hm i'm willing to give up that time to ask but otherwise i intend on using the twelve minutes and three minutes for a bottle that said today because the national labor relations board board decided in this case that it was precluded from even deciding this case on the merits based on the petition clause of the st amendment in doing so to interpret the bill johnson's restaurants which is binding supreme court precedent as well as clear and the board is adding this requirement and let me tell you why that is and i know you've seen it probably cited by everyone at this point in this footnote five and it says we're not dealing with the suit that is claimed to be on the j of the state courts because of federal law preemption or that is an objective that is illegal under law to us it's straightforward this is a suit or in this case a motion to compel which case law has informed it that is the quibbling to a lawsuit that has an objective that's illegal under the n r a and the employer itself and either bush has never contended that its motion to compel pursuant to this conflicting arbitration policy that only applied to non bargain people ever ever applied to mr brown  so we think that the language is plain in the language is clear is far as chance question i guess more specifically how this applies to other cases i think that's one of the big issues in this case  the position clause gives the employer the right to to excuse me apply unilateral change to bargaining unit members because argument that has that argument ever succeeded in the court before dance your question there are very there are cases that apply motions to compel under the interpretation of contract to a language and filing in a grievance or requesting arbitration and this is not an uncommon case but this is a this is a very  ask this court to do is transferred back to the board so they can make that determination on the merits but again we don't think that there is this underlying lawful act we think majority addresses the dissent in this long elevators case and in that long elevator case they again it's about trying to compel on their theories which i think shows the logical fallacies in this case and that's by really coming out and saying well because they interpret the contract this way then there's an underlying act which is the contract itself in some way why they're requiring this underlying act and how come they're not following some of the past cases like a long elevator which didn't have this requirement so i don't think it's necessary and as i think the petitioner union now agrees that the issue before the court in this case is exceedingly narrow and that is whether assuming that the bill johnson framework is a political here because no party challenge  application whether the lawyers motion to compel arbitration in this case fits within the legal objectives sets and to bill johnson and because that's the only issue properly before the court i of this other business and that is what the court is supposed to decide this let me say just speaking for myself as to call it with all the initials we've got going around called the arbitration agreement as to be distinguished from the collective bargaining agreement thanks to me you have loads of obstacles on that agreement you have fourteen can fly as it says you're supposed to clearly in any collective bargaining agreement make it clear that the employee is waving a right to litigation in a court of statutory title seven types of things that didn't happen here i don't think you've got your argument that well what the heck about that he signed it before hand he wasn't even an employee but then you've got also got case law that says look employee definition stretches more broadly than that it covers both you know when you get hardy whatever you sign before it still covers you when you're hired and it covers you when you're fired is that the only finding in this case and the only finding on review in the current posture is whether the board properly found that it was precluded from finding the motion to compel arbitration to be a statutory unfair labor practice under you know perhaps invalid somehow under federal law all the board found here is that under supreme court precedent the board as an administrative agency is precluded from judging the stationing conduct to be because fourteen times last it seems to maida you can't do what you're trying to day here so you lose that what point does your continued litigation of what may be a loser argument reach the point where the n l r b can say this is an unfair labor continue doing this well your honor i think based on the supreme court's opinion and being in face construction which involved completed litigation which a court had already found to lack merit  the supreme court has held that at no point can the national labor relations board a judge petitioning conduct to be an unfair labor practice so i think as far as the board is concerned the fact that it's dismissed the case the position to say that the motion to compel was on the merits was improper the only question before the board was whether the actual act of filing that constituted a statutory unfair labor practice and that's the only issue that be well i think that the board resolving that is precisely the type of resolution that the supreme court intended to avoid and bill johnston's because the supreme court explained that decision and also in  in bill johnson's specifically the illegal object of accept and which was the only exception raised for the board and preserved for the courts reveal what you would you concede that if at the least somehow we get to closure here and we get an appellate court decision saying look you can't use these are these arbitration agreement of using for the variety of reasons that you're not going to be valid company you can't do it would there come a point where presumably be baseless and potentially retaliatory would depend on the facts of the specific case that was brought up but again i think the board's view is that the issue before the court in this case is very narrow  johnson that a lawsuit must seek to enforce an unlawful underlying act rather than itself being on lawful what does that mean i'm not sure i understand it yes application to brown and whether that would be unlawful but i want you to sort of untangle for me the theoretical foundations of what the board say what is in the underlying the supreme court must have been and that that there needs to be something unlawful aside from the actual act of island gauging and conduct which in this case was filing a motion to compel arbitration so for example in the long elevator a that was discussed by counsel for the petitioner as well as the dissenting board member the distinction is that in that case the union all we're looking at is whether it's facially lawful or not roger then honoring at and with me rather than looking at whether even assuming it's facially lawful the only alleged unfair labor practice in this case was a unilateral change affected by the filing in the boards that is outside of what the supreme court contemplated with the illegal object of exception because he didn't know that which is another way of saying it's facially lawful and therefore whether it was unlawful as applied to brown or not is of no moment that doesn't fall within the exception bill johnson is i just want to understand is that what they're saying or have i missed apprehended that as well well i think what the board are saying your honor is that it turns on the actual objective exception yeah i understand that's what they say but explain the rationale behind that i think the rationale you hour is that if a court looks at bill johnson for example the supreme court emphasized the importan bush the national labor relations board majority correctly dismissed the unfair labor practice complaint against in times of bush in doing so the board majority properly found that anheuser busch lawfully exercised its right to petition the government by filing a defensive motion to compel to enforce a pre employment arbitration agreement in response to mr brown's discrimination lawsuit the board majority appropriately recognized they had no authority arbitration act embodies a liberal federal policy favoring arbitration agreements and as mentioned earlier in this argument that liberal policy prevails over the national labor relations act and  forty seven never filed a rule eleven motion the district court and in fact the district court has not even ruled on the motion to compel yet and it's undisputed that and has it bush did not file the motion to compel to retaliate against  district georgia case i've seen others where companies lose on these kinds of arguments at what point can we would you concede that if companies continue to try to compel arbitration when it becomes clear that not this is not your brief talking about concurrent jurisdictions in the questions i have for you are we talking here about nothing more than which jurisdiction is going to actually decide this and why if it's not crystal clear at this point why the th circuit has  effect the board's decision races eight hundred and seventy eight years of waiting and litigation as to whether there was an unfair labor practice and trying to enforce an agreement that you would get really for the district court the district court will rule on this or any other kind of case like this it will go up to the appropriate court of appeal a decision will be rendered as to whether or not the arbitration agreement can arbitration can be e why is that not a suitable way to handle this on these cases than to have the n l r b come in with an unfair practices charge why not through you still get your day in court correct decide the issue under the board's primary jurisdiction of deciding what constitutes an unfair labor practice so it's a problem here carol but that will have already been wrong the district court deferred it went to the  asking is is there any way for this court on this appeal from the n r a determination for us to simply avoid the question and say we can't just send it to the district court the only thing before us is an appeal from was mentioned in the brief is indexed in a brief district court's records but that case there was never an issue raised in that case as to whether a five issue as to whether the individual arbitration agreements are the employee application agreements were lawful under the national labor relations act that was never a little gated issue so it's not that that argument that is that that this case this can't be a baseless argument is is is not a binding it's not precedent on that point because it was an issue that was never decided it was ever even raised or briefed by the parties and that party in that court's time if there's any other questions they have of me specifically i would be more than happy to try to answer them but would probably run over and i apologize to the units attorney if of consumed time that he was expecting to be able to analyzed under the illegal objective standard as far as the other some points that were made about whether it's baseless or not i agree with the board that it's those those issues were not preserved or brought properly so those are not at issue but i do want to make clear that there are actually two arbitration agreements the one with the union and the one that the one and either bush is trying to apply  is in that cases on that the states compelling interest the state's rights compelling interest in local concerns so i don't think that that's relevant at all to this particular case which is a federal law