement we do alternatively argue to this court that if it finds the case that it nevertheless declined to enforce the decision because it did not draw its essence from the contract and i certainly understand and know that that in essence that's  disfavor that when there is are but your ability courts will find the decision has long as it to its essence from the contract to be enforceable but here we have argued for basically the same reasons that it clearly doesn't even if arbiter bull as interpreted by the district court and as interpreted by the laborers this decision did not draw its essence from the collective bargaining agreement because it completely ignored article twenty three which is the one and only clause that addresses the issue of long term anation or lay off simply ignored it and so there can be no if that did not draw its essence from the collective bargaining agreement in that regard so we would submit that even if the court finds this matter to be it should decline to enforce the decision of the grievance review subcommittee has as interpreted by the district court in the papers and i would at that point illinois in justice and judges janet rosen sting those a decision since we have a muddled record how your honor it is very complex the pleadings are not that easy many times with labor cases this happens i do labor all the time this is the third time in my career i'm on the oral argument circuit for this circuit court for this district court and all three times are labor cases in many times you will have situations where there is a complex factual scenario and in this case we have that except it is relatively simple at its core you have contract issues and you have jurisdiction issues all popping up you have carpenters union you have labor union you have the whole cast of characters and you have brock that's that's sitting out there as the employer let me address the cross claim first because that's the the model on this your honor since you since you went right out of the box on that i thought i now i appreciate that i was going to ask if you didn't know i was i was going to get to it at the very end it because it's the small fry but you you know  as to whether there was work performed by the laborers under the direction of brock on january eighth two thousand and sixteen so that's really the only reason why my motion was dismissed there was an outstanding fact according to her the arbitration clearly decided that it when i and that was not really an issue in the complaint itself on page sixty six through sixty eight there was this there was allegations forcible but that was in your favor that's right you can't be appealing found that what final it what happens here counterpart she never reversed the never ruled really on a counter claim as such she only ruled on the motion my motion to enforce she denied that on the limited question of there was a fact outstanding when i pointed out to her that i filed my motion for summary judgment i pointed out to her in the summary judgment that that fact really is not outstanding the complaint states that as a fact there was no outstanding dispute of that in the arbitration it was well established that work was performed by the labors on january two thousand and sixteen and we were terminated that day at that that point she then ruled in favor of summary judgment on my motion she ruled in my favor but she never specifically reversed the sorry i'm sorry always go go ahead of you or the question right i mean my point is that you want yes well i did want a summary judgment but she didn't say how it was going to be enforced under what conditions are one of the motion was going to file another motion to actually start calculating damages and still start putting them back to work i mean we want a summary judgment and the arbitration awards said they should be back they should be the ed work they were eight so i was going to file but then he then in my esteemed counsel filed the appeal under order thirty seven so i thought the most prudent most conservative most safe thing i still i'm looking at a motion that i was denied to enforce that never has been technically reversed so at that point i was afraid to order thirty seven then with final not only on the motion to vacate but also on the motion to  e so yeah i want a summary judgment your honor but there is no order that says that i i get to enforce the only order that says enforcement was the nine i was just concerned that order thirty seven  the document thirty seven with final at that point i needed to cross claim and that's what i did now if your opinion of the order is that it is in forcible and that that order thirty seven is no longer in effect as to the motion i the in force meant then fine i would just as seek instruction to the district court to enforce down below with more specificity they should be back to work that's what happens on arbitration breaches they should come back to work that's never been done i was going to do that i was going to file the motion but then the motion that would have been mooted out because them it was appealed here and into this court at that point there's no jurisdiction if you feel that this entire case is premature because we don't have a final decision as to enforcement and trying to send it back well it just seems to me either we don't have jurisdiction or you don't have a cross appeal because either there's a final cautious and say so i'm thinking well i'll just cross appeal on and if i don't have to then i don't have to but but if there would have been no appeal made by the by the bravo company i would have gone back to her and asked for clarification aster basically how do we are how are we going to enforce and i think essentially that's where we're going back down below i'm just seeking on my cross appeal to to to allow her to enforce with more speci just that we affirm it just affirm with instructions to to work out the enforcement down below basically reverse that order thirty seven as to me affirm summary judgment and and with instructions to enforce the award exactly right so i think we flush through the whole process claim article now let me go back to the substance if this case is appropriate here either on the merits of mr bro appeal are upon my cross appeal i'd like to at least address a few minutes on the on the main issue you mentioned a bright line what is the bright line in these cases where you have contract issues and you have itself that's just the standard of review that's the thirteenth that's correct that doesn't give us just not no role also the cutter hundred tries to sort out the jurisdiction versus the contract distinction by saying that there is substantial deference given to the arbitration awarded only only if the wrongful terminations is not independent of the underlying jurisdiction claim so long as the as long as the terminations is independent of that jurisdiction claim their substantial deference given so they're trying this the case law clearly sorts that out by asking whether there was a claim independent of the jurisdiction in this case there certainly was the facts are pretty simple and then it dropped hired the laborers to do scaffold war they were working in labor's territor then terminated the laborers on january eighth two thousand and sixteen they terminated brock terminated the labors after working on january eighth they terminated with no cost given no reason given the carpenters did not the carpenters union did not claim on a pre judged basis the jurisdiction it was only a month later in february the record has no indications of  competing jurisdiction claim by the carpenters intil at least a month later in february of two thousand and sixteen at the date of the terminations at the date of the terminations of january eighth that was no jurisdiction claim pending by the carpenters subsequently the carpenters did not perfect any jurisdiction claim that they made that beginning in feb of sixteen year honors they did not go over to the internet or b which has and the carpenters had a fifty fifty arrangement with agreement of all the employers that was the standard practice in this area in the st clair county madison county areas so it was common to see both carpenters and laborers on the same job site doing scaffolding work inside this jurisdiction it was well established well warren that's the way you avoid that's where you have a definite piece you avoided jurisdiction dispute by giving up the pile on a fifty fifty basis and that was what was done for a long time you're describing a chair stiction notice but at that point your honor on january eighth our people were hired and then were fired they were actually terminated by the by brock without any reason given all right and it was only then in february that the carpenters then claimed at no point did the carpenters are the brock are the laborers ever submit to a jurisdiction try part arbitration that process has not been done the only thing that we did do  may arbitration process on a contract breach base the arbitration indicated that article one section five is breached and at that point you have status quo as of january two thousand and sixteen the facts are really quite simple in that regard when when my opposing counsel mention the williams case that piece actually supports in that case the williams matter there was a pretty job claim prior to hire here there was no pretty job claim four hundred percent of the work for the carpenters there was no pre judge claim that was only a post terminations claim by the carpenters your honor that leads in the direction of sorting out the smug when you have both contract issues and jurisdiction issues which one is going to predominate and that's how the case law splits if the jurisdiction claim was the primary dispute then it becomes your restriction if the contract claim existed far like you did here then that becomes primary in the underlying jurisdiction claim is done later status quo an industrial piece would suggest that the work that was in place i mean brock's the one that hired the labors the laborers didn't hire the laborers brought to it and then brock fired the laborers on january eighth far before the carpenters claimed the work in february of two thousand and sixteen at that point it's a contract dispute only status quo industrial peace should maintain contract dispute in the should be status quo in till such time that an underlying try part has been done that's never been done the carpenters hasn't sought it so we can't have a tri part if you don't have tribe part the carpenters have not sort of jurisdiction it was only a month how can i save you a case there are two cases the longshoreman cases in the brief which clearly says that the employer cannot unilaterally created  dispute on his own and that's exactly what went on here that exactly what went on here there was no jurisdiction dispute in till february the employer terminated january eighth without reason given and then they're claiming february as far as the letter is a lot of surplus with business agents they're going to claim whatever they can it's clear that that arbitration with honor future contract basis status quo should be maintained as a arbitration was not a jurisdiction arbitration there was no try part the carpenters were not involved in that they did not seek intervention in that how could that have been a jurisdiction dispute mechanism resolution when the carpenters did not seek intervention in the carpenters were not involved in the arbitration that could have only of been a contract dispute mechanism so thank you for your and thank you for your question time and time to help me at least sort through the model of all these labor cases thank and you have a little bit of rebuttal time i don't really have much to say to be candid other than to clarify the council has i think stated the record by repeatedly seen these workers were  only you find the case to be arbiter of all because then there is a distinction in article twenty three between the standard for evaluating wrongful termination and the standard for evaluating a layoff so i only bring it to the court's attention not because i do think it's relevant i don't i think counsel's comments highlight the fact that this was a jurisdictional dispute from from the get go that it is all about who should get the work and the carpenters as this court noted did provide the work which is why they didn't challenge this further i still don't know why the labors didn't and had they done so in fifteen days this case would have been on unfortunately here today there are no furthe