organizational campaign at casino palm a in two thousand and thirteen and in connection with that filed nine and now ten unfair labor practice charges three of those were consolidated for hearing in the administrative proceeding below and those three primarily concerned distribution outside the entrance of the casino but the order that was that ultimately was produced from that hearing directed promise to cease and desist from maintaining a role that prohibit prohibits employees from distributing literature in guest areas out i'm sorry inside the casino which the board admits include sensitive areas areas such as restrooms and restaurants today present two reasons why the board orders should be vacated in whole or in part first because the n r a does not provide jurisdiction over indian indian tribes and second because the board unreasonably extended basic employee to employee solicitation rules to the patron context and like to start with a jurisdiction issue as we explained in our rule twenty eight a letter they say this kootenai college case explain that the first step in resolving a case of statutory interpretation is to simply look at the language of the statute and in that case judge kozinski wrote that whether a tribe falls within the scope of the false claims act depends on the meaning of the term person within the statute he then appl statutory the word person isn't the relevant word in the statute before us so i don't see why that case has any role in store no i believe it is your honor if you will look at the definition of the term person  starting with section one fifty two to an employer under the act includes any person and under section one for two to one the term person is defined only to include individuals and business entities such as partnerships associations and corporations to the agency this is a statutory interpretation argument my understanding is that the argument that you made to the agency was quite a different argument was based on the x exceptions to who was not an employer and the fact that the agency had previously read those exceptions essentially read in other entities to those exceptions including for awhile tribes but did you ever argue the person or him we did not your honor but we that we submitted the r later but isn't it simply not given the fact that we are reviewing an agency decision with regard to a statutory interpretation if you didn't make the argument aren't we precluded from reaching it i don't believe so your dictional arguments before the board and this one correct but then my understanding of the ninth circuit standard asked a waiver is that it's not a waiver problem that's what i'm saying is that exhaustion problem ok but even under on that aspect as well further arguments i don't think would have made one lick of difference as to the board's assertion over assertion of jurisdiction over indian tribes but moving back to the  applicable and as we explained in our brief the false claims act is actually far more inclusive than the n r a because sections wanted to sue in two and three exclude a whole host of workers from the act of whether jurisdiction was plainly lacking and the tribe there only noted the governmental exceptions where we have argued a whole host of exceptions there right and better excluded from the act i mean you're right that it's in a slightly different posture and i guess it i mean i've your your position on this issue i'm not trying to denigrate it at all i think it's i mean obviously other judges and other circuits of thought you're right but it seems to me we're maybe not the right  of judges to be you know making this argument to maybe you have to request from book review or supreme court review i don't know i don't i don't see how we get around to check the de case frankly well i do have some solutions is how you can get around  and i just want to back up a bit about part elaine it starts with it's based on the united states versus ferris case and that that case goes on to do a survey of the law saying there seems to been misread by the board in court elaine it says it allows proof of congressional intent by legislative history or some other means so some other means could mean a whole host of things and to the later passing of the indian gaming regulatory r right i'm getting there they said it is a common sense argument in agra we know that congress was very much focused on tribes acting as an employer in this you know contests context and it's a highly regulated industry i mean the answer to this any exclusion of coverage of federal generally applicable federal statutes not explicitly but it does a lot like i said it does create this process where the tribes and states that will be a state that's right but then it is approved by the not directly to that point i would actually like to turn to the substantive issue in this case for a moment to explain how the board is a fringing infringing on core tribal sovereignty the compact in this case includes a tribal labor relations ordinance that was approved by the state and negotiated by this union and approved by the department of interior and it interfet prohibits interference with patronage of the casino and also perhaps or prohibits organizing activities in areas open to the public in order to protect the business which funds essential government services and this rule actually conforms with our brief explaining that the board law has said that the purpose of the speech depends on the audience for example organizing is employees striking is aimed at customers so our position consistent with the public a v a sion and beth israel is that they should not be allowed to target the customer when the purpose of their speech between employees they said it can't be disruptive can business structure then if you if it were just dropped and that would be a different issue but there's nothing right now arguing that my understanding also that your argument is that the there was a it was improper to preclude the leafleting of customers i think entrance to the casino were not inside when that was outside because the order isn't allows solicitation inside distribution and he's an insider you're also contesting in a supply ship outside yes to the do the patron context because it's in violation of the tribal of the casino and it also prohibits strike related picketing and for him it's soliciting in public areas so yes you know sort of but that's so so interference with the patrons who are trying to explains the groups of employees were strategically placed at three i think three different points around the entrance so that everyone passing by could be handed over that's not interference so there was  case i think you referenced where people were prohibited from leaving for a couple of minutes and i could understand that argument but just walking by someone who's handing you something that's how is that interfere well these are people looking to come inside the facility and enjoy themselves and have a good time and then here's this i mean we don't know are they going to talk to them i think going to try and how long are they going to try and engage them are they going to bother them i mean these are these are questions we don't know and we have this ordinance that your argument was quite excellent that the briefest disturbing i'm sorry here that you are but thank you morning heather beard for the and i want to be and again i'm going to really look to make sure twelve minutes intervenor union gets three minutes of my time so can you start by responding to the person argument sure i have not focused on this let's just put aside an exhaustion issues or just curious your reaction to what you are correct well we would agree the board's position you would agree with what you said just watch for earlier in addition to the exhaustion or lack of the exhaustion argument the term that has always been at issue here in trying to say it's our position is that the decision of this court in sealed kootenai is a political to the term indian and person in the context of the statute that they were taking a look at which is the f c a not the national labor relations act and not the national employer is what is at issue we do not believe that the sailors who deny decision is relevant to this case and i also believe in the twenty eight day response that union intervener had has submitted the term person isn't universally construed actually by this court have that statutory situation and that we don't have a statute of limitations for which the casino could possibly appeal from that we thought it was not clear that collateral estoppel was something that would preclude the issue being raised ok go ahead ok so in terms of the the jurisdictional issue i'm a i'm happy to answer any questions that this court may specifically have but in this circuit given the holdings that we've had on chappie day with regard to general public ability when we move them into the chordal and test we believe that that test has not only been applied and has been applied and reconciled both interests here which we agree there are both interests of indian and interests of labor and what the board did and what the board has done is accommodate is the circuit has taught both of those interests in not a sort of cavalier way but in a way that considers both of those interests and particularly given the little river decision in the six circuit and sandman well in the d c circuit we believe that the board reasonably found under its own statute as well as considering the three factors in court to lend that here taking jurisdiction asserting jurisdiction  over a indian casino that otherwise operates in interstate commerce that is a business an enterprise that has primarily non indians who are working there as as well advertising to non indians in going out into interstate commerce that the  under that a compact and under the compact prior to the board ever serving jurisdiction in two thousand and four over indian casinos there was an interest in protecting employees in some way shape or form in working for casinos that were on reservations and  has given that it is a federal statute and indeed taking a look at all of the cases cited by casino palm there is not one case cited that there that involves a conflict between the federal a federal law and a law a tribal law or assertion of power sovereignty where there hasn't been an alignment with the tribe the federal government perhaps against the state or in a context that isn't sovereign immunity from a private lawsuit and  immunity from lawsuit by a state what we're looking at here is when you've got the federal government as the sovereign the national labor relations act is a creature of congress once it has asserted jurisdiction we're going to see what may have been entered into for very good reason only or that cannot affect the the jurisdiction of the l r in fact one thing i'd also like to point out about that one of the allegations in this case was that there had been a violation of section eighty three of the national labor relations act that eventually the board found subset agreed your honor and what we think is that even in light of day mails that what it was not addressed by that case in what did not touch court the land and the wisdom of court to learn is that in assessing that first factor about tribal self governance there is a core and a periphery of what could be tribal self governance that is infringe too much on by a federal statute of general public ability however given the circumstances here which bay mails did not address when you have employees who would have to essentially be waiving any of their rights under the federal rights under the national labor relations act to go work at the casino that given that that wasn't at issue and they mills bay mills would not would not be required this court to change anything about court to land we certainly agree that it and that's what i think or to lend did and the board in sandman well also had one more factor that it takes a look at after applying court aligned to make sure there aren't any policy reasons why it would not be appropriate for the board to apply its jurisdiction and so we think that given that the language was expansive in by a male who wasn't a directly on this point we still think that the test under court a line in the board's decision in sandman well which at least not maybe not in this context but in other counter yes i think indeed even in the same case there was a reference to the fact that it has been upheld recently so it's still good law and we think that you know it has been you know the six  little river said that they were bound by their brethren in the other panel and wanted to go the other way but no there isn't any case law going against us on that point so that is why we believe that the board exercise that exception from employer does not include d c or any of the territories or the tribes originally there was a unitary i think somewhat questionable decision reading something into the statute that isn't there i e the states governments are not manage these governments that aren't mentioned and then why you're when you're reading them out you're only reading one of the categories out well in answering your question i guess what i would say is that at the time at the end a lottery was passed there were also two statutes that were passed about indian specifically and given that indian tribes were not mentioned in there the reasoning behind why such a statue would be one of general public ability is simply because if i'm just asking that question i'm asking any better than the board has been explaining since it decided sandman well and and little river and the decisions that flowed from that so i the board can simply decline to exercise  one we believe it is a final decision both because section ten and ten have says it's filed it's final excuse me but also because it may not be appealable at this stage and the doctrine of latches applies to decisions of they're arguing about is not a factual issue it's a purely legal question the restatement of knowledge isn't it has to be the case that legal purely legal questions  legal issue should we apply issue preclusion at least has to us and if the board wants to do which would sell fine but why ask the us several reasons first there's several ninth circuit cases say if your preclusion does apply as to legal decisions by an administrative agency and access for union staff union organizers not access for employee licenses replied employees ok so so there's no conflict and the decision the statement in the ale g s opinion that the tribally relations ordinance is a state law and therefore it's question a constitutional question we would urge the court to avoid it we think there's a decent arguments as to why the t r o is unique and not preempted and if the court will give me time i can explain them but they have not been fully briefed ok thank you page thirty three section three it says not interference with regular atory for security activities and that's one of the provisions that i was right in here that e r thirty three is the provision in the t r o that talks about not interfering  i'm sorry that was there's also a strike related picketing patrons it is it can certainly be conceived as a bother you have a gaming facility six miles on either side of pacino pama if you have people bothering you while you're trying to have a good time why would they just go to one of the other casinos  it's one of those things that's almost impossible to prove until the damage has occurred human you lose customers you lose market share it's it's almost impossible to prove until the harm is done but i'd also like to talk a little bit more about about the t r o it was an act the board decides to just jump back again and overturn the apple cart i mean there's some some sort of a stop argument here but it's new it's weird i agree you know we don't really know how would how to approach it but it does show that that the action not apply to tribes it's very messy and it doesn't work and this is one of the problems inherent in doing so thank you very much thank you for your arguments the case