subsidiary entity employing up as members as airline pilots part of that agreement in exchange for bargain the concessions from up to handle letter of agreement that contained a school clause which is common in the airline industry at that time d h l was a small carrier and the pilots agreed that it was in their interest to take present concessions exchange for a commitment to be able to grow with the airline and again this is typical of right by filing a grievance d h l responded by filing a lawsuit against alba arguing among other things that the dispute was within the exclusive jurisdiction of the national mediation board under the railway labor a sixty two thousand railway labor act covered employees you also had had at that point seventeen members who worked for a narrowing called ross aviation and that had stopped being a comm or because all it did by this time was transport spent nuclear fuel for the federal government so over the years some ceased to be covered by the railway labor act who is now technically an employer the national labor relations act well ok so you have you have two issues you have the seventeen employees right and then you have these acquisitions that went on that arguably transformed d h l from what it initially was when it started until where it was when the dispute occurred right ari and i want to invest in the present day standpoint right where it is would you concede that d h l is an employer under the national labor relations act well you know i think it's hard to now why does that fact not give no r v jurisdiction over the controversy because obviously if this is a picture our l a act and they don't have you know they don't  dispute this perspective because sensually a labor dispute between the railroads and certain of their employees the way the labor board analyzes this dispute it's a dispute between jurisdiction in this case i don't think he you don't think they're making a little more nuanced argument in terms of that it's not just that they're also arguing that by virtue of where you know after the acquisitions the knowledge that that that transformed d h l no i don't think that i think everyone agrees that the alpa had not had those seventeen employees it would not be a labor organization as defined by the national labor relations act and therefore it would not come within the jurisdiction of the national labor relations board i invite you to ask opposing counsel that question they will concede that the only reason the labor board which in airline industry but it's also unique to the fact that in all of the cases the using to discuss issues like fairly claimable they're looking at specific locals with geographic jurisdiction but of course in the world you have national jurisdiction the pilots fly for carriers throughout the states and in fact around the world structured in a completely different way and as you may be aware of all act makes it extremely hard says for example you know you're not going to get all the work you're asking for because it's not practical and we don't need agreement requiring the n h l to do it that is the historically accepted procedure for resolving disputes between airlines and that airlines employ and i can't get past the fact that in this case what we have is a dispute between an airline and his employees who work for the airline and as looking again at the board and d h l a dispute between a traditional union and and a large employer if you read the court's decision and this is consistent with the way the board looks at these kinds of cases where the board says there is a primary dispute between and a b x between traditional labor organization alpa and a railway labor act carrier and that primary dispute relations act here and the choice which has to be made is do we say that so long as one of sixty two thousand members totally unrelated obviously to the facts of this dispute so long as one of those members organization violated those provisions by attempting to enforce an agreement that would require d h l holdings a neutral secondary entity to cease doing business with a b s a primary entity with which alba had a labor dispute the borders and title enforcement because alcoa plainly sought to force d h l holdings to sever its dealings with a v x whose employees by the way are represented by another union the teamsters for reasons that cannot be justified by legitimate by the legitimate effort to preserve work for its members seventeen he said yeah it's just seventeen it's funny i said but what now but but he said that you would concede that that's the whole basis for that what you're asserting jurisdiction but then i said well what about in the marine engineers case if there are no n r a covered employees in the union then they are outside the scope of the secondary conduct prohibitions for fortunately for me i have both of those elements i have a labor organization within the meaning of the act by virtue of the your i would argue that it's not an irrelevant fact that you look at the entire composition of the labor organization to see if they are labor when i didn't exactly have a bearing on the dispute between alcoa and a b x which is the type of dispute covered by the real rate labor act and why should in this case the seventeen ross employees make a difference which in another case that did not involve late labor organization issue you're saying that what some people might call an irrelevancy should have this significant dispute on the character significant impact on the character that it does have a significant impact on the character of the this and the current there wasn't the railway labor act created to give certain means of solving disputes between railway labor act employees and railway labor act companies that are relevant seventeen or seventeen thousand wroth employees have nothing to do with doesn't jacksonville terminal tell us to look what's activity that they've undertaken here and if this was just a matter of a dispute entirely between the alpha represented employees of a star and and the the company of a b x there would be no issue here what the method by which the dispute is going to be decided since it's basically in our only dispute shouldn't that channel be selected rather than your channel well your honor i would say also reaching out to person statutory persons that include our l a carriers that as the supreme court said in an steelworkers the congress meant to extend our late carriers quote the same protection which other employers enjoyed and in the teamsters local twenty five case they said since we all roads are not excluded from the x definition of person they are entitled to board protection from the kind of unfair labor practices prescribed by section eight b well i always like to sort of look at people understand why people are saying thanks and i just had the secondary point cut a big big problem here right absolutely i mean because you know to one side it's an advantage to the other side it's a disadvantage and you know for us not looking to that you know i mean we don't you know we're not resolving what the problem is between these two people it's we're just saying where it's got to be and i say alpa doesn't want to be over with the n l r b because they can't with the secondary  feeling that there was a sufficient interest of the board at stake and then the case went to the board of the board does have discretion and i think even the dissenting board member who argued against the assertion of jurisdiction here didn't do so on the basis that it was general order and then another proceeding occurs where they're going to call the compliance proceeding so it's kind of it's almost like splitting up a trial into a liability in a damages phase and that and any modifications that need to be made to or any interpretations of the order that need to be made in light of new circumstances or changed circumstances can be done by the board when it's when it's exercising its discretion to enforce remedy for facts are true but that's something that can be resolved in a subsequent compliance receipt and i would submit that that's the proper venue to address those issues but the fact that these employees were taken out of the unit highlights something that's a bit interesting about the case which is the union is in many ways the master of its own affairs it has the ability to decide whether it is an animal or a covered labor organization or not other unions deal with this by having separate locals where say public sector employees are  that reason this falls squarely within the language of section eighty which would prohibit certain agreements between a labor organization and an employer that cause it to cease doing business with a person which in this case includes a railway carrier violating the annul her but let's go back to this proceeding in the proceeding alpa conceded that it was a labor organization within the meaning of the act there was therefore no cited on page forty and forty one of our brief if i might which has the record reference in it hundred seventy five was fine by the n l r b in the douglas aircraft case specifically to be a labor organisation within the meaning of the act with that kind of checkered history and with  concession there was no need to probe any further so this is not necessarily the pendant on seventeen employees but rather on labor organisation status which as i stated before is indeed necessary so that being the case is that the end of the inquiry that we still have to look at the jacksonville terminal case it's certainly your honor it is an issue in the case and that's not the end of the right it's not the end of the inquiry no i do not believe that is the end of the inquiry but let's take a look at this impact this is a very dramatic secondary boycott one of the magnitude that one rarely if ever sees under this seven hundred fifty teamster represented pilots would be losing their positions if this grievance would have the same problem but alcohol chose to contract with an employer who became and all are a employer if then sought to enforce that agreement it has to be responsible for the reasonable consequences of its actions when it did so it violated section eight before any any before b of the national labor in terms of the fact that your honor raised the the changed circumstances situation the on a large b x in the public interest the prosecution of this case is in the public interest as mr walters stated there could be issues that get raised in compliance but the n l r b does not walk away from a case because of changed circumstances there still must be a recognition that an the pilots fly it be xplained or not pursuant to the agreement the scope agreement and this is going to decide that with all due respect your honor they do not have that right because the agreement itself it certainly can't in terms of the aggrandizement of work which help a has sought in this case that is an unlawful secondary boycott it's not that the n l r b is trying to decide representation all matters for under the railway labor act rather it is the fact that the agreement is being interpreted and used as just to employers had an agreement that was vital to of of the end i trust lost and the aggrieved party came to an arbitrator and said let me get the benefit of my bargain but the answer is you go to the arbitrator that would be determined by the fact that this is our l a union and our commentary and wouldn't that arbitrator also the able to determine the scope of the agreement or the validity of presumably if there were no labor organization under the act at all and the n l r b couldn't determine it presumably that would be between sol and all our rainy season we saw all our l a employers been resolved under the our ally and that the agreement had been upheld ok just hypothetically what rights do you have at that point you think that's the end of the game or do you have some rights under the  employees participate not one but it has to be two or more then the n l r b would have jurisdiction even even if under the our ally the scope of the agreement had been affirmed that's that's correct in terms of the animal or a and i might direct the court's attention to an old supreme court case called kerry versus westinghouse which doesn't deal with our ally the deals with the nuances of representation matters and in that case an arbitrator had already decided a particular issue but the n l r b late in the game came in and the supreme court recognized in kerry that therefore there and there are things with honest reflection it seems to me if we're talking about the scope of an agreement that involves common carriers in this context then the the scope of the agreement has to has to be governed by the our ally don't you agree if it's that's just the question  ordinarily would if we weren't dealing with an agreement to boycott another employer by a statutory labor organization we can't divorce ourselves from those important facts as well and if i can make just one final point to the court even though my time has expired the western pacific case which has been mentioned a couple of times also doesn't involve going to larby it stood for the unremarkable proposition that section three hundred one jurisdiction under the and l r n a is not available for railway employers has nothing to do with this case ninth circuit nine hundred sixty three in that case where the opposite situation we had a dispute between pan am which we all know is that airline and carpenters union representing the group of workers who did work against this union we got an injunction on the railway labor act and one of the ninth circuit saying know we have to look to the substance of the dispute even though pan am is a carrier and these employees are technically employees  act but what we see is that the supreme court has repeatedly focused not on the question of whether a union is technically a one hundred percent pure r l a union or not but rather whether it is  workers simply because council says well how to head to accept a reasonable consequences of its action it decided to become a mixed and our a r l a union well in fact the record indicates that own willingly allowed seventeen members to transition from the pilots to transition from the are late to the n r a because although they were still pilots their employer started to work only for the federal government and therefore no longer a common carrier no longer on the r our reply brief it creates these strange economic advantages and disadvantages incentives far there's no evidence that anyone ever intended again the seventeen ross pilots to have that kind of impact jurisdiction over the dispute and supreme court precedent councils against it but but that dissenting is saying we do have jurisdiction but i don't think we should exercise it which is different than not having jurisdiction under jacksonville right you know i don't actually read it that way i think it's this question of technically they have jurisdiction but i read of the overall dissent is saying it is not proper for the court to attempt to exercise jurisdiction because what is proper is for the board to attempt to look at the spheres of authority of the are away and the analog and i at least read to really be saying we can't and i think it's worth remembering i think you are aware of this that we don't do it's not appropriate to defer to the board's decision to the discretion as to the limits of its authority vi and second guess or evaluate contracts reached between traditional unions and carriers regardless of the collateral impacts of those agreements on neutral and all are a employers and while there's a quibble about the extent to which western pacific is directly relevant i submit that it is there is no case no court case that suggests that the collateral impact of a dispute on the suppliers of food and the people that drive passengers to airports and the other people who are not covered by we are away if united airlines and the unions are united airlines go on strike and united airlines is shut down all kinds of collateral consequences and in fact we know that the union in that case is entitled to engage in secondary picketing and is entitle to go to employers and pick them to put secondary pressure united airlines there is no question that the  the only difference here is ultimately those seventeen ross aviation pilots and we submit that is not the kind of difference that the fundamental legal rights of an entity such as apple with sixty two thousand are lay covered employees