ok sixteen three seven thirty seven s c l o c vs california nurses association argument not to exceed fifteen minutes per side michael you may proceed for the we respectfully request that this court reversed the judgment of the district court which you roni asli held that it lacks subject matter jurisdiction over the section three zero one action when congress enacted section three zero one it had a dual purpose one it felt at the time this was back in the one nine hundred forty s it felt that unions often escape liability in a breach of contract setting because the n l r b was the only resource and congress didn't like that all other citizens could be sued for breach of contract but unions couldn't the other purpose of section three a one was the hope that by enforcing by encouraging collective bargaining agreements and enforcing them when there is a breach parties are more likely to act in good faith and ideally congress ought they would create harmony in the industry between employers and unions since that time it's become clear that given the very nature of collective bargaining agreements there are disputes which are inevitably both contractual and representational and that representation all in nature and when you have those that are contractual and representational as you say this one of them are understand that you want to shoehorn this under the real one but how can we decide this issue without deciding the issue that's already before in our people or from what they are they are they really intertwined they overlap but they are not intertwined in the overlap is actually something that the supreme court recognized sixty years ago in the kerry vs westinghouse case in fact the supreme court said something that i find really quite dispositive they said even if the contract dispute involves a representational issue and even if you have a remedy before the board federal courts are not stripped of their jurisdiction to enforce arbitration clauses and i think that is very telling because panels of this court just in the last decade have said in fact it goes further thr jurisdiction it actually expresses a federal policy that federal courts should enforce collective bargaining agreements and particularly arbitration clauses now in terms of the overlap here your honor not in not in the operative complaint that issue nothing in our briefing has requested relief consisting of we would like an arbitrator or a court to say the union is not the bargaining representative that is the n l r b is role and that issue has been decided by the n l r b the issue is different we assert that the breach occurred well before the n l r b ever certified the union as the bargaining representative take for example that highlighting that this truly is a breach of contract case the contract states and this is one of the alleged breaches paragraph twenty of the election agreement and it deals with what happens when disputes arise in the context of the election process and it says the parties acknowledge and john or the first panels of this court have repeatedly upheld implied agreements where the course of conduct of the parties even says an agreement to be bound by certain turn in that agreement say is not binding on us and that's why we don't an express contract because it is unsigned with the district contracts become binding and by implication binding your honor in the sense that during the bargaining proceeding leading up to the election the parties invoked this unsigned agreement thirty times twenty seven of those times by the union itself asking affinity to do something or refrain from doing something and citing to actual provisions of the signed agreement so through this agreement provided a framework of what was the implied agreement which is implied through the best case that backs you up on that are the best case for that and apologise that i don't have it at the ready but it is in our reply brief and it is that document number twenty two from the record if the district court's decision denying the union's twelve b six motion where the union raise this issue and said well it has to be signed it's not signed therefore there's no agreement yes the discourse that it is unsigned but they're not trying to enforce the actual unsigned agreement they're saying the framework for your agreement the implied agreement stems from what you agree to that's unsigned but you operated under it for months you invoke the various provisions of those agreements factor in or one of the things attached to the complaint is a letter from the union saying pursuant to section suchandsuch of the agreement we are asking that you begin the process for elections and that is all laid out in the one thing the parties did sign was election agreeing with the board was after this agreement the gel never could agree on the saw it would take proselyte but it would cover different issues your honor the election procedures agreement and the the l or a that are attached to comply deal with disputes that arise between the parties it doesn't deal with this vis specificity of the board overseeing the election these actually deal with the relationship of the parties at various times i think your honor it's unsigned but to say there was no contract at all when the parties operated under it and invoked these provisions repeatedly both sides and it said in the amended complaint twenty seven times the union itself invoked these unsigned agreements to require affinity to take certain actions i mean that's  agreements and did not take a position throughout the entire process that it did that and on the basis of these implied agreements when the election was very close there was a like one hundred four ninety six again it was very close around her but i think here is taking it back to the issue of jurisdiction we're not saying that an arbitrator can or should overrule the n l r b that's not the request here but if the breach occurred if these parties had an agreement that these election procedures will take place in a certain way one of the agreements was if there's a dispute over votes they will submit the disputes to binding arbitration and this was not some drawn out process they had agreed that it would take place within twenty four hours over certain objections or fourteen days  agreed that they would be bound by these election procedures they are i would ask the court to consider the implication of this section three a one was intended to expand federal court jurisdiction not restricted here the union felt given the climate of the n l r b that it might have a better shot in front of the board if it is chewed the contract and proceeded with the board notwithstanding their agreement but in a few months from now or a year from now we can imagine a scenario where an employer well also feel emboldened to say to heck with our contract we think we could do better in front of the board but that's that and typical to the purpose of section three a one section three one meant to enforce these agreements and enforce arbitration clauses not allow parties to pick and choose when they're going to abide but i still don't understand how we can decide that you've presented a contractual issue without completing with the board's decision which is what were the powers and the powers of the arbitrator here the arbitrator it in this is consistent with six circuit precedent us supreme court precedent an arbitrator has very broad powers to fashion a remedy he or she can in this case the parties actually agreed that equitable relief compensatory damages attorney's fees costs are all within the arbitrators power if he or she find that there was a breach of the contract he or she is the one to decide what the proper remedy that flows from that breaches it if a breach is found and i think to say again i think it's important to note that case after case looking at traffic looking at deponent go to pony is actually an interesting one because it followed traffic and the court noted just because the n l r b has initiated proceedings does not mean that it will always foreclose a district court having jurisdiction over all claims between the parties and i think that's telling we are not asking the court we're not asking an arbitrator to make an initial decision of representation that is what the board does but if there were breaches independent of that for which a remedy could be fashioned by an arbitrator that is certainly something we thought in his powers we've touched on the alternative argument raised by the union about the implied contract your honor it is an implied contract and again i would turn the court to dhaka number twenty two it's the last two pages of the district court's opinion all of the case law is cited from the six circuit and others highlighting why an agreement existed here or at least wife in it has played a claim which is we are the twelve the six stage after all the other arguments raised by the union and i think we fully covered those in the which it succeeded so those arguments really don't don't have any merit and so given that i would ask that the court respectfully i would ask the court reverse the judgment of the district court because it does have subject morning your honour's caroline go on behalf of the pelly california nurses association national nurses organizing committee may please the court your honors despite affinities efforts to a few skate the facts and the law in this case are actually fairly simple and i'd like to use my time to quickly clarify both first and foremost based on affinities amended complaint and the board's affinity decision the district court was correct in finding that the employer b has already exercised its jurisdiction over all of the disputes the definity raises and it's section three zero one complaint although affinity makes several generic assertions of a failure to arbitrate undefined disputes it's a mendicant playing actually identifies only three specific disputes first  paragraph thirty two and thirty three affinity pleads that the union failed to arbitrate the election objections and challenges and actively participated in the board's resolution of the changes second in paragraph thirty four affinity pleased that the union failed to arbitrate an unresolved dispute about affinities duty to bargain and third in paragraph thirty six affinity pleads that the union failed to arbitrate an unresolved dispute about post election access affinity that and plainly asked the district court to find that the union breached an alleged implied agreement by family to submit these disputes to  and submitted those and certified the union as a result and it exercised its jurisdiction over the questions of affinities duty to bargain as well as the retaliatory denial of post election access deciding lps over which it ordered extensive relief and the end also already rejected expressly affinities argument that these disputes ought to have been decided by an arbitrator rather than the n l r b as all that went on appeal to the gleason score reel that's right judge gilman affinity has filed a petition for review with the d c circuit and has asked c circuit to reverse that and it will be order in part on the basis that those disputes ought to have been decided in arbitration rather than before the board why are we here well the union agrees with your honor sentiment in that matter really we're here to address their arguments and ensure that the corps hasn't been misled by any efforts to obscure what's really at issue and you say that there is no issue addition to that the district court specifically gave affinity the opportunity to clarify how the issues it raises in its section three zero one completely are distinct from those issues r d decided by the n l r b and the court did so in the context of a subject matter jurisdiction challenge by the union on the basis of primarily representational preemption which would of course require the plaintiffs bearing the burden to show that the issues it raises  section three one complaint are in fact the state but affinity declined the court's offer and instead filed a suit supplemental response with judge pearson in which it declined quote the court's offer to provide any further factual allegation or discernment and quote and based on these facts the district court did not care in finding that the issues affinity raises and in section t seeming that this contract is is a god dr pilot what should the policy of the law be to resolve this kind of conflict between representational preemption doctrine which has been recognized and applied by most other circuits and i think this court's decision in traffic tack really teased out how this court don't want to resolve the tensions between the  extent and i think that makes sense because where the n l r b has already issued a decision it's exercised its expertise which it was vested in it by congress over matters of representation to decide in the first instance that the issue was in fact an issue that requires interpretation of the parties contract problem is where you have this conflict what happens often you in such a conflict is it just the way it is resolving never get to collective bargaining that way i think you're right judge mirror it and of course that would thwart the purpose of the act which is to give workers the right to collective bargaining in this country and also i think that's why congress has carefully structured a process of administrative decision in judicial review right this matter is before the d c circuit it's in abeyance but the d c circuit will ultimately exercise its jurisdiction and why primarily representational preemption for clothes is either party from creating parallel litigation in district court by questioning matters through an alleged three a one complaint over which the board has already exercised its jurisdiction any can and will have its opportunity to argue to the d c circuit that the board got it wrong and these disputes should have been decided in arbitration what primarily representational preemption forecloses is creating a second parallel track of litigation which could create conflicting decisions result in an even further delay of the effect of the board's order that this is not just a representational issue it's representational plus which is why affinity has taken great pains to characterize it section three zero one claims as merely breaches of contract by the union in failing to arbitrate these disputes and of course it argues that the fact that it underlying disputes arbitration should play no role in this court's analysis regardless of whether the n l r b has already exercised its jurisdiction over those underlying matters but as a circuit has repeatedly explained courts appl this doctrine the preemption doctrine even where party characterizes the dispute is a breach of contract in order to prevent and run around the n r a under the guise of contract interpretation and when you look at the circuits case law it's clear that because the court must actually determine whether there is a conflict the court does not look merely at the parties assert a breach claim but instead what's behind it duty to bargain with the union under the n r a and the employer in response filed the section three a one complaint alleging that the union had breached the contract between the parties by failing to recognize that the employer had complied with the contracts termination clause and therefore no longer had a duty to recognize the union would be your response if the court itself go ahead and resolve the problem for held that well there is a contract here and it provides for arbitration would would you still say i first come first serve is a major really major factor oh  o you could go either way whoever's first you know when you don't know for sure how that might go what would be your fault if it had been the opposite as to who went first to judge merrick my position before this court would be the same in that circumstance and that's because primarily representation preemption is not purely a race the court house downturn instead there is a two part cast that in terms whether the district court properly has  jurisdiction or whether the district court's jurisdiction is displaced because the matter is primarily representational and that two part test is whether the board has already exercised its jurisdiction over the underlying dispute even if those proceedings are not yet complete is recognized by this court in traffic and how exactly then if it's our duty to decide what is primary what is the standard for deciding what is prim there's a two part standard your honor the first part is looking at the underlying dispute as this court did in d p you know construction or in traffic or in doing pick plaiting asking whether the n l r b has already exercises jurisdiction regardless of conclusion over the major issues and as such the same questions of law or fact are implicated the second independent test that this court applies is whether the underlying dispute is an initial responsibilities of the l r b and its decision of that kind of issue should take precedence over any court decision about over any district court decision your honor of course of appeal exactly and that's the deliberate structure and balance of those varied grants of jurisdiction and that's what this court recognizes and decision after decision well what's your response to posing calvin's point that the factually but i don't think this court needs to get into the weeds on those facts to resolve that issue and i'd actually like to address your honor's question to affinity which was was the consent election agreement signed before or after the formation of the alleged implied agreement and it was signed after it's in the record below which was cited in the briefs before this court it is document forty five to it was signed by both parties it's the board standard form agreement and as your honor was supposing it doesn't factor best final resolution of the election objections and challenges with the they say on their required brief i cited cases that support their plot of ad hoc agreement of those cases your opinion do that i don't think they do your honor those cases stand for general propositions like there may be an implied agreement based on conduct or that the parties may ratify an agreement that on signed by conduct but none of those cases get into the specificity which your honor noted here which is you have an unsigned agreement that specifies that it will not be binding and less executed and the parties did not execute it because of this fact is in the record as an admission by affinity because their relationship soured as is evidenced by the stream of litigation that has followed your honor i see that i am out of time if i may briefly conclude very briefly the bottom line is that despite having entered the consent election in cre excuse me the bottom line is that despite having entered the consent election agreement affinity is now asking this court to give the district court jurisdiction to compel representational issues that have already been decided by the n l r b to arbitration and the only purpose of this litigation can be to create continued delay of the effect of the board's order and the union therefore based on all the reasons before this or respectfully request the court to affirm the district court's finding honor looking at the parties conduct we are at at least as to the breach of contract issue and i'm sorry as to whether there was a contract it's at the twelve b six stage it was a thoroughly plug complaint and opposing counsel can disclaim whether the complaint is factually accurate but it was presented and signed on the roll of and we fully stand behind it that the parties and it was the union twenty i think it was twenty five times they cited two specifically to these unsigned agreements and demanded that affinity take certain conduct or refrain from taking certain conduct that creates an implied agreement and at least on a twelve b six motion anything beyond the pleading is improper and the district court correctly found that it that an implied in fact contract has been plowed could the district court later change its mind on whether a contract for once discovery gets that's possible but as mentioned the complaint actually attaches letters from counsel for the union invoking the election procedure agreement drawn or that the unsigned agreement asking that if indeed the parties jointly submitted press release is also attached to the amended complaint invoking the election procedure agreement which followed the i'm sorry so they had the consent agree with the board but these agreements clearly intended something else and as as counsel mentioned that is a standard form with the board these are were negotiated terms that the parties relied upon the other issues i want to touch upon was a mention that it could create a conflict if this action goes forward well one of the cases we cited is out of the fourth circuit not binding on this court was the shopper's world case where the court said could conflicts arise when there is some overlap between contract contractual and representational issues absolutely but given the purpose of section three zero one as interpreted by the supreme court in the carry decision that potential for conflict can't have a court sidestep its responsibilities and give up its jurisdiction and the third point i want to make on the jurisdictional problem blair is simply that it national labor relations act on representation which under the national royal relations act congress you know are beyond gain expertise in deciding those kinds of issues a conflict between that and the expertise if any you know or much that is of an arbitrator and just invites conflict between two judicial systems and what that invites is a great delay and we are not we ought not to go along with it if we can avoid my times of marriage may respond thank you you delay certainly possible delays always possible but i mean we've got it in this particular case i don't know how long the boy has been but what the d c circuit is deferring to find out what we're going to do in this case asking the court and we are not asking an arbitrator to overrule the decision of the n l r b in fact as judge gellman noted that's what's happening in the d c circuit that is a substantive challenge to the board's actions and it's that or that is a substantive dispute over representational issues this is contractual the court can look at the election procedure agreement paragraph twenty at the amended complaint and we allege a breach of that they should have submitted the disputes when they arose to  arbitrator and an arbitrator could still to this day decide everything that flowed from that breaches compensable in some way and he or she could fashion a remedy that would never touch upon the board's conclusion regarding representation thank you your or i think the parties for your arguments the matter submitted in the court will issue its decision in due course thank you