they please of course good morning my name is william wyler i represent the international brotherhood of teamsters airline division in this matter your honor at this time i'd like to reserve four minutes for purposes of rebuttal thank you ron the union is on appeal from the district court denial of its request for appointment or injunction under section two first of the railway labor act against north americans unilateral alteration of rates of pay and other working conditions of its pilots during the course of the parties bargaining and honor there was a t a reach by the parties in august of two thousand and seven it was submitted for ratification by the crew members it was unfortunately rejected and so the parties have rescheduled bargaining but that can't resume until january so at this point you smile green you know this well that you've requested the services of the federal mediator and so forth have you not to assist in future negotiation your honor yes they were question in december of two thousand and five part of  crawford services and those that jurisdiction of the board under section five first continues until the board genes media tory services have exhausted themselves so that's the terminology is the board has basically asserted its jurisdiction in this in this instance it was requested in the board tendered it services based on the finding that its jurisdiction applied ok now to follow up on my sister's question if that is the case as i read the previous various provisions is it not moot if your appeal is from the denial of injunctive relief where the act clearly provides that once the board has asserted jurisdiction in working with the parties to reach the agreement that no changes in the status quo can be made well your honor that the board had asserted its jurisdiction prior to the changes being affected and at the time the district court rendered its ruling at least understood the district court's ruling to mean that it did not consider the fact that the mediation board had tendered that service and then i understand all that but i'm i'm still trying to pursue jazzer kudo's question because i have the same concern and it may not be technically moot but to the extent that the union is seeking injunctive relief here in order to guarantee that the employer will not make changes in the status quo while the parties that go she you now have the jurisdiction of the mediation board and without regard to the legal issue that you presented to us for resolution regarding pre collective bargaining agreements status quo changes the right because in fact this case the mediation board have been if i understand the timeline correctly and i hope you'll correct me if i'm wrong the matter had been submitted to the mediation board before the unilateral changes were made is that true yes judge thomas that's correct honor the claim is made under section two first to the extent that we have commented upon section six and the other status quo provisions of the act it is because at least in my view in light of this cream court's description of the status quo in the shoreline case that to first is part of an integrated scheme to preserve the status quo from the beginning of the dispute to the end and therefore and i think the case law is clear that to first applies at all stages of a major dispute as i understand what you're saying is that the case is that even though arguably section six might be interpreted or your interpretation is that it would prevent the carrier from making changes their theory interpretation is not in its interest is that correct yes your honor that's correct i think but let me let me follow up on that if we were to hold that the initiation of the mediation process grant could hold that the injunctive relief would be appropriate under section six in view of the carriers the fact that kerry does not agree it is constrained obviously of the carrier group section six constrained to mediation i think the issue of maintenance would be very much a present we could certainly explore this with opposing counsel but my question may be that i don't regret not articulating it very well is really a practical question you sought injunctive relief under section two for if section six clearly apply because the services of the board have been involved what need to you have of a declaration from us as to the legal effect of section two first when you're fully as for that reason i don't think that judge henderson in fact denied the motion for pulmonary injunction on the basis that section six protected the employee's interest in this to end the status quo provisions of the act and uphold that determination by the district court on any grounds supported by the record in the record seems to be done this is clearly tell us that section six now apply and i'm having a hard time the status quo while the parties are in mediation which i agree is the playing reading of the statute that that would be the effect of saying that at this point in the process this particular status quo provision applies of the total scheme and that would be the the effective relief which would not require a decision on the two first two first issue by the court but let me turn directly to the two first issue  undermines the bargaining process in an objective manner even apart from finding the subject of bad faith if you consider section two first there is obviously in that provision no distinction made between  major disputes involving changes to agreements and major disputes involving formation of agreements and in fact from the beginning of the railway labor act as noted by the supreme court in the berley case major disputes involve the formation or the attempt to secure a collective bargaining agreement as well as alteration for those of those agreements so major disputes contemplate both and the act does not distinguish between the two in fact it's fo general purpose stated in section one day of the act is to provide for the resolution of all disputes concerning rates of pay rules and working conditions again making no distinction between types of disputes honor i think william should simply be limited to the facts that were in place in that decision the williams case involved changes by the carrier in the talented of its employees wages red caps and that it's for purposes of the fair labor standards act in other words it reordered the wage term relationship which is with its employees in response to a federal mandate but there's nothing in the record of williams to indicate that in fact the carrier made a change in conditions as that would be contemplated by the railway labor act meaning there's nothing in williams to indicate the red caps made any less following the change in the accounting system than prior to it and in fact with the screen court observers they were attempting to use section two first to require the company to both pay them the minimum wage required by f l s a and allow them to keep their chips for themselves without credit towards the minimum wage but that's an issue  carriers obligations under the f l i say not the railway labor act and in fact what the court held with section two first did not constrain the carrier in altering its employment relationship as reflected in this record meaning in response to the mandates of the fair labor standards act but in this instance we do not have carrier unilateral action or reordering of employment relationship based on a response to a federal mandate this is more like shoreline were a carrier privately made a judgment regarding its business interests and therefore attempts to reorder the conditions of its employment with its employees in accordance with its private determination of what its interests are and in that wages and hours of war i mean you could say that williams is more closely analogous to this case for that reason because it involves money and it involves you  know how many hours the pilots have are permitted to work and what kind of overtime they're going to get i mean you could call this a fair labor standards act cases well i think could well be ethical if say you doesn't apply for example for overtime purposes yeah i'm a labor act but i really don't think so because again williams did not involve a substantive change in the amount paid to its employees the legend of how you credited the tips and whether or not that then triggered an obligation on the part of the employer to do certain things that often but under the f l s say not the railway labor act your honor and in fact prior to the implementation of that hello good line he's dealt with with where you report for duty right do you have to go up the line thirty five miles  to get paid for travel time and all that's why yes your honor but the act does not distinguish between for example disputes over rates of pay or disputes over working conditions it into to capture all major disputes governing those type of employment employer employee relations and in fact in williams prior to the implementation the f l s say all the compensation the recapture received was their tips they didn't receive separate wages from their employer so again i would submit that william should be narrowed to its facts in addition to the observation that's made for example in the eleventh circuit tampa case that it involved no history of bargaining it should also be restricted to its facts and that it didn't in fact involve the issue of compliance with the f l a saying not the our away and i would also point out that to the extent in supreme court and williams constrained the application the status quo to whether or not there is an attempt to change terms  agreements because of the language of two seventh the supreme court shoreline later specifically rejected an effort to so constrain the application the status quo based on two seven and found that to seventh has no relation to the status quo provisions of the act and in fact simply states the elements of a criminal offense under section two ten so i think there are as courts of appeal have noted considerable grounds to question that continued for a living of williams your argument and i'm looking  at three fifteen u s oral three where they talk about section two thousand where they say are aimed at preventing changes in conditions previously fixed by collective bargaining agreements your argument is that that language although appearing prohibitions of section six against changes of wages or conditions pending barring those or to seven are aimed at preventing changes in conditions previously fixed by collective bargaining agreements as a as i noted to seventh is not a part the status quo provisions of the act and in fact section six the status quo provision in no way constrains the status quo to the terms of agreements which is exactly what the supreme court found in shoreline so to say you don't read that is as broadly stating that it only applies to a previous me like you're asking us to basically declare that williams is no longer good law because it's been overruled by a shoreline or superceded do we have that authority as well court of appeal your honor i don't think this court need do more than what other courts of appeals  noted which is that williams has weakened his continued validity is in question and in light of the particular facts of williams that it should be read narrowly to be constrained in those facts as opposed to a case in the present case which is before the court which involved bargaining mediation in terms that are under the that are the subject of the major dispute and in that instance i would submit that the analogy to the n l r b versus cats is very apt because cats dealt with that question of unilateral changes to conditions which are mandatory subjects of bargaining in under negotiation by the parties and there's nothing in to first to indicate that it is any less offended by that type of action then use section eighty five of the  in fact the implicit status quo that is in to first would suggest that it is puts more emphasis on refraining from mutallab unilateral action and engaging in bargaining than even section eight a five does pointed out that in one nine hundred thirty four the language was train ainge to add that language he added section to seventh and i think thirty four and they added the language in section six it refers to pursuant to the agreement under the agreement clearly the intent of congress to clarify the status quo only apply what's an agreement was in effect during the first contract negotiations which are going on right now in north american tentative was rejected during first contract negotiations there is no status quo that's our position that's the williams course position the difference between this case and williams the only difference that exists out there is here the change was made while negotiations were going on in the williams case the changes were made part of the commencement of negotiations there are a half dozen cases out there settlement either by a tentative agreement or otherwise that you need some power to have a you need some power to enforce the status quo it seems to me with the underlying purpose of the act i want you there's another point at which you might the role of government the reason that the contracts take so long they go shit on the railway labor act it because the government dictates the pace and if the government feels like one party is being completely unreasonable put them in a cooler and you go months and months perhaps six months maybe year without even having meetings the government makes that the terminations it has nothing to do with a tentative agreement the government could come in well for tentative agreement they could come in after a tentative agreement fails it's a choice of the parties or the choice of the government they can do it either way but isn't that the purpose of maintaining the status quo to give teeth to the role of the mediation board so that it keeps the parties that the bargaining table so that the mediators can work their magic yes and we have no dispute that once you have an agreement in place you cannot change the status quo that's actually not now but i mean we're talking that when mediation has been initiated i think the initial contract there's nothing in the statute the statutory language does not support the idea that the status quo attaches at that first stage which for the first contract is negotiated that's the whole key to this case and if you accept the fact that the courts have repeatedly found including the ninth circuit the wings west case that the status quo does not apply before the commencement is some public policy interest in saying we want to ensure the integrity of the process all the way through and prevent each party particularly in this context of national transportation from taking a position that would unilaterally that would alter the will delay getting that first contract if anything i think it's exactly the opposite if you think about it because if the everything is in fact frozen which is the i b t's theory in this case the employer would happen instead of delay the process of long as possible because at the end of the at the end of the road  status quo attaches at the point that you have a first contract not before well i think that if we adopt your interpretation of what is a second circuit theory make any sense i mean if you don't if you had a tentative agreement  more now than it did at the time this case was tried because it was rejected tentative which is exactly what happened in the in the tampa case so if the company went out now north american made cuts and the record shows that it really was in the record it's on page eight of the but i'm not to say it was that it's the second circuit's interpretation of what the eleven servicing eleven circuit itself didn't didn't make that distinction i don't think it was a factual distinction that the second circuit where that's correct wins west case do the same thing the sequence is again wins west in the first case after the supreme court williams case then you have the tampa case and then you have the a c l u case is the most recent of those of the sequence i think the the  higher degree of permanency and hard to grieve permanently in continuity than those made by the carrier for its own convenience and purposes so that the policy is to recognize once you have a contract in place there's a higher degree of deference over the status quo applies it doesn't apply until that point the other language i just quote from the williams case is where the court says institutional negotiations which are really for collective bargaining does not change the authority of the carrier during just business relations with its employees and i want to set up that way again it could be could be in part a recognition by congress that since a process is going to take so long it's not right it doesn't make sense to restrict the employer for the two three four years that are frequent takes negotiate a first contract maybe that's what congress had in mind but that's the way they were the railway labor act peaceable settlement of labor disputes and the are away are very much a matter of public concern and the fact that congress has indicated that the purpose to make negotiation negotiation obligatory is in itself a declaration of public interest and policy which should be persuasive in inducing courts to give relief and that was under section two of the act and i would point out that the status quo isn't there solely to vindicate the private interests of the parties it is the central underpinning central to the act is a court described ensure a line of the public interest in delaying unilateral action pending bargaining in order to effect the goal of an agreement without interruption to interstate commerce so the status quo is as much concerned with the public interest in preventing disruptions of interstate co very different in their approaches to the question yes trying to i don't disagree that they have different structures and the courts have cautioned that you need to be aware of that ng in analogizing that to the point you make is one the court has ever held that to first has a less or less stringent burden to be targeting good faith in section eighty five does and secondly in fact the description that my colleague gave of the act demonstrates that the place is a action than does the our ally and i would also point out from the point to congress first of all the change to the notice provision of section six was described by mr clemens the railroad spokesman simply being for clarity and definition he did not describe in one hundred thirty four any substantive way to it but the interest of changing terms the need of one party to change terms quickly the court said ensure a line that the status quo harnesses that interest for its purpose of achieving agreements with an interruption interstate commerce so that very interest that the carriers quoted here about antiquated terms is what the status quo intends to harness to achieve the actual purpose of agreement without interruption of interstate commerce thank you are simply time is up