number fifteen dash one six a two sheet metal employers industry promotion fund at all vs absolute found same company incorporated and all argument not to exceed fifteen minutes per side mr lederman you may proceed for the this is an appeal for the six circuit has taken in a lock a tory appeal on certification of the very durable issue of whether federal labor law or state common law controls the threshold in really the controlling issue of whether or not the defendant employers are signatory to and bound by the controlling collective bargaining agreements  this was the first time in thirty years of practice that i've had an opportunity to argue in brief an interlock atory appeal in the federal courts such as this it's been a unique experience i hope that i did the briefing appropriately taken by the six circuit is whether or not we apply federal labor law or state common law to the issue of contract formation involving collective bargaining agreements in ruling that state common law applied to this issue the trial court did not cite to any cases except for one case which did not involve collective bargaining agreements and involved a private employment agreement where in the courts indicated that whether or not the parties agreed to an arbitration provision within a contract is to be looked ahead under state common law it's our position that that case does not apply to federal labor law cases in that rather the abundance of case law they had cited in our appeal briefs would suggest or would mandate that this court conclude that federal common law applies to the issue of whether or not the defendant employers are indeed signatory it's my understanding that judge that cough raised this issue on its own that's correct and both parties relied upon federal common law after the judge did this on his own did anybody bring it to his even though they had to preserve the issue correct originally both parties us and the employers argued that federal common law in federal standards applied to this issue of contract from a site that's rather unusual the issue isn't preserved  friedman we filed a motion and the parties actually stipulated in judge friedman agreed to certify this issue to this court for resolution because judge friedman obviously ok going back to the substance of our arguments the second basis that the trial court ruled that state law applies in the federal law is because the state law a second irrelevant consideration but a holding that only claims that are directly created by a collective bargaining agreement a e governed under section three zero one of the labor relations management act and then the judge took the next up and said they had issues of contract for mation are not directly created by the collective bargaining agreement  as indicated in our briefs we believe that this was an improper consideration obviously this is a breach of contract claim the rights of the phones are derived from the collective bargaining agreement there derived by the collective bargaining cited about state law claims just as an applicable that's correct in the plaintiff i'm sorry the defendant in their ad pelleas brief they cited to a number of cases that address one federal law preempts state common law tort claims those cases are in a political this is we're relying upon the breach of contract claim our rights are derived contractually under the collective bargaining agreement there were sta claims that were raised in a counterclaim in a third party claim by the employers that were dismissed but those are not subject at all to this appeal we're talking about breach of contract claim one hundred collective bargaining agreement and that's all we're talking about again this is the first time that idea of argued it interlocks a tory appeal but it's my understanding that the court's role is limited to resolving the certified issue of whether state or federal law applies it's my understanding as well and we don't we don't have very many  so i'm not going to ask the six circuit or make an argument today about how the federal commonlaw standards would compel the grant of summary judgment in favor of the phones as far as i understand and you have confirmed the analysis stops after the court has decided whether it's my understand i'm just speaking for myself i'm just one of three but i think that the issue framed in this sort of fight question is are there are jurisdiction limited that great great then run the appeals or any other public court most of my work deals with the trial court employed lisa speaker here to assist being she drafted the briefs and we reviewed them together but there's one thing that's important to answer your questions that i think i need to start out with i'm the only one here that was involved in the case from the very beginning and the issue that you've referred to here was not brought up by a motion from the other side by the in this matter it was brought up when after judge zack off unfortunately passed away the matter was transferred to judge friedman at that time judge friedman made it clear that the that he was going to follow the rules that had been set forth by judge judge zack off and wanted to have the case proceed to trial i as well as the defense talked they made it clear that they were going to object and state that in their response in the appeal in this matter if we were successful that federal law should apply and not state law should apply my position was why cause my clients to expend more money after a trial to argue that issue and instead let's bring that issue before the court first ok so in terms of them filing a motion to do as to why we're here today that's not of the motion for summary judgment as well as i do contend today though no state law claims were brought one of the issues that that we have argued throughout this case is that this is not a three zero one case the reason that this is not a three zero one case is and it's in fact supported by the appellants argument in this matter is they refer to section one eighty five twenty nine u s c one eighty five one case determines whether or not federal versus state law applies they've contended that there is a collective bargaining agreement when this matter was first when they first presented their and their writing in terms of what was the question to be certified we filed an objection we filed an objection because that's not what we actually discussed at the time we had this discussion with just friedman it was not only was there an issue between federal and state law but was there any actual collective bargaining agreement involved so now all of a sudden we get to court and we have a say ace the sole issue being does federal or state law apply to a collective bargaining agreement and what we're actually dealing with in essence is the first step do we even have a collective bargaining agreement when in order to resolve this case on the merits which is not our test what do was entered into the next question is are the a pelleas signatories to that agreement the next question is does the allegation do the allegations that have been brought by the appellant actually have a relationship to the c b s at that point citing the ca and each case is there we do we ply federal law or state law my question of whether your clients are signatories is that conclusively settled the matter is whether they're banned by the collective bargaining agreement no i do not believe that it does and in order to resolve that question ultimately you'll have to look not only at the terms of the collective bargaining agreement itself but also to the labor law that governs when  as a matter of logic that one would be referring to the federal law on that subject that is seumas that it's a three a one case but there's even but it doesn't have anything to do with assuming it's a three zero one k i think it has to do with looking at the nature of the e but the nature of the issue is a contract claim between nonmembers the three zero one is set up for the purposes of ensuring peace between employees and labor management this is not a case involving employees in labor management field therefore it becomes a state law claim and therefore you wouldn't use state law tell us exactly where mr letterman has represented that you also thought  and exactly where in your initial filings with the district court we would find the assertion that state law rather than federal law applies he made the statement in his oral argument just before the court that we agreed that federal law applied yes or no yes if you why we would that where would that if that's not correct because i'm in my few minutes ago to tell it she had continued in the district court from the outset that state law applied in my motion i filed a motion for summary judgment as well in which i contended that state law applied the rock or the district court ruled that it didn't apply yes is there any particular place side just look at that i think it's docket number one twenty which was my motion for so you disagree with his assertion that the parties agree to federal law yes but you argued the michigan law i argued that michigan law applied ye getting back to what we hear before the essence of the argument that has been made by the appellant in this matter has to do with the contractual relationship that they contend exist between nine parties to a c b s now i know that the court has has said that they believe the issue the sole issue that we're hear about today is does federal or state law apply to a collective bargaining agreement what i'd like to at least make make reference to is the idea that in this case we have an agreement that doesn't involve employees our clients for over forty years from a factual standpoint have been told you're not members of smack into the two funds that are involved in here in this matter none of them go to two employees none of them go to laborers what are they used for allegedly industry promotion what is industry promotion it's a golf outing in las vegas and other outings that they take part in as smack to members employers that's it my clients for over forty years have been told you're not a member of smack now because you don't pay your dues as a member of smack now you are also not entitled to any of these two funds these are pension funds if these were there is if these were trust funds pension funds then and they contended that we were signatories to the c b i and then clearly this would be a three zero one issue however that's not what we're dealing with here we're dealing with a company that after for an entity that after forty years is is coerced by another entity called the i t b which is a multinational internet called international test imbalance and they come into the metro detroit area and they say listen we're going to pay you into these two funds but we want you to go after the the smaller people my clients who are in some cases mom and pop operations test balance controllers not sheet metal workers and we want you to go back and charge these people for that money but my clients aren't members of smack down i t b joint smack down my clients have never joint smack now they hear we've propounded hundreds of pages of documents in which they're not members behalf of smack into as well as the local and the local union is not involved in this case ken what lee testified that he had been instructed by anthony asher who heads smack now and is also the counts of the counsel in this case that my clients are to be charged the a pelleas or not to be charged because of the fact that they're not signatories to the c b s they've been told continuously they have they are not nor have they ever been signatories to the c b s a so this is an entity that goes out essential and can file a grievance with a local joint adjustment board  or two individuals that are part of the local union aid and they can get an award and then try and collect done that work even though i'm not a member of the sheet metal workers  whether or not there should be recovery i guess i don't i don't see it for us but it isn't for uniformity purposes isn't this more of a matter of federal labor law than michigan state law whether there should be recovery under this under these these facts and these scenarios for consistency purposes what sense does it make to have different rulings depending on what state you're in i can understand if this dealt with a federal labor issue the and if it is a federal label is it not a federal labor issue because there's no labor being involved here there is no laborers that are going to receive a single dime from the money that's involved and really hear you say anything about michigan law in michigan law deals with the relationship between citizens of the state of michigan smack me as a citizen of the state of michigan and following if i may finish following on that that line of questioning the essence of the claim is a non member of an entity speaking sued by another entity there is no labor money taking place that is the subject of this this is for the collection of a quote unquote promotion fund if this was a by the local eighty saying you owed for wages or fringes or something along those lines we go to the uniformity of federal law which is correct you which you're correct but in this case we're not dealing with that we're not dealing with any labor related issue we're merely dealing with an entity coming outside and saying you oh are you better pay us even though we've told you you're not allowed to belong to us you need to pay us in order to do work in metro detroit area so as a result my clients don't get any work any more unless they come up with hundreds of thousands of dollars for six years back that they have been told for forty years you don't get the benefit of it you're not laborers smacking is not labor's it doesn't represent laborers it doesn't lobby on behalf of labor's it doesn't negotiate on behalf of the not used to row but i hate to ask you a question yes but everything you just argued right now you talk about is couldn't hear you at the end replete i do not believe that it derives from the the collective bargaining agreement and the reason i do not is because the collective bargaining agreement is between labor organization member representative which is smack now there is nothing in the industry promotion that promotes my clients work what is my client's work my clients are called tab contractors they're not sheet metal contractors tab contractors are completely independent they are required to be independent by the e p a in order to test the air quality in with respect to whether or not the defendants advocated the application of state law during the summary judgment proceedings i looked at their briefs there were no state law cases they did in even more significantly in judge the at coffs written summary judgment opinion he specifically stated they have both parties relied upon federal law standards neither party relied upon state law standards state law standards were the controlling standards in judges yet cough was not going to do our homework the parties homework for us by identifying those state law standards for the first time in therefore he denied both motions so i think that if you go simply to judge z at coffs summary judgment opinion that will confirm that both parties applied federal law which judge that cough sue a spot they believed to be erroneous the plane or the defendants the employers arguments today i don't think this is the appropriate venue for those arguments it's not the proper time those arguments would be great for their closing arguments at the trial already doing today is determining whether or not state or federal law standards determine whether or not these employers were signatory to the collective bargaining agreements the abundance of case law from the u s supreme court from the sixth circuit and from the other circuits dictate that this is a question of federal labor law for the very two to advance the very uniformity concerns that judge griffin stated we w strongly object to the defendant's characterization that our claims do not rise under the collective bargaining agreement they are directly premised upon our contractual rights to receive these