thank you he's the court name is brian winter i would like to reserve five three minutes for a bottle please i'm sorry tell me your name again i don't i don't have a correct name i love  proceedings i would like to reserve three minutes for rebuttal you'll need to watch the clock will try to help you start in this case there are some important key facts they would think they were important to repeat and reiterate before we get into the arguments i represent fourteen individuals who were truck drivers who were told by their employer that if they incurred debt of over two hundred thousand dollars each to purchase trucks and lease the trucks to the the employer to transport automobiles these from the factories to dealership they would become partners with the employer and receive their regular employment benefits through the company these are truck drivers who are engaged in the business of transporting automobiles that put ten or twelve cars on the trailers you see on the freeways all the time with their twelve cars and they go to the car dealerships to deliver so those trucks can't do anything else but but transport cars is that right that's correct ok i guess in theory they could but they're designed specifically for if you can't work and you couldn't take the cabin hook could you take the cabin hook it up to a to a trailer no the cabs on these trucks have what's called a head rack attached to the cab the head rock in the in the cab or one section and then attaches through a fifth wheel a stinger type device to the trailer so that the cab has had record as to it had wrecked will hold two or three automobiles so the ono agreement contains a provision that says the employer pacific has a right to to restrict employment or to restrict the operator from working for other folks and and so it occurred to me that if if this is  a is that a non compete that's just either explicitly by contract or practically completely restrictive of the operator because it is in fact an auto transport vehicle no no it's  contractual only in nature because this is not correct but factually some of these drivers when they were where their contract was terminated they went out and tried to find other work for smaller companies to transfer automobiles and they sometimes succeeded in that regard while under the contract they couldn't work for anybody else basically right under the contract they could not ok so that the the owner the owner operators as drivers couldn't go and work for somebody else even if they're even if their cab was being still leased to pacific is that correct no i think the contract limits the use of the the tractor trailer that some were worried about about about whether they'd taken and take their tractor trailer or go and use it someplace else correct so we don't we don't care whether the  owner of the tractor trailer let somebody else drive the tractor trailer for the carrier for pacific and then went off in some self control for somebody else that could have happened in theory but these individuals or employed by p and t through the collective bargain dream of the teamsters union if in theory it could have happened but it didn't the contract that was discussed with the drivers in exchange for their agreement to go into debt by over two hundred thousand dollars each a contract that was never shown to the drivers at all before they incurred this debt so in order for them to see the contract they had to agree and already signed on the dotted line to finance a truck to purchase they did that they were told that the union would hav jurisdiction only over employment related issues and not on the lease related issues of contract when the drivers ultimately sign but did the union agree to that i'm a little confused by that point that's that's a very good issue because when the union asked to see the contract the testimony in the record is the union was not allowed to see the contract in the drivers we're told they can't even show the contract to the union representatives because it's trade secret and are the employees yes oh definite mean that in the in the collective bargaining agreement in the bargaining unit itself they were there they were the employees of the of is it take that that are driving trucks yes they're there's no this niche of truck drivers are but they're called car haulers close by trade the contract had a thirty day terminations clause and if the drivers never knew that before they incurred this debt but they got the contract it has a thirty day clause that the contract also had an arbitration clause and it tells your your you've now used six minutes of your time you may want to write your argument well there are three bases for having the support reversed the ruling of the trial court and all these bases are alternative first the federal arbitration act exemption for interstate transportation employees applies second the contract itself has a clause in addition to next clause of the contract has a clause that says all other rights and remedies by law are available to the parties in third there was fraud in the inducement based on misrepresentations making the arbitration clause for well any other class of workers in gauged in foreign or interstate commerce and so this question has has divided the district court's doesn't appear that anything court of appeals has ever weighed in on this question that is correct the closest we came was we found case but that was just essentially and there were the court said undisputedly if mr lynch were a truck driver he would be considered a transportation worker under section one of the f a a so how do you get it so the case is there's a there's a split in authority it looks like sort of if you just count them if you're just doing head counting and not counting of reasonableness of opinions we've just been head counting that more courts have held that this is a lease agreement and not an employment agreement well if you and i want to speak the numbers i've got i'm just i'm just stating that's that's what it looks like to me is as i've reviewed the case now when i look at this and i read operating agreement and equipment lease what makes this a contract of employment well if you look at the contract itself and i think this is a critical point in directly addressing your question page one of the contract section two o two the contracts drivers and other labor in connection with the lease of the equipment only drive only or leasing it the contract also says in this is that section here well isn't it it let me just isn't what's required here is is an analysis of a detailed factual analysis of the right of control test the federal common law right of control test for independent contractor versus employees and that wasn't done by the district court the dischord just relied on the  swift case the district court case swift and rejected the england case out of utah and said this looks like you know an independent contractor but there's no real analysis of the of the elements of right of control is there that's correct and  portantly in this case all of the cases as your honor asked the quantity of cases on each side of the fence on this issue the cases that the employer relied on below and here in this court all deal with situations where we have a contract that specifically says you are not an employee you are an owner or you are independent contractor this contract if they wrote does not say that in fact it says on page three of the contract p m t is going to provide workers five zero one ok so you're another practical question that's confusing confusing me ok if he is the owner or not if we agree with you and the owner in operators are employees then aren't they subject to the same grievance an arbitration clause contained in the master the teamsters master agreement which dovetails into the next point yes yes and no because this contract that section  exercising the right here under shall operate as a waiver nor shall any single or particular partial exercise of any right preclude the other or further exercise of any further right the remedies provided here in our cumulative and are not exclusive of any other remedies provided by law that's a that's a very that's a very general provision which even when you've included an arbitration clause and we anticipate those things might be enforceable  then i don't i don't i don't see if that's inconsistent it just says we're not we're not waiving other rights that we might have well if you have an arbitration clause that's going to preempt at some something's you're going to foreclose some things will this says that all of the rights remains provided by law are available in sue and or you can do either or how can how can that be because if these folks were just union employees work for the teamsters forget this owner and operator groom for for a minute they couldn't both sue and an so you're it's almost as if you're saying this gives them more remedies except for maybe the fraud in the inducement claim i mean that's a different is so is that what this is about it it seems to me if it's a claim of breach of contract and we agree that the would not have anything to do with this because they were not privy to it and would not we're not allowed to see the contract that's the problem this contract was drafted by the employer by p s this is a notice is that on track between the individual and  labor lawyer so this is kind of my thing or was years ago i just doesn't make any sense i mean that teams are the union doesn't just walk away and say well we're not going to have any part of this if they did that that's a breach of their duty a fair teamsters in the collective bargaining not that i'm aware of no council be i didn't realize we're cutting into your time and i will allow you time for but i still have a couple of questions so even if this is a contract even if it's a contract of employment and these are employees and therefore you qualify under section one of the f a a doesn't that just mean that missouri last eps in and under missouri law won't missouri enforce the arbitration agreement notwithstanding whatever the f a a might not have under missouri law an arbitration agreement is in forcible with exceptions and one of the exceptions here is that missouri law treats arbitration contracts as as ordinary contracts if there's fraud in the inducement or there's misrepresentation contract is not forcible also if the contract but that's not bad depends on whether you can prove the fraud claim if you can't prove the fraud claim then you've got it then you've got to go if we disagree with you on the fraud claim then under missouri law you're obligated to go to arbitration notwithstanding the can't enforce that because there's fraud if we disagree with you on the fraud claim then you're in arbitration aren't you under missouri law but not by virtue of the f a a and never to the f a a but under missouri law then you teamsters there isn't a preempted by federal labor law and you know i don't have an answer to your question i think your question probably is sort of goes to him so that's not an issue that's at stake if we were to if we were to agree with you in i must have had difficulty between the relationship in this case in the next if we were to agree with you in this case that the district court erred in  interpreting in applying the arbitration provision it would go back to the district court yes and then these issues if we just looking at this case were going to be  unionized employer and what that are you saying that in none of those other cases was their union it was and i don't know that it was me cheerio in those other cases but in those other cases i'm presuming they were not because many of the cases deal with the independent contractor and employee analysis and i don't believe that comes into play in this case because this case is different there's no so during the time prior to the owner operator program the appellant's were gliding as employee right when the appellants became owner operators if they chose to drive the truck they were then driving the truck as an employee you driver but they also wore a separate hat which is the less or the equipment to the company importantly once the lease agreements were cancelled which was was allowed by both the collective bargaining agreement and the lease agreement i'll refer to the owner operator agreements as lease agreements of a may after that each of the opponents had would have any interest in enforcing a lease agreement and you're here today because you're trying to you're trying to and force this you want to make sure this is not an employment contract of employment it's termed a lease we have a carrier and lease or a defined terms here so why is the c p even part of this if but this was was a lease i didn't draft the agreement but i will say that so to the extent that p n t delivered fre driver yes because the lease is dealing with the equipment not the terms of employment the terms of employment would have arisen under the collective bargaining agreements are you saying just make sure i understand your argument are you saying that these folks remain employees of the company subject to the collective bargaining agreement as employees but then they had a separate role as an owner an operator of a piece of equipment and so they were they had two relationships with the company yes that's what you're saying yes so you're saying we should analyze the owner operator agreement not under the traditional common law independent contractor employee test because they because you're conceding they were employees for purposes of their employment yes were standing and in the driver's seat of the truck they were employed so this is not just a lease for equipment the first half of it looks like it's mostly a lease in the second half looks like it's mostly about employment well i think it's an it's a lease agreement of equipment employer to the extent that the collective bargaining it was very it was very schizo phrenic reading that reading that agreement at the first of the first half looks like it could only be a lease and the second half looks like it only could be a contract for employment i don't see in the lease agreement where it discusses the terms of employment it talks about worker's compensation social security taxes and so forth absolutely because of the fact that the company is leasing a piece of equipment from the last war and less or would certainly want the employee driving the truck to be subject to workers compensation if there were an accident that's something that it seems would be fairly common in the least dealing with equipment but a business is going to use in its business and i says the employer it says pacific will provide the driver in the truck the union the unionized work force would require that because the whoever is going to drive for p m t is going to be a member of the teamsters union and he's going to be an employee of the company that could be a whole separate that's a whole course of course we anticipate you're going to be driving your own truck but that but our relationship with you as the driver is different from our op are our lease with us the owner of the reg and i think where this got complicated in this is this is where i was driving the collective bargaining agreement ok it is a there's a national agreement there's a regional western area supplement but those are negotiated between a car haulers association of which p m t was a member and the international brotherhood of teamsters and that particular you'll notice that attached to the plaintiffs complaint was article sixty three of the western area supplement which which actually has some language in it that clearly shows that leases could be cancelled i'll come back to that point but article sixty three in the collective bargaining agreement described in defined essentially all of the terms of the owner operator agreement the sixty eight percent of shared revenue that was something that was negotiated between the union and the car haulers association as a part of entering into the collective bargaining agreement so i believe that the reason that men any of the terms from the collective bargaining agreement make their way into the owner operator lease agreement in this case is because the parties collectively negotiated concerning what the owner operated program would involve the teamsters they viewed they had a right to control the delivery of freight and so the owner operator program is in article sixty three of the western area supplement and i think that's the important part so how was so how was the arbitration agreement supposed to work here so if there was a disagreement between the owner and p m t right then by my right by incorporating by reference to the c b a there were certain deadlines fifteen days thirty days to do certain things and some of those involved members of the teamsters and under the grievance machinery as it's called which is in the national collective bargaining agreement it's been in there for decades it's a very important component the the first step is a local level addressing of the issue that percolate all the way up to joint area committee and the joint area committee is composed of three management members and three teamsters members importantly the management members could be from other companies in this goes to the substantive unconscionable of the issue we were but answered judge by his question because that's it it that's it important question is it in if the if the lease agreement incorporates all the provisions of the grievance process in the collective bargaining agreement then that necessarily means the teamsters are representing the owner operator in the if he has a problem with pacific right it has to be that way because they operator to raise the issue with the union but there is also a provision where i believe the owner operator the driver or whomever is raising a grievance in the case of the lease it will be an owner operator if the union does not timely respond then that that driver or owner operator presents the grievance in writing and pursues that up through the up to the top which would be the joint here committee took did did anybody take these grievances to the union i'm not aware of any grievances that were filed concerning the owner operator program we don't know whether the union would have been would have had any interest and in getting in in the middle of this at all we in the russell case we attempted t business agent but we were unsuccessful at doing so to attempt to answer that question what is the time that he's what is the national master automobile transporters agreement that's the national c b i so that's between the association of car seven right so with respect to the f a a what is that that you want us to hold but it does not apply to this agreement because i know this because of the lease agreement because it's not an employment contract an employment contract even though the given that the unions involved in all of this and referred to and if it is an employment contract then the labor management relations act preempts the f a a with respect to that issue ok so if the f a a let's suppose let's suppose that we that we held that this was know i don't believe the district court i got that out to have did you make did you make that argument i don't recall if they get or if you don't believe that was a specific point if you have you raise that at any point in this litigation  earlier that maybe i'm misunderstanding something why would missouri law apply if these are unionized employees something to be m r that's where i have a problem is that if missouri law applies i still think that an employment contract and that's the important it seems to me issue then the collective bargaining agreement is incorporated in it's this is arising out of a collective bargaining it's a dispute arising hasten point three thirteen f third seven twenty one smart versus international brotherhood of electrical workers it's a seventh circuit two thousand and two case which resolve the conflict between the f a a and the labor relations in favor of the labor relations act saying that it premiums all other and all other laws resolving disputes arising out of a collective well i don't why did you i'm sorry going to go now why did you just say then that missouri missouri longwood in force it the you know i think it should be enforced either way why i know that but isn't it a preemption ultimately i believe it's a preemption issue but i don't believe it's an employment contract and i guess that's the the difficulty if you  again because of the fact that p m t was unionized and because of the fact that the collective bargaining agreement in pleaded a specific recitation of many if not all of the terms of the owner operator program it seems like that would have formed the basis for incorporating the the grievance mechanism into the owner operator agreement you know the employer the employer drafted this agreement right that's right so don't we and obviously from all these questions this is about as ambiguous of a situation as you can imagine it seems to me don't we have an obligation to read this contract in try to make sense of it in a way that is favorable to the to the employer to the employee or contractor not to the employer has to be interpreted against the draft or doesn't and that's the general rule of law or on emotion twelve b six motion so you review the facts and the complaint in the light most favorable to the opponent as well but ultimately if you look at the western area supplement and the fact that this was a collectively negotiated program i think that is the point that has to be considered that's why  of the very beginning the issue of the collective bargaining agreement being an overarching issue in this case some of the plaintiffs say they say the union walked away from this and said they wanted nothing to do with it but but that's not the program and the tiriel terms of the program are negotiated and in the collective bargaining agreement whether the union decided they don't have a claim or not and decided not to pursue the grievance on their behalf the program is between the hollers association and the union not agreement it was maybe pursuant to that western area agreement but then it gave it to the union in the union walked away is that what happened when you say they gave it to the union and walked away or gave it to the employee to the drivers and then the union they say the union walked away and good morning to do with it i just i'm not making sense of this i don't understand that point either i don't know what evidence that's based on i mean the the company opened and the owner operator program it allowed outside owner operators to come in as well as employees it wasn't just employees go by trucks there was no requirement that they buy trucks open the program it maintain the program the two thousand and eight recession comes crisis in the auto industry they terminate the program i don't understand what it means by that the union walked away if there was something that happened internally that the union did not pursue grievance on behalf of the palace it's not in the record i better test is to have the appellant to prove that the exemption applies which they did not in this case and therefore i'm going to hold that it's not in employment is that what you argue yes yes ok thank you mr that  he participated in one of the meetings and then he was excluded and he was asked if there is anything else he was involved in p said there wasn't much communication when the owner operator program came in i asked for a lease agreement they wouldn't give me one i asked for it many times they would not give me a lease agreement on the owner operators is that before that before the leases were signed or after the leases were signed and he doesn't say i have to go back and read the transcript understanding was that the union was not part of the unions on happiness was that they weren't allowed to see this before they were signed so that would be consistent with that but it wouldn't tell us whether the union was not involved after the leases we're talking well then we get we also submit declarations of five different these these declarations state p m t refused to permit the union representatives to participate in some or all of the owner operator meetings but again is that before the leases are signed or after the leases are signed before they are sign it and they also state we were told it was stated by p m t there were be no right to file a grievance or present claims to the union grievance proceedings for anything related to the p m t owner operator program and the it's not just one declaration we have five declarations