not a problem not a problem so you have five minutes rebuttal and go for it thank you ok it's ok as far as requests by the court to down the pair to start by dealing with the issue that was asked that was asked of us to prepare for today which was to determine whether or not the appellant's claims for tri part arbitration has been dismissed or finally adjudicated by the district court and whether this case is properly viewed as an appeal for  was was issued there were still some claims remaining the parties and followed what we think is a procedure required by the rd sark circuit and we signed a joint stipulation a consent order that stated their end that all the remaining claims were either dismissed or had been resolved by the parties and that the only remaining claims were was that pursuant to the harmony agreement of the tripartite arbitration which were denied by the district court  counsel and why during the negotiations of the consent order why it may have been changed slightly during the process i think that the overall goal of the stipulation was that it would be a creator a clear knowledge and from the court that there were fifty one rd circuit and had a similar situation here and in that court did the district court look at whether or not the order is a final look at the effects and whether or not the orders final depends on the effect of the decision and here the effect of the decision was that the ultimate relief that was being requested in the matter which was a request for tripartite arbitration or harm agreement arbitration was denied leaving leaving there nothing else to be resolved specifically in the aluminum case it pointed out that ordinarily a final decision will have to affect st the decision will fully resolved all claims presented to the district court and then nd after the session has been issued there will be nothing further for the district court to do record but at the time but i'm sorry to interrupt but to pick up on judge process point if you think of the original motion to compel arbitration is in the civil procedure space let's just say it's analogous but there's a lot of reasons not attach a certification it did all these but let's just think of it as being something like that if a court to nice a motion to dismiss on rule twelve b six that's not the end of a case there's still reject meant there might be trial there might be other than what i had for judge kraus to be asking is well just because you watched that motion that one time with the evidence that you had doesn't mean that i mean the you know why not just come back when i say yeah you know all we had was a barrow certification that wasn't a declaration it wasn't an after the week in terms of evidentiary material why not just say yeah we'd like to do some more digging we come back and renew its win so it really hinges at one level finality hinges on whether your initial motion was kind of one bite at the apple among many that you would have worked it was only bite in your answer and the reason i kind of i apologize but i interrupted you was because if you want to be in front of us you kind of have to say it was our only biden but what you just said when he respond have kind of hole to bite at the apple that's why we didn't kind of go you wanted so because what we realized in the case law it was that we had to be aggressive about this an appeal to mediately because there was a split in the circuit courts as to whether or not we'd be able to even apply for this request for tri part average arbitration later if conflicting warrant to come out against us as kind of developed in the briefing here there is a split in circuit courts where whereas the th circuit acquires you to move for a try part arbitration and seek it out before the conflicting awards come out and so we wanted to make sure we did everything we could appeal this because we could have been foreclosed when these conflicting awards came out so we don't think that but they could be have been doing that but the nd the see circuits went went the other way one could argue that that's a bit of a wrinkle here that they all all five of them dealt with it on the merits of one just said we get to the merits you have to as you know with respect to the th circuit it's a bit different than the other four but does that really take away at this point that are you saying you stipulation does or does not take everything else up this depletion does take everything off the table according as far as we see that the matter was close and the judge seemed to also agree that there were no issues or many before at that time so so so just to kind of complete that thought that if there's nothing else for the district court to do really all we're asked to do here if it's truly fine and we can't send it back for more discovery or doing also get we're basically asked to deter on the merits is what is what is your primary argument there if you've got you've got one contract with fifteen or twenty four the other entity by applying to emory factors and then holding us responsible to standards that i don't think had been completely recognized by the rd circuit at this point for example we believe that the district court erred when it required a stick somehow prove that would be a foregone conclusion that or somehow inevitable that that there would be conflicting awards whereas it seems to be accorded to american glass cutters window glass cutters leave that all that needs to be sewn is that said because i don't think it's just a risk i think there's there's modifiers to that risk quite substantial or or other courts use different modern art but emery i think says substantial and then if we look at the evidence that comes forth we've circumstances with two separate arbitrator's that could potentially issue inconsistent decisions now i mean when someone says to me that something could potentially happen my brain doesn't instantly go to the place of saying oh there's substantial risk of that happening could potential still seems more like a might not likely to or overwhelming probability so even if the district court might have used a different formulation of memory or something like that i don't think there's any standard that i've ever seen that says could potentially is that it is the new legally operative test i understand your honor the yes the certification does use that language could i think that what is what is also important is that we did demonstrate as well that there was in this matter a thirty five why should be concluded that there's there there's any like likelihood much less substantial likelihood of completing the words when and be it twenty five dollars a worry that's now been confirmed by the district court provided only retrospective release and in that situation that's just a matter of paying for alleged retroactive violations yes your honor the issue with the war that is already now been been set out in which is what our concern was the whole time was that the arbitrator would disregard the thirty five year collective bargaining history an agreement that was in place between the parties during the are you know one thing that was important that went on between these parties here is locally twenty five audited audited the company's four year every three years for thirty five years and had no problem with this arrangement new management came to place it all of a sudden became a problem and that out and one thing we did submit to the district court to show how all of this was an interlaced it was the audit requests sent by by the unions fund's demanding three million dollars and classifying union utility contractors in p and i as a related company and i likelihood of a future conflict we get another arbitration award ok because what happens in these arbitrations is that what we are expecting now is for the steel workers just as locally twenty five has done is to look back six years and send us an audit demanding money for all of the work performed by by the two dollars companies now that we consider you know joy employers of the be considered to have violated or violated this works their agreement or now they are arbitrate is now decided that there is no work share cream and that is one of the issues now that that the unions and the funds go back six years and use this decision that has now been put out to say that look all the work that has been done for the past six years was in violation of the a s and we want contributions for the past six years that is a lot that is what will likely come and that is actually an arbitration that's still pending with the funds where they're looking back six years and they're claiming that all of the work done by p n a which is a signatory with the with the steel workers should be paid to them they have actually done this now they're saying that we owe them three million dollars the still workers although they're saying that they're staying out of this out of this at the moment they still have six years to come and come after our employer and say look you  is fine to be followed and we think that we're this court to decide that every factors apply and that they should be followed step by step and lined out then we also would agree with that we just felt that the rd circuit hadn't completely adopted that's standard or senate for split in some of these issues i'm sure you have to counsel them on which circuit to follow were circuit not to follow that's always hard but one of the things i don't think the rd certains even said is that trump tripartite arbitration is ok we never even is and you know i mean a lot of the other circuits say that's ok but that's a really really bold result that's kind of unique to the labor law space if someone has contracts if a business has contracts with two other and these not for labor but for parts and they make a bad contract for the over promised they might be subject to dueling judgments retroactive maybe even specific performance it's but we don't make both those parties go to arbitration with them we don't compel a non party to the contract to go to arbitration so just taking a step back and saying maybe we are riding on a clean slate why should we even begin to do why should we even begin to go down the road that the other circuits on down in recognizing what is really in scream for him or at least compelling a nonparty to an ar on agreement to submit to arbitration i think i think the reason that this should be done here in this case is that for the best interest of the the men involved the men and women involved the companies involved in finality on the jobs well what happens here we have these jurisdictional disputes and labor cases is that one thousand two hundred and eleven union be assigned the project in the other unit will come in and say they claim that work and it will effectively shut down it can shut down the project because individuals be laid off for a substantial amount of time and  large problems work projects private projects we think that this process of getting all the parties together in one room and resolving it all at one time if the unions claim to work let them all aired out in front of one arbitrator one time and then we put it all to it is you know in the motion for the supplemental record you have the decision of the or richard as you pointed out is only retrospective but beyond that and i want to bring you up to date the utility not you know being a move to bay kate the the bilateral arbitration ward we move to have it confirmed and the district were judge we can ten in fact confirmed it i think their participation and them taking the initiative to both ways say to speak and i think it's clear that they made a tactical strategic decision to just go with what they had with respect to on the union's issue on the bilateral arbitration you know as a judge indicated you know they were many things that they could have gone they could have trying to amend their complaint they could have tried to implore upon discovery they could have tried to bolster you know the th know what they contended on the joint employer in the singleplayer wasn't but let's see it's just when you get the best if we decide were we just to decide that the employers are single or joint employee employer egos here who are you arguing against tripartite arbitration as a whole at two things one is i'm saying they didn't submit any evidence that the district court could have are you going to understand once again the joint employer doctor who is being invoked to basically solidify the liability of the two companies it wasn't being put forward as as advice to our federal common law in the labor space to allow tripartite arbitration and the rationale given is to bring everyone to the table that's going to affect the situation but that rationale applies regardless of whether p n a utility or joint employers or single employers because what they're saying is it's it's a set number of jobs one way or the other so one level if the common law is in play to advance in the rationale or the policy for advancing it is to bring everyone to the table who cares if they're single employer urgent employer to be quadrilateral arbitration as long as everyone's at the water i know judge given was given as was on it is you know it kind of alluded that you know upon a proper record maybe you get to the point where you decide the tripartite arbitration whether this circuit or circuit wants to go in the direction you know this the nd the th the th the circuit or does it want to go on the outline or way of the knife the other thing that i think you know basically you know members of this panel have long circuit embracing tripartite arbitration and the every factor it's in principle it's that it's simply inapplicable on the facts that's your argument right if i could if i could  things one is i think as you said on a proper record given the trend is you know there may be a case that comes before this court were issued their side of the issue of tripartite and then decide how it wants to shape it and if it were to do that or were to use this case for medication i think it should show a bit more along the lines of the th circuit in kroger with a combination of emory for eight well i think it really should be there should be conflicting awards it shouldn't be a premature it certainly should be a risk a hypothetical risk of conflict i could see that you could have a condition in the er were is a traditional single employer with perhaps tag onto it something where you don't necessarily need to you know completed by lateral wards but i certainly don't agree with the th circuit idea tell you do this before there's even a single bilateral ward and i think there should be in rejecting the notion that these two employers demonstrated to the court that they were joint or single employers this is there anything else you wish to add before we have got an argument toward is their intent to appeal there and is there any reason that we should hold this case or for that appeal would they could they affect each other in any way well or someone denying their motion for tripartite arbitration at that point in time the appellant's still had on the table claims for injunctive relief against the operating engineers eat i think that's what the april stipulation should have the a fact of ending the proceedings in the district court and converting this else left to do at the district or level at the present time not at the time that the notice of appeal was filed there now i got i got it so it was part of the th but you cleared it up two weeks later i think that's correct killebrew let's say we're dealing here with a final order i mean normally we were to embrace a new standard announced new law we would remain and for the district  cited two other circuit courts relating to the concept of trackpad tripartite arbitration and they frankly made no effort whatever different shapes and sizes one sort of remand is for additional facts right and another is because there's a new standard of law we don't in fact finding we just would like a district court to take  the st cracked it taking the preexisting record and applying the new standard to that preexisting record it's so to the extent that judge krauss's question can be kind of fractioned into different pieces why it a minimum isn't if we announce a new standard it appropriate to rename and to the district court to without any new fact finding just apply that standard think your honor one thing i'd just like to point out is i do think that kind of a mind with but your honor judge attempts to say that there are different types or man's in this case and you know it does seem like it would be appropriate to remand the case back if this court does decide that the emory factor should all be addressing that emery as a controlling law should be that you should be referred back to the district court to reconsider its decision however i also would add the court the district court judge just three of the five emory factors yes and didn't discuss two up but i would just going to add that i think that if that is going to be the standard that is going to be excepted and recognized by rd circuit and that is not me and said i or anybody to publish it really anybody that hasn't adopted the nd circuit's emory factors only thing i'm saying is i just believe that if that is the standard that gets adopted now it being did adopt those factors and they did believe that it needed only to deal with three of them in order to rule you know in favor of the other parties so is your point that my concern is here as we pointed out before that with the wrinkle that when the judge judges point out with the wrinkle of the th circuit you know there is this issue that yeah we didn't have a complete record and maybe we could have stayed in length well what if what if what as held that employer you know you must seek tripartite up to arbitration before it's subject to conflict in awards but it appears that the other circuits say that you can seek it after conflicting awards or issues that right that is correct yes and so what if we just go with the four that the nd the sixt the th and the d c circuit i think that would be fine if the court decided to do that my only concern is of equity and fairness to the equitable you're as to how the district court operated in choosing to look at the emory factors find that three were relevant enough for the court to make a decision and go from there what was in equitable what the court also pointed out in decision that we had failed to go through and present evidence about every single and we factor had we known that that was going to be required of the court as the court pointed out its decision we would have done that but it is not the standard that was acquired by the rd circuit at that tonsil didn't didn't you guess like you know usually if someone is uncertain about what it's going to be they you know and i get your point your clients to talk box because there might be a little tension between different circuits and that just makes your job your clients job a part but usually when someone is uncertain they they tend to put in enough proof that would meet whatever the test eventually it you'd like least common denominator is not always the best legal strategic response to uncertainty in the law it's usually kind of all denominators are met not least common denominator and so to the extent that there was uncertainty that  client's job harder why did why did you go at the least common denominator approach is supposed to kind of cover all the bases or i understand what you're saying your honor but i think would be unreasonable to expect all t expect attorneys and clients to cover all the all the possible avenues of ways that it could shake out to the district court actually required us to address them or factors but what i'm saying here is that the court could chose some other case it could chose some other thirds or some other i mean suppose the member every factors you did address them the court did addressed three of the five thinking that was enough to be necessary where is the possible due process by elation here ok let me i think i'll point out the see if i can find the decision one second under section three a one done so in that context and it is in many that explicit about three permit contracts from that since yes i think in this situation we feel that there that the contractual nexus is required because that's what's getting everybody into arbitration  question but can employer be both a single and a joint employer or is that really an either or formulation either single employer or joint employee but i mean i'm at least resolution i guess my point is isn't joint employer like a fallback like is it your real argument that there are single employer yet and then if they are a single employer well then because of how they operate their company they should be viewed as joint but  i guess what i'm asking is a theoretical matter you aren't saying they're just one company who's actually you're saying that they're forced treat us as one company if we don't meet that test for some reason that we want you to important other test from in  five of the appendix the court judge whittington points out that plaintiffs have made no showing with respect to the remaining embry factors and she puts that in there if if that's how the judge felt and that is the standard that's what require to show i think we should be so the court addressed three factors and is saying that you know affect you did not address the remaining factors therefore should the court well either if and i suppose the argument there that might be you would claim an abuse of discretion but it's hardly a due process violation in a brief in all output and in terms of response your due process i do believe that she's requiring it and we were not given notice that we had to address all of the in the fact that you're bound to the record that you have having chosen to appeal at  understood i think that this would require the court remanded with further briefing to to actually address all the army factors i think that things like that like the c v a with steel workers could easily be attached and incorporated and i think it's something that can be resolved and so at this moment if we do apply i think one we would be able to show not at the vote one that there is actually a arbitration work that's been that's been issued you can see on page on the on the final page for decision she points out that there are no conflicting awards nor is there an arbitration award at the moment something that's changed now is that there are there is at least one arbitration award that seems to conflict with the barrows out for testimony and process and yes yes we also would have other we would also require we would also subpoena maybe records from the steelworkers concerning the sister of the of the history between the parties the agreements between the parties we would also include a certification from workers that were part of this whole arrangement that were part of this work share agreement for thirty five years that understands how the parties kind of went across this relationship one thing that's clear in labor cases and c b s is that common offices show common common administrative procedures so that they always worked on the same projects together for thirty five years we're also going to show they have the same same ownership in the same management team all of this is information that for the parties that it deserves the time thank you to all three counsel for being with us today and we'll take the matter under advise