the national labor relations act preempt state and local laws that regulate conduct they're either arguably permitted or usually prohibited by section eight before and section eighty the national labor relations act the ordinance is preempted because it regulates what's really the arch of conduct regulated when you get too far on this i want to be sure the scope of what we're covering are you arguing that there's a facial problem here or is this an ad applied challenge to the ordinance it's both wrong or it's both both as applied with respect to teamsters local one seventeen's intent to organize the drivers but also as a facial matter with respect to any other organization that attempts to enforce the statute against the drivers and so so the ordinance regulates what's really the archetype of conduct regulated by section eight before in section eighty which is a union campaign to course employer to agree to only do business with contractors who the union represents and who are subject to the union contract and the citations actually from both sides make that relatively clear so the drivers of course we cite about two dozen cases of which this court in the board of held similar types of union conduct to be illegal under eight before eighty which includes eleven cases that involve section eight before campaign they have a right as independent contractors not to be subjected to a course of campaign under section eight before it which the union attempts to coerce a secondary party in this case and lift to impose the union  i'm sorry if you're looking to who is the primary here who's the secondary part of the drivers are the primary party who bring left or the secondary party so the union through the ordinance is attempting to pressure over lift through the ordinance to in turn impose union representation on all of the drivers who are the primary in the analysis under section eighty four section eighty two of your clients do not qualify under the ordinance how are they injured because the result of the card check certification will be equally applicable to them so they're not entitled to vote so to speak on whether or not the teamsters will become the representative but if the teamsters do in fact collect cards from fifty percent plus one all over lift drivers will be subjected teamsters representation including those who are not eligible to sign a card to be part of the car check process and one and one aspect of the ordinance you cite to that effect the view does it say that people who are not qualified drivers under the ordinance are likewise bound by this determination the definition of exclusive driver representative your honor which is that what three ten one ten which is a designated exclusive driver representative is an organization certified to be the sole and exclusive representative of all drivers operating within the city for a particular driver coordinator so if your drivers are and i guess w start with drivers as a defined term right yes and if your two clients aren't drivers then how are they bound by this ordinance assuming that the teamsters are certified and represent the the others because the certification if the union is certified they become the representative of all drivers not just qualified drivers who qualify drivers is just a limited subset that's eligible to participate or be subjected to i should say the card check campaign because it's a moving target with driver coming in and out you know who are driving for a lift the city has decided to limit who is eligible to sign cards already part of that voting pool to what it calls a qualified driver which is drivers who drove so many rides within a certain one year period that would be the equivalent of of the bargaining unit the bargaining unit would be all drivers operating in with within the city for a particular driver coordinator so for example if  effects who's part of that car check process so in order for a union to become an exclusive driver representative it needs to collect cards from fifty percent plus one of what the city terms a qualified driver which is a very limited subset of all drivers and so if the union is able to get that then the driver coordinator let's just say it isn't term compelled to recognize that union as being the representative of all drivers with which it does business again a car check would have an election or how would that work it's a car check you are also however i don't believe the decertification process takes away the sting of what is the a p for an eighty conduct being regulated by this ordinance which again is the idea of coercing a particular employer here at the oberlin to agree to only do business with contractors subject that unions representation that is quite simply of almost typical type of teamster hot cargo agreement so we've cited eleven cases in our brief there on page nineteen of the opening brief which involve the very type of conduct the teamsters went to a company usually a construction company and try to coerce them or got them to agree to only do business with independent drivers usually was truck drivers who the teamsters represented or who were subject to teamsters contract and the board in the court including this court and team local thirty eight held that violate section eight before or section eighty eight and so what the drivers are saying here is if you look at the ordinance what it's really doing is creating a process for what is otherwise a rather typical example of a teamster secondary campaign under a street where i don't follow that analogy because i think typically would you would have is that teamster going to an employer who's they represent their employees and say don't do business with a someone else would trying to organize and trying to put pressure on the current employer not to do business with the future him or the target of the organizing event so that's what i'm missing here is what is that in order to have a a secondary boycott you had to have it primary target and that's that's what i'm not quite following the primary target are the drivers and the company they're coercing to only do business to impose the union on those drivers our driver coordinators hoover and lift ordinance regulates is to allow the teamsters to compel over a lift or other driver coordinator to in turn impose union representation as a condition of doing business on independent drivers and it's very much like again what you see or s in the construction industry before most of that was stamped out by eighty four eighty the teams would go to a construction company and say we want you to agree that all independent owner operator drivers you do business with have to accept the teamsters constitute a contract and done by the employer quote must be performed by persons operating under a collective bargaining agreement of the local resumes of course that the drivers are under the national labor relations act the drivers will be employees you know to be covered by the hot cargo provision would it the exact opposite they have to be independent contractors for that to the a p foreign aid to apply because it before an eighty apply to when you're doing business with any other person so you need a legally separate person in a business relationship if their employees it doesn't apply so in many of the cargo cases they actually hinge on whether or not the independent drivers were employees or independent contractors if they were employees before an eighty would apply to them they'd be just like any other employees or unions trying to organize but if they're independent contractors then they're a separate organization by definition or separate entity and there is a business relationship and therefore became an eight  four and eighty violation and that's why many of those cases again hinged on that terminations are here of course if it were left drivers truly are employees the ordinance is preempted for the reasons stated in the chamber case under the garmin doctrine what we're saying here is that if the independent contractors then what you have here is regulation of a rather straightforward eighty four or a e situation and even if this court were to think or believe or find as a city argues that this is the type of campaign permitted under section eight before or eighty one percent of cases chipman in production workers in those cases involved union picketing on behalf of independent drivers to pressure a company with which they are doing contracting and this court another held that was primary activity permitted under eight before now i submit those cases distinguishable because there was an organizing objective there but even to the extent it was considered a primary activity and rate before the ordinance is still preempted because the city of seattle cannot regulate conduct permitted under section eighty four and eighty anymore they could conduct that's arguably prohibited and the case directly on point there is teamsters the more where the court tells from court that the n l r b preempted application of a state law to teamster conduct those actually permitted by the statute so either way you cut it whether the conduct authorized by the ordinance is illegal under it before arguably legal which i think it certainly is or is permitted primary activity either way the ordinance is preempted i see him getting very close to my rebuttal time so let's there's a question i believe i'll reserve it instead of eating into it thank you good morning counsel k c pitts for the city of seattle in the a police the national labor relations act excludes independent contractors from its coverage and leaves the regulation of their labor in the court there realize that where in that case the court found preemption of the regulation of supervisors specifically because the national labor relations act has statutory text addressing the preemption of state and local regulation of supervisor oriel labor relations and there is no such text here and this court in the united farm workers case has held that in the absence of that kind of statutory text the courts must presume that congress intended to leave the labor relations out issue to the parties at issue and here all of the parties to both sides of this case and indeed all the parties to both this case and the chamber case take the position that the drivers at issue here are independent contractors meaning they fall outside of the national labor relations act coverage the city of new wind in forty seven when it passed quietly act was enacted he treated supervisors and independent contractors and real weight employees the state of independent contractors the same way as he determined that they would not be for supervisors it's not certain the taft hartley up to term and that there would be no federal coverage and indeed that there was no need for a federal law governing labor relations of independent contractors but the congress chose not to specifically preempt the labor relations of independent contractors and it did that in the same act with respect to supervisors and that's dispositive and this court ruling in united farm workers makes it clear that that were in the out entirely outside the box of the n r a here here the city of seattle exercising that authority created a system of exclusive representation that is identical in all the respects that are being challenged by the plaintiffs to the system that exists under the national relations act or the systems that govern other categories of acts of excluded workers under state laws governing ecker cultural workers and public employees and what particular act or acts in this particular case well in as far as i'm aware nearly every state law governing agriculture employees or public employees and the national labor relations act contain contains a system of exclusive representation which is all that is that issue here there's a process for a majority of the particular bill and i get that i thought you said that all these laws that did this and i'm wondering whether you followed any particular law in other words did you say oh i like this law this is great let's follow that what you want the city of seattle to do and i as far as i know certainly i know i model you know in what respect and my the wording well worded the national labor relations act itself contains a system of exclusive representation like that contained in this so so  particular law other than the in a lhari if we're talking about the aspects of exclusive representation meaning a process for designating exclusive representative that then engages in bargaining on behalf of all i would identify those three laws as well as the massachusetts law governing public employment i believe i mean i'm not aware in the united states of a system that doesn't contain these features that they can want to i mean what i'm looking for things build on each other i had occas recently involving twitter and we went back and looked at the sherman act and the clayton act in the rico act determine what particular words meant because they were presumed to come to the same situation so what i'm saying is if the city of seattle were trying to follow these laws is there a particular law that it followed so the language of the ordinance we could look at that and say ok this is this part been construed before that will help us construe what this ordinance about i'm not aware in a pen if there is a particular meaning i think it's the before so there are two problems there are there are three problems i would say with their theory that the ordinance involves coercion restraint within the meaning of a before the first is simply that because we're talking about independent caught the labor relations of independent contractors rather than that employees eighty four simply not implicated that's the holding of the supreme court in jacksonville terminal in this court's holding in both the pacific maritime exchange and and so we're not in a realm that's governed by the foreign aid to begin with second that eighty four and eighty only apply to secondary activity and this was an issue that was raised earlier all of the activity covered  by that that at issue was primary involves the process through which an exclusive representative negotiates terms and conditions that will cost of government all the members of a bargaining unit to use your honour's language earlier so you don't you don't you don't think that the seems to me that the primary people who are bargaining are who are left and the representative of the union in this case the drivers are the secondary actors is that wrong so i do believe that in this understand how this is going to operate i i didn't i'm not aware that the drivers have to be involved in the negotiation process i thought that the union is going to quote represent them and then live will represent its interest presumably or maybe the drivers or whatever but the drivers are going to get what they're going to get but they're not involved in the process well they're on the drivers are represented through their designated representative which is the representative that a majority of the qualifying drivers have designated right and the rules also require that those entities have a process for driver participation so there is a requirement that that entity not simply act contrary to driver interests it was represented in the ordinance yes that's in the yo what's what section is that i believe it's in the definition of qualifying driver qualifying driver representative your honor so and then national the supreme court's decision in national woodwork manufacturers makes it clear that the fact that the conduct at issue involves both and i'm an employer or an entity that's contracting with others and a union that represents some of those individuals and others who will be subject at this time teamsters local one seventeen is the only entity that has applied and that did apply before the law was enjoined pending further so there did the teamsters play any role at all in the drafting of the ordinance there are specific findings that the court that the city council may justifying the ordinance at issue here no one has been certify yet and it is possible that they would not get fifty percent plus one the stay is lifted will be required to released the names of that point on that or has that happened yet it has not because of the what has happened as of as of now the implementing regulations have issued the local one seventeen requested certification as a qualifying driver representative and that happened and that's that's all that's happened what else has to happen before the case is ripe an explicit a a qualifying driver representative that's been certified has to succeed and getting support from fifty percent get the information they would get the information they would have to succeed in getting support from a majority of the individuals named on that list and the director of the city would have to identify that have to certify that group as an exclusive driver representative for the particular driver coordinator that the plaintiffs here operate for here and lift until that point there's no obligation to there's no obligation to negotiate with the exclusive driver representative there is nothing that can eighty obviously turns on the existence of an agreement and there will not be an agreement even at the point of that point but there would at least be some obligation to negotiate towards such an agreement at that point  that the case is in the form of agreement already been produced no no no the parties have not because this no you haven't met and i'm talking formally as has one been proposed i don't believe so i  involves secondary conduct as they just said it turns on their notion that there are independent contractors here and that that somehow makes distinguishes this from every other case recognizing that the negotiations on behalf of a group a bargaining unit with the the entity that contract with them or employs them is primary activity they say that none of those cases apply here simply because the drivers are independent contractors rather than employees and that's his position that has been specifically rejected by both this court and by the d c circuit in the chapman freight services case in this court and in the production workers case in the d c circuit both both of those cases say what determines whether conduct is primary or secondary is not whether the individuals that issue are independent contractors or or employees but whether it targets the secondary rather than a primary here all of the conduct we're talking about now in the process of gathering support for a majority representative were in the future if that if it happens that an entity is certified as the exclusive proper representative it all involves primary parties involved goober or lift or some other driver coordinator it may be that someone else ends up being the target of some campaign or some effort to put your support all that involved as those entities and the terms that they choose to apply or that they will apply to all of the individuals in the so called bargaining in all of the individuals doing the exact same work for that driver coordinator that's quintessential primary activity it is the activity required under every system of labor relations in the united states council can we  preemption based on garmin or machine is given the fact this case is not right but cord into your thinking i do think it is appropriate for this court to consider the merits as well as the as well as the rightness issue i think as the below did in considering both issues the case the issues are well presented to this court for resolution and i think that it will aid both any subsequent reviewing court as well as the lower courts should there be issues in the future for the court to resolve both issues given that they've been the ripeness well should have no impact on our ability to decide the merits i believe that my understanding is that the court has the ability to read to consider the merits now whether if down the road we have a fight about whether that constitutes  not that could be something that the parties could find but i my understanding is that it's within the court's authority it's part of the decision below it and it's certainly a an alternative basis for the decision below and i do think it would be of assistance to both reviewing courts and the lower courts to resolve those issues  the one point i want to i'm not sure i've adequately addressed this question so i want to make it clear to that to the extent they're contending that right now there is a campaign of some kind that is subject to that involves coercion for purposes of before that is not the case right now all that all that happens before any exclusive proper representative is certified is that the driver coordinator has an obligation to turn over a list of names and to not interfere with the rights of its drivers to make whatever choice they might make in that process so there is nothing that is being coerced even if they haven't cited a single case that says compliance with a government regulatory mandate he does force them to make that decision right and but the coercion involved if for there to be coercion there would have to be an effort to boycott a particular driver they would have to be forms of threats and in the quintessential version would be making threats if you don't do this that we will you know that that is what it before talks about when it talks about coercion here none of the the requirements that the city has imposed has any any effect on who are left at this point or doing business with they remain totally free to do business with whomever they want and i don't have an injunction in place right so hold correct i'm saying even in the absence of an injunction before there's an exclusive dr a representative certified there is no no no the ordinance itself doesn't require anything at during that period that could be described as coersion such that the plaintiffs are somehow subject to an eight before camp campaign it's arguably subject to it before at this point which would make making their claims right which is their core claim i think your honor like to start with rightness and coercion which is where the questioning left off the case is right because other than for the court's injunction the drivers would be subject to a course of campaign under section eight before section eight before makes it lead counsel right now with an injunction in place why is this case right because but for the injunction the campaign would begin so when the district court injunction was lifted the city gave her a lift five days until the campaign actually began to turn over the lists and it's simplest already public are the names already public in terms of all the drivers in the driver's perhaps i read the record wrong i thought somebody indicated that those that information was already public know there was an issue below that there is a public list of all drop for hire drivers in the city but in terms of a disclosure by ober a lift no no i mean but it's not a me information that would be in those list was already out there no wrong  not to my knowledge or honor that has not been disclosed but in terms of rightness it's the course of campaign against goober and lift to in turn impose the union on the independent drivers that is the coercion and that is the course of coercion on the drivers just coercion on on the future employer or the drive a coordinator the secondary party and i think for example may make this very clear assume ignore the origins for a minute assume the teamsters using  means like picketing and boycotts try to pressure over to enter into an agreement whereby the said will only do business with drivers who accept the teamsters representation contract that's rather clear eighty four campaign the picketing is against tuber it's against the secondary party to in turn get that company to impose the union on the drivers as a condition of doing business that's the way a secondary campaign works what the ordinance does is give the teamsters or any other organization that attempts to use in effect and these things that you talk about may or may not occur so were we to rule on the garment in issues would that not just be basically other than just you know philosophizing well it becomes a question of timing of how long does that preliminary injunction last so let's say for example if this court were to dissolve it in three months which hopefully will not but if it did i don't believe it should dismiss this case then we're right back to where we started and others we have two parallel cases right now one of which has a plenary injunction issued into it i don't think it's fair to say ours is not right because so far in the chambers case they haven't attained temporary relief if there were become p r t have this sort of thing before you had an injunction in the court dissolve the injunction then the chamber moved forward you move forward when you have something that's occurred and that's what i'm struggling with in your case to get your argument and but i wonder injunction stays in place so that injunction were become permanent in the chamber case then your honor certainly has a point of the harm were threatened by would not happen until that injunction is lifted so it becomes a question of timing as to how this court