straightforward matter does not involve getting into the merits there is a collective bargaining agreement that has not one but two arbitration clauses the validity of which was never challenged that the matter in question is something that clearly comes within the scope of both arbitration clauses but particularly the one concerning the resolution of the negotiations at that point the court should have stopped question in articles sixteen section four of that agreement there's a provision that says each employer hereby waves any right it may have to refute the agreement and then it goes on neither party discussed that provision i just i was trying to figure out why is there some simple answer as to why it's not relevant to our analysis it is relevant to your honor but it's not even really necessary because in construing article sixteen section one this court over a ten what section four says under section one the employer never had a right to repudiate that's right the employer that the player might assert a right to repudiate but that question would go to arbitration as it did in the st instance here  and what the courts found in all the cases between hug ug ins and the one thousand and nine to five final decision in this series of beach air conditioning was the by virtue of article sixteen section one and article eight section article ten section eight which is the interest arbitration provision of the parties said contract and away from the n l r b rules including all the rules about repudiation so the you're quite right well i hear you but i'm just i find look at section four why doesn't that speak much more directly to the issue than section one it does but it also says during the term of any extension modification or amendment to this agreement that says during the term of this agreement so there is a question whether the repudiation here occurred during the term of the agreement because the agreement by its terms would have expired on july one two thousand and sixteen that's what i wondered about and but then it says any extension which i assume that i don't well i don't know is an extension separate from the kind of continuing effect provision that exists it sometimes the parties will enter into an explicit extension of their collective bargaining agreement will do this for another year but there's a fixed and point going to exactly and sometimes it'll be one that has a trigger provision that either party can terminate the extension with some days notice now so some versions of this agreement do not contain the reference to article ten section eight the interest arbitration provision and so in those agreements where there isn't that reference and then this would be this section for me come particularly relevant because the article sixteen section one provides that st of all they contract continues in effect during negotiations and then even when the six still continues in effect if there is article ten section eight if there weren't that nd clause about article ten section eight then section four would become very relevant ok but the  combination of all three provisions these two in article sixteen plus article ten section eight have been found by this court repeatedly to manifest an intent to not allow an you're saying that once an employer signs this agreement there's no way for them to get out of it ever no not at it they get out of it after the next term because as jason manufacturing help at the national do one who just didn't board may not impose interest arbitration in a new agreement and and in fact the national joint it just meant board decision in this case specifically took that provision out of the imposed agreement because of jason manufacturing also because of the judgment board's rules that it will not impose a permissive subject or bargaining like interest arbitration over parties objection so in this case the the panel actually removed several provisions because of that objection so what the court said to both williams which is not a that's a sheet metal case but a simple hotel employees case  a employees and jason was that you can do this once but you can't do it after that so it's not a perpetual agreement and those are so the initial term is usually for this was really really up for four years is that correct that's correct what's the what was the initial term on this one was it was actually signed in two thousand and fourteen and it had next brace and date of july one two thousand and sixteen but they it was signed during the  midterm of the standard agreement so i believe that the standard agreement had a term of three or four years but the again this is midterms that only lasted for about two before the renewal can you talk about the impasse here was there was some hard time figuring out whether there was actually a lot of negotiation about this or was this a situation where the union said hey we want to reopen and you just didn't hear anything i mean was there actually come conversations between the parties and negotiations  and that's reflected in some of the correspondence because the when lorraine taylor the president of the company wrote to the union in until january twenty going to tell me she was recounting something that happened previously yes that's right in her letter she describes the nature of the problems that she has or her company has with the contract and specifically the ones she talks about are the cost of the contract or the area in which this company performs work and also there the company's unhappiness with the ability of the union to supply manpower to them  and they those issues were addressed in the panel award as well because in addition to changing the terms that i mentioned to you and the agreement also doesn't make the the economic package retroactive the contract expired july one two thousand and sixteen but the panel decision makes the economic package all the wage increases and fringe benefits effective the following may one two thousand seventeen so it was a break there and also the because of the nature of this small company there were special provisions ordered allowing a four can work week and also the use of more lower paid classifications in this particular company a departure from the standard agreement and also directed the parties the employer and the union to get together to figure out the manpower problem so the objections that were raised in the negotiations where actually addressed in the at the arbitration decision as well but if in fact we're supposed to send this to an arbitrator as you have aptly argued then we don't need to reach the question do we know you don't the way and the nd part of this is would is and it's just like the statutory rule derived from section eight f that in a pre hire agreement the employer may repeat the agreement at its expiration it and there are other forms of doctrines they one employee is older than they have pretty higher agreement matter fact that doctrine predates a half itself i agree so they are two separate doctrines but very similar because they both allow an employer to repu this because they this court is held in that series of cases between huggins and beach airconditioning that these parties have contracted out of those and one of the doctrines there may not be any statutory duty to bargain but there is a contractual duty to bargain that is what article sixteen section one m imposes by virtue of the agreement of the parties and in american metal products there was a no employee unit exactly like this case there were no employees yet this court confirmed the national join adjustment board order in that case because because there was no sense because the court said because we had an interest arbitration clause that's the difference was like the not have an interest arbitration clause there are other significant differences to for instance the fact that the employer repudiated the contract there two years before the union made any assertion of any rights whereas here is so you know opposite and your position here would be he couldn't have repudiated it before well i guess he could have agreed the best he could have done here is come in more than ninety days before the expiration of the contract and said i don't want this interest provision arbitration provision to be in the next contract right and he didn't say that but he he did say after the union had requested arbitration they didn't want that in the next contract and it wasn't in the next contract because whenever a party objects to the inclusion of that interest arbitration provision in the national journal justin board will never impose it and that's what happened here so in the new contract he can reputed to absolutely accept it was a four year term why why was it a four year term because that is the standard term for the area contract in the portland area so they and for an extension not for an initial contract they each collective bargaining agreement has a term that may that is agreed to by the parties and it ranges anywhere from one to four to five years and but each time the contract is renegotiated the parties determine what this length will be they this contract that was imposed by the panel was based upon the area contract between the union and the multiemployer bargaining association so the union and the association determine what the length of this current contract would be and then that standard contract was the one that the panel imposed on the parties here the union and taylor with a number of exceptions are the ones i've just described to you so if we disagree with you  is a question for the arbitrator and it is for that instead for the court what do we do the they decision should be that they and the answer lies in the cases i've referred to previously because in those cases in particular i would cite you to both american metal products and beach airconditioning the last case that that series  but also the union contract away the rights it would normally have after the expiration of an agreement namely the right to strike to get a better contract and they the this really applies to a variety of and  implement all of the changes that i want and that includes doing away with article ten section eight i don't want that interest arbitration i have a right to impose that change and this court said no you don't because under article may have please the court michael garone for the appellee pillar sheet metal as recognized by the district court below the result in this case is dictated by this court's decision in westlake development in that case as in this case the parties entered into a pre hire agreement under section eight f of the act in that case as in this case the employer employed no more than one individual and repudiated the section eight f agreement on the basis of the n l r b as long as stablished one employee unit role in that what you i do with american metal products which says interest arbitration clauses trump the one employee doctrine your honor this case does not the american medical products case does not involve application of the one employee unit rule the unit in that case  two employees well i understand the court but if you read the language there of it's no it's no question that if we have an interest arbitration clause the one employee doctrine does not survive you don't think it's clear in fact in american medical products if you read it carefully the agreement at issue is not even a pre hire agreement under section eight f of the of the national labor relations act the court makes that clear at the end of the decision in addition the american later you have the i mean i've read the language right you have the westlake case nine years later you're on it but the westlake case does not even deal with an interest arbitration clause it has nothing to do with it it has no interest arbitration clause involved in it to the issue is really not whether there is interest arbitration or not the issue is that the n l r b has long held that when you have no employees or only one employee there can be no collective bargaining agreement and an employer has the right to repudiate the collective bargaining agreement at any time during the term of the agreement or after  the employer gives up that right in the agreement itself and that's what we have here right you're under the the provision that you mention article six article section sixteen was never raised in the briefs by the by the union as you pointed out and we frankly think that no an employer cannot wave the right to repudiated agreement under the one employee rule because there can be no collective bargaining agreement without a collective there has to be more than one employer to have a collective bargain agreement and in fact westlake has been followed by both the th and the th circuit on that point and in fact in the th circuit in the baker concrete case says that when the employer employee is no more than one employee the pre fire agreement is not a tory of no force and effect as the very concept of collective bargaining presupposes there is more than one employee who desires to bargain now your honor if my client had two employees even during the term of this imposed agreement those two employees could get together and say we no longer want to be represented by the union and they could file for a new certification petition and then that contract if they voted to get rid of the union would be set aside and would be void because we have no employees the board has recognized that we cannot have an election in order to attain that that same result and so the board equates having no employees with a decertification petition at the moment that the employer decides to repudiate and that's what happened here the employer here has the right to repudiate under the one employer doctrine at any time they can do it today even though there's been a four year contract imposed upon them i suppose we could really repudiate today it doesn't matter when we do it it doesn't matter if we do it before arbitration efter arbitration before the contract expires or after the contract expires we have the absolute right to terminate the agreement under the one employee unit rule ok well help me understand this because i look at the two main cases they say interstate  distributor and camping center camping construction other and i read those cases and they seem to say that when you all get involved in it is in a dispute about whether a repudiation is effective or not that's for the arbitrator to decide and i guess i just don't see a way around that conclusion so help me with it so your honor in the interstate distributing company the court notes i believe it's at footnote four of that case  that there is an exception and the exception comes under the i on construction company case which was a case where the employer had no employees and the interest rate distributing kay says i a repudiate is created by and set forth specifically in a federal statute rather than as here in the collective bargaining agreement itself or in a body of common or other law a political generally to contract matters so in the interstate distributing case there was a specific exception carved out in footnote four of that decision in which the court recognizes that the one employee unit rule poses different issues than a typical case of repudiation and i would put i think point out that counsel when he talks about these a line of cases beginning with i think he says huggins case he says there's a long line of cases those cases were not one employee unit cases there's only eleven employee unit case that really applies here and that's what's like developing or development in that case was decided years after the american metal products case that council put so much emphasis upon and it is also a case which did not have an interest arbitration provision right but your honor even with the interest arbitration provision and even with the arbitration decision which imposed upon my client who has no employees i'm sure you're in it your client has an interest arbitration provision in his contract right that's true your honor and the american metals products which is the case he cites suggests and i read you the one employee unit doctor doesn't apply to c b s with interest arbitration clauses that's right there and then we get to westlake and it doesn't have any interest arbitration provision in it and you want me to say westlake superseded american middle products yes because american m products are on a number one that was not necessary for the decision in the case but a way to many would have been just a minute westlake doesn't even talk about an interest arbitration provision right now doesn't even say anything about it right because your honor now i'm going to interpret issue you're not going to buy me without having me say why does westlake have anything to do with this when i didn't even have an interest arbitration provision there isn't because you're under the interest arbitration clause it's not the defining factor in the ability of an had two employees or fifty employees then we could get out of this agreement within the four years but because we have no employees we can't get out of the agreed the agreement that it that turns the national labor relations act rule on its head the reason why we should be able to get out of this agreement is because when you have no employees you cannot have majority support for a union the whole concept of having a collective bargaining agreement is that you have a bargaining group or a bargaining unit that wants to be represented and if we had two employees like i stated we could discern if the employees wanted to and we could get out of the agreement because we have no employees we can't get out of the agreement anyway for the next four years to me that makes no sense and i think ultimately westlake concentrates on the one employee unit rule and the reasons for the rule in the american metal products case there were two employees theoretically they were ineligible to vote because they were related to the owner of the company but there were more than one employee so i would suggest that the statement about the one employee unit rule in that case is dictate your honor it is not entitle to be followed but then nine years later you have a detailed discussion of the one employee unit rule and then when you look at the six and seven circuit cases which follow west like those cases also talk about the reason for the rule and it makes really no sense to say that an employee with no employer or an employer with no employees is stuck with an agreement for four years whereas an employer that does have employees has an avenue to get out from under the agreement can i ask you to go back to the question i posed earlier because i'm still stuck on why isn't this a question for the that we said there that interstate distributor is going to be the standard not on construction going forward and so i come back to that case you didn't address it before i just want to get yes your honor thank you so much so in cappy construction your honor the court predicts again in agreement at any time during the term of the agreement or after on any grounds after death the court basically said you cannot repudiate during the term of a section eight f agreement you have to wait till expiration now the court in camping instruction it was not thinking about whether the one employee unit rule would survive dekel or not and therefore they made this kind of broad statement that i and construction would kind of go away after dec low and still holds that you can repudiate at any time even during the term of the agreement so the prediction of the demise of the case was premature it wasn't based upon the fact that after deke b decided in made it clear that the one employee unit rule still applied it was a longstanding rule and repudiation could still occur during the term of an agreement so we don't believe that camping undermines ion construction in the to the extent that there is a exception to that interstate distributing rule for one employee unit cases and so that would be my discussion of that your honor  but i also understood and i was trying to read through the law there and as to the general law applied and i didn't see where that one unit was outside of that and therefore it seemed perfectly collective bargaining agreement under section nine a of the act and under section nine a of the act the calculus is different in terms of reneging on an agreement or repudiating an agreement during its term so i would suggest that the discussion really is not very helpful and that the true case that you should really look at and that the district court relied upon was the westlake development case which is really on point because we don't believe that it makes any difference interest arbitration or not i'm not saying that i'm just trying to make sure i understand your argument yeah and your honor i think that briefly let me just ask a question did your client properly repudiate i mean st of all we've heard that he didn't have a contractual right to a beauty aid but if he did have  that judge wofford mentioned i'm not really prepared to to argue in detail why that should apply but they've never made the argument that it does so i think they've waived it but yeah we properly repudiated the agreement and we had the opportunity and the right to do that and i didn't you didn't he try to repudiate it after the agreement was already sent to arbitration well your honor in in january of two thousand seventeen there were some discussions  straight the union open the c b s under article under the article i'm on your article sixteen on marched nine negotiations were attempted on january the th of two thousand seventeen union to vote the interest arbitration provision all of this happened before any letters were sent or your honor in the january rd letter there is reference made that the r twenty five to discussions between the employers but i just got sions does and doesn't get it doesn't say we're going to get rid of this right i'll think st time i can think you have anything and i think your arguments in your believe the district court ruled that the revaluation occurred in march say but there were discussions and back to your question there really were no negotiations in this case the employer is always basically said they wanted out of the agreement there has been really no substantive discussions no goshi asians that would lead thank you st of all i an i and was not a one person you know case in fact i only had six employees when the repudiation occurred i'm looking at the decision where it states and made no attempt impose a four year contract on an employer who doesn't have any we don't know how many employees it has currently well i think we just heard a representation i mean suggesting that they are not being truthful to the court i think that they were truthful when they when the record in this case was made a year ago that they didn't have a concern is that they may get employees in the future and that's why you're so adamant about keeping this and yes this is what happens in the construction industry it's very it's a fluctuating industry someone may have no employees today and get a job and have all the employees tomorrow and that happens a lot in this industry that's one of the reasons for a tough is because of the seasonal and fluctuating nature of that's what this court has held several times about a deaf contracts your colleague opposing counsel suggested that they have a statutory right to repudiate the cannot be waived by contract i didn't understand your briefs to be arguing quite as forcefully as you argued here an argument that that they've waived it can you address whether there is a statutory right quickly in a nd that there is there is a statutory right to there's not a statutory right there's an end lar is that the statutory right to repudiate is not the same as the contractual agreement to negotiate so as the court said in a m p m p s duty to bargain to rose from i not from statutory obligations and that's why the court came to the conclusion that even though m p had no statutory employees at all none it was that was a one person unit case and only it was only the owner it is three sons none of whom  employees within the meaning of then a lot of b and a lottery because they're all excluded specifically it was a no employee you know case and this court said we're upholding the n j be award because there was a contractual duty to negotiate and t was on the panel in iran and more than saying that they're abandoning i and he said it was deserving it was meeting its well deserved death and it stayed dead until this ca and so what was a bad decision under eight f has now being being re resurrected to be a bad decision involving the one person unit rule as it is only by taking on construction reviving it and giving it this new life under the one person unit rule will have any life whatsoever because nobody's mentioned it in the twenty seven years since it was put to death by camping ok thank you thank you very much counsel because just argued is submitted we will take a five minute recess