reporting i'm sorry the labor management relations act section three a one i will not the labor or the points of procedural history because this court has asked us to address a particular question but i would like to say that will we are requesting the court to do was to remain the case is the district court and that that the district court should order architrave in this case under steelworkers trilogy in a long line of point or any other question that we'll let you dress that question can't believe that the question that was asked by the court was whether after the decision in circuit city in two thousand and one which decision basically sa employment contracts other than those for transportation workers were considered to be within the scope of the federal arbitration act as a result of that decision there's been some we have taken a position in this case that the that the federal arbitration act as well as section three zero one applies to this case by circuit city did not involve the collective bargaining agreement so that question continues to be problem is a bit different here and i don't believe that we are in a position to have to rely on the f a a jurisdiction although under circuit city it seems to apply to collective bargaining agreements in a circus it was the two thousand and one decision it by saying sometimes in a give and take of labor relations you have these little disputes as a matter of fact the union said something to the employer the employer's human resources person or another individual that they were which one is right which of these two positions is right is right is a matter of law i understand and let me then offer back under the circuit decision is in the second and third circuits that's coca cola and then i forget the exact name of the other case at least cited in a brief i can find it if you wish but those circuits addressed a very similar collective bargaining agreement with very similar language and said that because of the presumption of arbitrary belittling under be subject to arbitration and that is because those courts in the second and third circuit could not say with positive assurance and that is the standard under steelworkers that the interpretation of the agreement did not lead to the the district court the second order of may can't two thousand and four different is that that order was based on a later motion to compel arbitration where a new bargain that was made to the court that  separate section from arbitration it's argued that you can invoke arbitration without going through the grievance procedure that we felt brought us within the scope of the decisions in these in the second and third circuit and outside or at least we could so let me ask you yes the district court is correct we have no jurisdiction that is correct and in spite of that the district courts state this whole thing in the district court did it no  and there is a parallel proceeding going on i take it that is getting some of these issues reaches resolved actually when you say parallel proceeding involving the same issues that did not involve the same issues it involved what was called an interest arbitration about contract formation ok so there is no there is no partial mootness or anything about that not what what what the what the arbitrator decided there was that certain provisions should be adopted as part of the bargaining agreement as part of an interest arbitration for contract permit formation ok but what i'd like to address first is the jurisdictional issue if you don't mind first of all section one of the a excludes contracts of transportation workers and the union in its answer if you would look at excerpts of the record to read that's our first amended complaint page three specifically of paragraphs two and seven seven have alleged that the union that it employed transportation workers and that the union represented the transportation workers under the collective bargaining agreement and the union specifically admitted that and it fancier which is that excerpts of the record page fifty and if you look at the collective bargaining agreement itself i'm sorry that the union admitted it supplemental excerpts of the record page one twenty three if you look at the collective bargaining agreement itself excerpts of the record fifty there are seven classifications of drivers under this collective bargaining agreement so under section one of the f a a there's a specific exclusion for transportation workers engaged in interstate commerce seven ups transportation workers have to be engaged in interstate commerce in order for there to be three zero one jurisdiction so which which is the union remove this case to federal court under three zero one seven up must be involved in interstate commerce so there is clear exclusion from the a under section one now in addition this court asked whether or not lincoln mills essentially has been overruled by circuit city stores and the answer to that is no according to all the circuits that have addressed the issue since circuit city was decided and we specifically cited the case of hope electric out of the eight circuit that specifically said circuit city does not  involve a labor dispute and that it had not overruled lincoln mills we also cited the fist circuit's decision in goodrich corporation which said nevertheless most courts before and after circuit city had hear to the traditional view which is that section three zero one applies and not the f a a and we also cited the second circuit's decision both coca cola and there are more recent decision wester broke corporation authority in addition to lincoln mills the same day as lincoln mills the u s supreme court decided goodall stanford versus united textile workers three fifty three us five fifty which specifically the the court said and if you look at a later supreme court case united paper workers international versus misc zero four eighty four us twenty nine forty one at no nine the court specifically says the f a a for guidance if the f a a were directly applicable to labor agreements then they would need to look at it for guidance so without section sixteen of the f a a there's no appellate jurisdiction here and so there is no jurisdiction for two reasons one is because this is a case involving a collective bargaining agreement governed by three zero one and number two is because it's a case involving transportation workers the agreement the collective bargaining agreement of seven up involves transportation workers and on the on the actual substantive issue we believe that the court's ruling in standards and the evidence that these transportation workers limited eight sixteen s thirteen sixty four thirteen seventy one a district court of minnesota that says that the actual drivers themselves a truck drivers do not have to cross interstate lines in order to be involved in interstate commerce so essentially there doesn't have to be proof that the seven of drivers cross interstate lines and i know that's not in the record actually they do cross interstate lines but it's not in the record but seven up is certainly engaged in interstate commerce within the meaning of three zero one and within the meaning of section one of the f a a but for this record you rely on the unions assertion that you are correct there their answer and i take it that that's not challenge by you at any place in the record no that's correct that's correct what we did not seek to remain and we agreed that there was real one jurisdiction now on on the issue of the substantive issue that's i do want to note that they rely heavily on the second circuit case and focus cola the following coca cola the second circuit decided a case that was very similar to ours and similar just to a standard concrete and versus united transportation union three o five app second eighty six eighty two that's the second circuit two thousand and two case it said the same thing a standard concrete which was where you have a union or employee initiated grievance procedure where you have sequence will steps that you have to go through each of the steps in order to get to arbitration that basically the employer must go to court the employer can't go through the grievance procedure and if you look at each of the steps of our collective bargaining agreement grievance procedure they specifically note that they can only be initiated by the union or by the  board for grievances not been settled according to the provisions section one thousand nine hundred three and may be submitted to arbitration upon written request of either party but that is only if it has gone through all the steps of the grievance procedure so we believe that that standard concrete is directly on point its recent decision of this court and we believe that it's directly controlling unless you have questions i will submit the case  you thank you ana great but very brief time here but i'd like to respond to the fact that there was no record evidence of whether or not the they worked this for seven hours are engaged in interstate commerce and in our brief we point out that there applies because it's a second or an independent basis of jurisdiction we have the real one jurisdiction and the reason for the appeal the reason to believe that we believe the appeal is proper is because it was an appeal of a correct collateral order at least and there was no time limit the court actually didn't three this is a motion for reconsideration and she did he she would stay indicating that we did have a chance under certain interpretations of prevailing despite standard concrete