there are three substantive issues the first is whether the defendants have proved as proven as a matter of law that each element of the destruction industry proviso at least second is what are the elements or factors of the non statutory labor exemption in the third is whether the defendant has proven as a matter of law each and every element of a non statutory labor exemption with respect to the construction industry proviso the contested elements of that before the trial court or whether or not the defendant had enter into agreements with construction managers who could be considered employers in the construction industry whether those agreements arose out of a collective bargaining relationship and whether congress back in one nine hundred fifty nine considered those types of agreements to be lawful within the construction industry labor law with contractors and the unions to establish a project labor agreement which sets forth the rules for that particular project the goal of the owner is to make sure that all the unions and contractors are on board and that they'll be no work stoppages if there are any disputes pertaining to the work done to project it all be done resolved by the means set forth in a project labor agreement in return the contractors and unions agree that they will contract but the whole purpose of the project labor agreement is to make sure that the one of the individual unions can rely upon their collective bargain agreement with respect to any topic or subject matter that is covered by a sub contracting which is what we're talking about here today is covered by the p l a and if you look at the variety of p l a's you'll see that they all say that the construction  are title to subcontract the work to any qualify contractor and that contractor does not have to be associated with any particular union a problem we have here is that the carpenters are attempting to require the construction managers on projects governed by l a on projects governed by public been laws and projects that might be governed by neither to agree in advance that certain types of work half has to go to the carpenters and the danger is is that since the carpenters are no longer a party to the f l c i o is that they every time their contract comes up they at attempt to expand their scope of work in infringe upon work that traditionally has been performed by other unions you know the carpenters want to compete with respect to that workers no problem but the downside is that when they have these agreements with construction managers who are basically just sub contracting out the work is that they're not competing for it used to be is that the c m would take bids from multiple unions and contractors are an workers sheet metal workers who never except the best bit that contractor got the and then the contractor would be governed by it's own c b s what the guardians are doing is that they're jumping ahead a step there saying we no longer want that competition between the our workers etc we want you to guarantee that that work has to go to the the work was much more defined back then so when you said you had in our marker everybody knew what the armor did everybody knew what the sheet metal did a carpenter etc what's changed in the construction industry over the years is that now those lines have been lured blurred and now you have different unions all doing the same work so for example when you talk about the curtain wall work that work it's part of the work in this case it's almost always met but yeah well now you have  have sheet metal workers claim that you have lasers claim and you now have the carpenters claiming they're like the most recent person to the party here so if you look at the rules on the construction manager says ok i've got some work of all work that i do is every time they renegotiate an agreement they want to add more to it and as we indicated i don't know i don't know if it was covering our brief in this court but in the motion for our response below there was a situation about arland where they want  negotiate to expand their scope of work under rhode island c b s and the contractors in rhode island said no we're not going to do that you use the verb to expand and that sort of presumes the conclusion  question is if if these if these trades once distinct and separate an identifiable have become merged or ambiguous with everybody doing everything why would you how can you characterize these provisions of the project labor agreement and as expanding the scope of what the the  the carpenters would do other than simply preserving stuff that the copper does union guys because as you seem to concede the carpenters union now includes people who do sheet metal work and so it only does because they've changed the terms of their agreement and they the other trades are doing it the other trades are pretty much sticking with what they've done the carpenters our saying ok we're going to get out of carbon free work in for example you say we're not going to go into electrical work so we have a the carbon does have a electrical local in st louis missouri obviously carpenters never used to do trickle work so this isn't simply they're saying well martin modifying at their they're going out in acquiring work and again the key issue here either is not that they're competing for the work that's funny but given the nature of these agreements the problem is that they're going in t to get the work it's ok for them to poach on the work but not to contract to require that they do it and not sheet metal workers  agreement is between the labor organization and employer and that arises out of collective bargaining relationship these are structured managers do not employ any trade members or union members on the job site that's different than what it was back in one thousand fifty nine agreement as a prelude to this competition that you describe i'm sorry are we talking about the project labor agreements around project labor you get so basically with a project labor agreement that's specific to a particular project and that only pertains to that project and tell us what exactly goes on here so there's a project to build an office building who's doing what but you have the owner rogers who wants to put up a building or a state or federal government was but built right so basically they say ok let's do this by a project labor agreement because there's a lot of benefits to doing it and who's agree to what so they so the project labor agreement is drafted and ultimately all the people who want to work on the project drafting it generally it would be by the construction manager or by the owner with input from anticipated parties to the it would who are the on the parties to this agreement you would have parts of a pure construction manager perhaps your own or you would have the contractors who want to work on the job and you have project labor agreement will say that there can be no contract or there can be no union that can work on this project unless they agreed about be bound by the project labor agreement so they actually have to sign off that's the predicate to everything else you wi yeah and at that point you move to the second stage shall we say have of these proceedings you to choose the project manager chooses from among the eligible competing contractors  they don't agree they can't work that's how it works and so you can have you can have twenty different unions doing work on the project and you can't have each of them saying no we're going to have this fight over this and this and this and so the project labor agreement says no all of those things you signed up by this agreement you agree to be bound by the disagreement or disagreement resolution agreement as set not quite sure the unions all benefit i mean the idea is that is all going to be union work so they are going to go along with that in a construction manager the theory is is that this construction manager simply find trying to find the best  lowest price in that who he's going to give it to but if you're telling of no you have to give it to the carpenters well that phrase a lot of problems and that's why we are objecting to that type of process and it's this there's no secret here i mean even the defendants in her original motion a construction manager to select a particular plumbing contractor if he is and if that plumbing contractor has a c b s a with the brotherhood of plumbers for example and on and on does that mean then that when you select that particular contractor you're going to be you are going to get the brotherhood of plumbers doing that work yes you will you say when the contractor submitted the beds they're affiliated with presumably every contractor is affiliated with the union and none of this work is going to p l is going to be done by wrecked if one specifies that that that everybody working and everybody doing plumbing has to be a member of this of the brotherhood of plumbers and that's going to restrict the number of contractors who can bid is that correct but it doesn't it doesn't doesn't say that what he says is is that the c m for example you can choose any contract or that's qualified ok and that's that's all he has to do so he can consider a contractor that signatory to any union who's qualified to do the work so for example let's take the work here we've got four unions who claim to be qualified the c m could take any of th arbiters and that's the problem there has to contract with the contractor or sub contractor who's whose sheet metal work is done by members of the carpenters you is that correct well are they were the work in question is have a chicken and egg problem here because i don't know whether the whether the e c m is is is picking a union first or is picking a contractor effects contractor the contractor makes the bed based then i don't understand how that can happen if the if the kind of bug remit that you are objecting to is in place because the you think the c m with and have to choose a contractor  contractors don't get it so roofing work for example electrical work in some areas for example the harbors don't get so that's definitely going to go to a nine carpenter cause that's entirely a different point that's internally different point this is a chicken and egg problem if you pick a contractor who does sheet metal work and that contractor has the c b s with the sheet metal workers then i can't understand how that can happen if the kind of agree the the clause that you're talking about is in place they would have to choose a contractor who who who law a contractor cannot employ union members unless he's signatory to the court that particular union a lot so maybe the the choice goes to a contractor do under that circumstance well sumi in that case they have a contractual right they'll claim to do the work so that we employer or the contractor who's done that has created a big problem for himself because he's entered into an agreement with two different unions which may require him to give the same work to each of them which sometimes happens and what happens in those cases one union does the work and the employer has to pay the other you some extent for the time they didn't get that's  contractor it's signed with a more than one union contractor runs the risk that he may be obligated himself to give a particular type of work to two unions which is going to cost a lot of money your description of the evolution of the disputes and the carpenters withdrew from the f o c iow and therefore they are not if they had not withdrawn this is perhaps not a matter of consequence in this case if they had not withdrawn what would this case of never been among members who are a part of the a f l cio and this is pretty widespread now around the country the continuing warfare between the carpenters and others is not right yes or and so this is not unique mean maybe unique to the second circuit at this point or least the first big case on this but this is coming up all over the country yes  arbitration is that it taken place in connecticut over the scope of work for building panels and every single one of those the decision came down that the carpenters more properly claim the work to were entitled to do the work and could go forward on a specific project and do the work what we're talking about here in this case is every single agreement that is the subject of this litigation it is a product of a valid exercise of lawful collective bargaining established and you go down the list there are seven collective bargaining agreements that are in place between the carpenters union and general contractors in this case and the record demonstrates as the district court found as a matter of law each of these sub contracting said a lot in this case in the newspapers and let's just focus ok so we can talk about ok so the answer to that question is no the p l a does not supersede a collective bargaining agreement in fact the two specific peelings that were discussed at the district court level looked at the language of the p l o a and in both instances the inference was that that well in one of them the collective  the work on that case was done by excuse me for a moment it was not done by the carpenters i contend it was i'm sorry was done by the glazers and the iron workers the second pilate issue in this case was three sixty state street turn it was a general contractor the work done on that case was done by the glazers and the iron workers the third peeling issue in this case was the big bay state medical center case and that's when they talk about this m o use this memorandum of understanding which they say was inconsistent with the project labor agreement that was in place in case the project labor agreement in that case said that the general contractor barry was required to select any qualified conch correct under the agreement barry at that time was a signatory to the  carpenters union in the carpenters union there was and that was there's no dispute at any point in this case that that collective bargaining arrangement between barry and the carpenters union was anything but a legitimate collective bargaining process and it's  with regard to that p l a that no one else could have been considered on the pealing it won't in that instance and that's what someone says that's a local to ten says that if it is within the construct of the proviso and it is i in in a particular if if the general contractor is signatory to the governors and it's a valid collective bargaining process and there is work claimed by the carpenters then the carpenters have the right to enforce the sub contract in clause what happened in effect on barry actually was barry selected tower glass as the subcontractor for the sixty or panel tower blaster signatory to the carpenters signatory to the workers and signatory to  the glaciers are made in sheet metal workers in the glaciers they in turn subs sub contracted a smaller subset of that work down to m r s m r s at that time had abrogate had formerly been a member of the carpenters union but by that point because they had been involved in some litigation with the sheet metal workers union had abrogated their agreement with the carpenters and so they were strictly a sheet metal worker shop when it came time for them to do the work they still got the work but the requirement was that they ended up doing the work with a composite crew so you actually had carpenters and sheet metal workers doing that specific work for m r s at the tower level you had a composite crew of the three doing the work and this was all unfortunate of a valid sub contracting clause a provision that was in a valid collective bargaining agreement getting back to one of the questions that your honour's had had asked earlier about the scope of the technology and why you have overlapping competing jurisdictions if you think about the way that building are constructed in the old days you would start with the steel you start from the inside and work your way out well now with advances in technology you have a building panel everything comes prefab in premed and you're literally scope of work that they do what has happened here is the building technology has advanced to the point where you have overlap between the units but that doesn't mean that the arrangement that's in place is in violation of the existing labor laws or the construction industry or the non statutory labor exemption i also want to reference one of the arguments that has been made with regard this is not a case where the general contractors or construction manager in this case were not employers within the construction industry and this is and therefore calls outside of the privilege and there were two specific cases that talked about this there was the georgia power case in the eleventh circuit and then all of these specialties and both of these were cited by the district court and they were cited in our papers that that there is no job site or that a construction manager is an employer within the construction industry this requirement that has been read into that rule  that there needs to be a specific employee of the construction manager in order for it to be a valid collective bargaining process and then they even take it one step further and they say that not only do they need to be specific employee they need to be specific employee on the specific job now i don't think that's an accurate statement of what the law is but if you look at the facts in this case every single job in this case that involved the carpenter doing the contested work was done by a construction manager that directly employed carpenters on that specific job so even this this expansion of the law which doesn't exist certainly doesn't exist in the context of this case with regard to the specific facts and that's ultimately the problem here none of the specific there are seven jobs that they had articulated into their complaint and they identified as were the substance of what they said made out there and to trust face one of those jobs never got done that was the brian university job by bomb brothers the next job was the new london schools job the general contractor was fosco that work went to nonunion labor the next that we talk about i mentioned before was a st francis hospital job i turned a construction that work was done by the glazers in the iron workers not my the the sub contractor new agreement has to deal with has to can has to do with terms that are within the scope of of traditionally mandatory subjects of collective bargaining and the carpenters not preserve it they are they're using these subcontract you remains to to get work that they that other people are doing and that you can compete to do it and you may very well get all those jobs but you can't do it by decent contracting agreement because expanding the scope of work is not preserving the scope of work two responses to that one this is an expansion of the scope of work as i mentioned the precursor to this case was a series of jurisdictional arbitrations over the scope of work and those were done through the arbitration process as to whether or not particular panel work was something that was properly within the jurisdiction we look back to to what the situation was in one nine hundred fifty nine and for what in order to find out what dome you know what what  the work is that what work is traditionally done in the various crafts well i submit one if you go back to what the existence was in one nine hundred fifty nine trade unions were allowed to negotiate collective bargaining agreements with employers and it within the scope of that collective bargaining agreement they could lay out the work that they claimed they couldn't force the sub contract in clause to make sure that that contractor if they were going to farm out the work to somebody they still made sure that that work was done by carpenter labor or the union labor that was particularly relevant to to whoever was signed with that employer but that the scope of the work here and the concept of plum and is not claimed by the carpenters that has been a fallacy and a wrong claim that in this case and it is not in any of the collective bargaining agreements we're talking about panel work which is a different scope of work is the exterior building but the one we're talking about here and what they claim we're talking about panels and panels where they used to be built where you would have steel and then you would have to attach you know a sheet metal worker then attach the attachments in the glazers and put the glass in that was how the buildings used to be done the building technology has changed and so the buildings are no longer constructed that way the exterior buildings are all done and frankly one of the plaintiffs in this case m r s has its own shop where they make their own panels and they make their own panels using sheet metal workers and i had work as part of their shop so their union members glasson what's it like now glass is a book class is part of it too and that's the problem that's where you have computing jurisdictions is that you can't just say that just because the name of the union or what the material is that somehow falls within the scope and there's of a particular jurisdiction if you look at both you go back to the summary judgment record and our summary judgment brief steve  technology and why there is this come competition and cross claims by these various trades but that doesn't mean that it's improper doesn't mean that it's an expansion it wouldn't really work if the carpenters insisted in on some contracting agreements that gave contractors the sluice of right on a particular project to lay carpet that that would be an expansion of the work and that expansion of the work could not be achieved or in forced i don't know of contracting i don't know that you can say that's an expansion of the work i mean the question is was a part of a lawful collective bargaining process well since since since the since the  scope of traditional mandatory subject to bargain includes preserving and i assume that there's an opposite to that and that is expensive so if the carpenters decided that they want to lay the carpet you would agree that they would not be preserving i don't know that i necessarily agree that that's an expansion of the work and well it would be a pre print and preserving of the work we did and that's all that matters well no it would be perceived to be preserving the work otherwise you're asians with the carpenters and the carpenter say you know what we're going to do electrical wire we're going to i mean that's part of a process and they could and the general contractor is absolutely able to say no we're not going to do that we're not going to put that in the collective bargaining agreement and you're obviously regrease that that you can you can bid for you can negotiate for you can you can do everything with respect to bill and the question is whether you can you can have some contracting you agree me that that reserve this to your you but i don't know that this is an extension first of all this is not and there's nothing in this record to say that that this particular work is an expansion of the historical work that the carpenters done and the key collective bargaining process and there's nothing in the record here to suggest that any of the agreements that they say are in place here was in violation of of the collective bargaining process and even if it does create a small monopoly within that particular area of the claimed work sunland and local to ten say that that is the intersection that you get between labor law policy and in a trust policy and that you always have to come down the side of labor law policy if it valid collective bargaining agreement and there's nothing in this record to suggest that there is anything other than valid collective bargaining agreement way every dispute involving those unions would have to be resolved by the individual collective bargaining agreement of that particular union and not the dispute resolution process of appeal way and that would eliminate the whole purpose behind  it was simply destroy it with respect to work preservation the defendant has never claimed that's the purpose for a sub contract agreements was work preservation in fact the defendant has pacifically sa each craft my correct yes or there's no question that if there's a body of law that says the carpenters have historically performed this work then they can claim a valid work preservation plain here but work preservation is an affirmative defense which they did not raise and secondly they specifically said that they weren't claiming it work preservation so you can't very well claim that hey we've done all this work emerge trying to save it but then say but it's not work preservation yet with the they are certain without doing it in it if you claim the exemption one of the obviously one of the requirements of the exemption that is that it regulate to a mandatory subject of collective bargaining in some contracting that's done to preserve work can be a mandatory subject  collective bargaining but they've never clean death in this particular case that that's the but the subject that's the mandatory subject of collective bargaining they've never identified any mandatory of subject any mandatory subject of collective bargaining the closest we got to that will you your position is it's easy as pie the have never identified one of those subject matters therefore they can a compliant with the non statutory labor exemption so it's really very simple we don't have to read