our second case for this morning is calumet river leading incorporation against international union of operating engineers local one fifty good morning your honour's ma'am please the court my name is on the best rose and i am one of the attorneys for local one fifty of the operating engineers a f l c i o appellants your honors and what follows i will briefly summarize the facts of this case i will explain why the district court's decision failed to it here to the ninety day limitations period associated with arbitration awards here and why the decision fails to accord proper deference to the arbitrator's word  this memorandum opinion and order your honor resolved all issues in this case and thus it was a final order we ordinarily look for a separate judgment right under rule fifty eight after a judge has issued an opinion and particularly since he will let me put it this way you're challenging under the norris we've already attacked the issuance of an injunction where's the injunction you're going to the court in this and pinion and order a what if styled an opinion in order that disposes of all claims in this case the court grants summary judgment to calumet for fleeting and both counts one in two of its complaint and those  say where's the injunction were we prohibited from doing your honor again i think that i think that the perception the parties both parties share i understand i understand the perception but sixty five into the mix here just my secret because those sixty five does precisely for the contempt reasons that judge hamilton is talking about say that you you can't just refer to another document in an injunction you've got to be quite clear about what conduct is prohibited or if it's an affirmative injunction what you have to go out and do because if you don't do it you can be thrown in prison or you can be fined you determination is that there isn't a judgment sufficient to maintain an injunction the union would be perfectly comfortable with that well there's neither a judgment nor and the junction that's actually it looks at this point like an advisory opinion understood your honor's if permitted i would like to supply the court with some supplemental authority on this question that would be fine but well we'll go ahead and talk about the merits you both sides can file that within fourteen days of today's date and simultaneous filings on the question of this court's jurisdiction thank you your honor and in that in that filing you might also take a look at federal rule of appellate procedure four which does address what happens when no rule fifty eight final judgment is entered understood tzschirner thank you very much so the next thing i would like you to talk about is why do you think the ninety day limitation period applies to a stranger to arbitration if if people are not formally why should they have to comply with the ninety day rule or anything else just because they happen to know about it i don't think in this case your honor it's fair to characterize calumet river fleeting as a stranger to the arbitration but it is actually it's not and you know if you look at the arbitrator's of war the arbitrator is looking exclusively at a dispute between the union calumet to do anything your honor i think that the award actually indicates that calumet river fleeting and salvadorian are alter egos of one another and the relief component the arbitrator does require river fleeting slash selvig marine to make the employees affected by the violations of the contract hole but the police try to come at a slightly different way and that is what would arbitrator's determination that calumet river fleeting and salvage marine are alter egos it sounds like isn't that for the purposes of the issue before the arbitrator for that purpose when self it tries  calumet people or facilities to perform these three jobs then sell the can be told no this is actually you who did this and so you've got to include the back pay and benefits or whatever those things w e but it doesn't actually require calumet to do anything well i'm good at your honor i mean it doesn't say stop lending your people to celtic it doesn't i understand your honor i understand your concerns i think i'm going to refer the court back to the maxim in re bank which says that when an employer receives notice of an adverse decision and a federal labor arbitration it must challenge that award within ninety days or quote expect to pay and quote yeah this is a they were paid it knew it was paint so it wasn't anything to appeal except on the for this potential kind of issue preclusion use of the war grey this is a well issue preclusion is now what you're doing here well no your honor i mean i think we're matching the findings in the award with an existing body of law about the relationship between three goes no one well with what you're trying to do is use i think the issue the issue of factual mixed legal factual issue that you prevailed on in the two thousand and twelve arbitration and say you know since forever more at least for another couple years we get to treat these two companies as alter egos for any other purpose as well right your honor i think what is significant about that alter ego finding is that the companies were alter egos at the time that sell the marine signed the collective bargaining agreement with local one fifty  take issue with your i guess your denial that you are really using this is as issue preclusion because we now have a completely different just you we have this man who you know you want to take his case to arbitration and i'm looking at footnote one in the district court's opinion where she says the union does not claim that there is any other basis apart from the arbitrator's conclude for a finding the county men and submariner alter egos nor does it ask this court to make an independent finding what i thought that was strange and in light of the the normal rule that it's the court that decides is there an arbitration agreement who's in who's out it would have seemed to me the most natural thing in the world at least as backup for you to say to the court and besides the arbitrator relied on lots of evidence whatever whatever we think you should find and alter egos your honor we had already gotten a determination from an arbitrator finding these impact on suit b between x and z and people need to protect their positions if that's the case and z wasn't bound by what went on in the x vs y the case unless they really control him you know there are a few things that you could prove but the court needs to decide that you're in a second case i think the response to your question is this there is no point in presenting alter ego facts to an arbitrator if we just simply have to turn around and on the two thousand and twelve arbitration of cell they could not that's ray being right but but this was limited to only that retrospective relief no prospect of relief and the all the hedges that having a district judge issue only a declaratory judgment and stopping short of an injunction if the declaratory judgment is that the district court find that the case is an arbiter of all or actionable yes i do think that you're right and the district judge can do that i do think that district court can do that yes ok and that's what you base it is a correct that's basically what you agreed to honor he is hoping to get his day in court so to speak with an arbitration with calumet river fleeting regarding his why didn't you go to the jury sherman thought or the representatives i don't think that's covered in the if you'd like to save the rest of your time for rebuttal you may do that or if you want to leave us with one more thought you knew that ok i'd like to leave you with one more thought here answer your question about you know why didn't we ask the district court to probably ascertain from the briefs is that they had such a forum when we arbitrated this case and that it is under serves the interests of judicial economy and all of the policies that surround labor arbitration to require the parties to litigate alter ego in front of the arbitrator only to have the district court disregard that entire set of determinations including the component findings that give rise to alter ego and have to litigate it met river flooding could try to terminate its agreement with local one fifty it's done that before and if that happens if it provided it's done correctly the union might be required to observe that oh thank you statement and we ended up leaving out the reference to do claire tory judgement act after realising that the declaratory judgment acted in and of itself is not a basis for this court's jurisdiction now you're exactly correct it would have been clearer to say under section that we are we're at the jurisdiction lies under section three zero one because this is a declaratory judgment action to determine the right under a collective right and whether or not in this court shorter's never better than longer when it comes to  it's unclear from the record miss how glad doesn't this isn't the exact date rather important to you than the two thousand and twelve or betrayed it's not important at all in that by the time these yuko grievance are arose it's undisputed that salvage could close just go under snow k under your theory it's not relevant but under other theories it would seem highly relevant to me would have no basis under the original arbitration award against salvage to apply that to cal cal yet in his name i understand you you want to argue about that i just don't understand why this rather basic fact under your control is not in this record and not clear yeah i thought it was important as well and spent some time searching through the record for it and i'd like you to explain why being doesn't indicate that you were right there on the edge of of the arbitration arguably controlling even everything that celtic did are not bound by the arbitration your view seems to be only if you had formally somehow been named a party to the arbitration which i assume you would have resisted because you would have said that you weren't a party to the collective is this great lakes floating agreement so that the  an alter ego that has implications that go far beyond these three incidents your honor if you look at the arbitration award that finding doesn't have them any implications because if you think are you just wasting ink etc so i don't think you need to be a genius to think that you're involved in this involved it doesn't mean the same as being bound by the award would you advise that you were bound by a few words with respect to the retrospective relief it was an issue of enforcing this exact arbitration award against calumet river fleeting i would concede that calumet river fleeting might have been down by the ninety day limitations period and would have had do a challenge logically inconsistent with your position that you are just as much a stranger is boeing is you know to this award that you know just has nothing to do with you you don't have to comply with anything you don't have to  even though you are an alter ego somehow you don't need to withdraw again from the great lakes floating agreements i don't see how your half and half hours your honor it if it's based on a bedrock principle of arbitration a party can only be bound by an arbitration decision if it has agreed to arbitrate stabb usually true and the issue here is not whether that's a good proposition of law because it surely is the issue is who is the party is the party just a separate entity celtic marine or is the party this combined mess of an organization that sometimes call marine and sometimes calls itself calumet river fleeting so so who goes inside that bracket and all these alter ego cases that we get in the union sometimes it's organization cases it comes up in different contexts all concern you know how many people are in that bundle of the party correct in the issue here is you say somehow you're not in the bundle that's the issue we are not in the bundle and the fact that an arbitrator said for even more limited purposes that we were cannot possibly be binding i'm calumet because that decision but you would whether a party a god your honor then i don't see why you couldn't why you didn't respond to judge hamilton by saying we didn't even have to pay any money pursuant to paragraph four because if you're really that much of a stranger and you want to relive again of the question whether you are liable to pay for those three incidents then then that makes you a real stranger i don't you seem to be arguing over it into it to be clear under the regime case and i will concede that there is an argument to be made that i won't concede calumet would be bound but if there was an effort to enforce this award against ravine against county calumet in calumet it would have been closer call that they would have had to to make that decision in a way that would bind calumet as your honour's pointed out in an earlier questioning ultimately that decision whether these parties were alter egos such that calumet itself is bound by collective bargaining agreement that is for the court to decide in an arbitrator could not make that decision in a way the pound calcul you met i don't suppose i could ask you about the norse league already issues one of the things that the troubles me if we have jurisdiction here again i don't i don't see an injunction and which would help indicate the norse already was not violated yet anyway but  of this court's precedent and district court opinions discussing that dilemma and i believe it's an under solved issue but it is easily resolved in this case for this reason that the eighteen keep broadband case that the union relies wadia eighteen t broadband is a different dispute because that in that case there was undoubtedly a labor dispute issue with in the meeting of the norse laguardia act and that the parties the union and the employer had an existing bargaining relationship they had collective bargaining agreements in the issue in that case was whether the dispute was covered by a collective bargaining agreement that existed here the district court found in essence there is no labor dispute here because there was no collective bargaining agreement no market in what way when the mean again why we have subject matter jurisdiction excluding explain to me then why we have subject matter jurisdiction dispute by the union so you must be i'm going to bail you out that you have to be arguing that it was alleged to be a labor dispute and the issue before the court is whether it was a spot in having to make a tough decision about whether to participate in an arbitration which you don't think you're subject it in this case procedurally we have a very odd dilemma because it's in assessing in essence that's what the union attempted to do it why do i would have thought that you're better defer arbitration pending a judicial resolution in terms of now there's nothing given that the court has definitively and finally decided that there was no collective bargaining relationship and no labor dispute there is nothing that would correct but just in closing the bottom line the arbitration award itself makes it clear that it was retrospective only it only applied to the disputes that were before the arbitrator in fact the arbitrator specifically says i am without authority to issue a prospective remedy in this case the union blatantly tries to give this award perspective in effect against isn't there precedent for finding that a dispute between a company and a stranger union is a labor dispute for purposes of an arsenal guardia that there is a precedent for that and however so regardless of how many that's come out although i don't believe it's on point with our case where you have a judicial term determination you initially where if there's a colorful claim of a potential dispute there north of the guard to your claim would bar the injunction but here where there's been for a final determination on the merits by the district court as to the relationship between the parties i would argue that that takes it out of the norse of ardea but here on ok thank you very much anything for them is the rose this arbitrator that is sell vic marine which is the alter ego of calumet river fleeting argued the alter ego ego issue in front of the arbitrator that coupled with a broad arbitration clause suggests that the parties agreed to submit this question which the court today patiently characterized as arbitron ability to the arbitrator where that occurs the arbitrator intitled to decide that question i also think that one thing that may have been overlooked is that the whole concept of final and binding which this contract requires arbitration decisions to be some s some kind of perspective application if it were not final and it would there be no need to say final and binding if we weren't expecting to rely on this decision at some point in the future another things your honour's this question about whether this is a labor dispute i think the language of the statute itself indicates that in these circumstances this is in fact a labor dispute even where you could characterize it and i don't think you fairly can as a dispute between two unions what happened here is the calumet river fleeting conferred recognition on the aisle a and the heels of the and that is on the heels of this adverse arbitration decision i believe that they did so as a device to try to thwart the arbitration decision and local one fifty's contract ok thank you very much