situation we could not bring an action against a longshoreman under the constitution because they left and that's why we pursued on breach of contract the plate of contractors have pursued claims against the defendants for violations of eighty and  section three zero three of the labor management leighton's act for entering into a cease doing business provision as well as antitrust claims under section one and two of the sherman antitrust act the a lot of ground potentially allegations would you make that would fix that clean your arse a little unclear what the defense complaint is as we've indicated the work involved here is involves huge ship to shore cranes so everyone knows where the work is being done now it's possible that instead of just identifying ports we can identify particular terminals within the ports i can imagine that they would need any additional information other than that but all of that information quite frankly has been disclosed their discovery so if the defendant say well we need this particular thing we could provide that to them it's just that just point it's unclear exactly what they're asking for but given the nature of the work involved there's no question about where this work is being performed ok we'll leave the the constitution talks about the work taking place at a specific place so why would you just allege that instead of say if that's what the defense wanted that's what the court ones that we would do that why not just maybe specific allegations as to where these we would have the work is occurring quite frankly we would have had the court and said look you can't just identify ports you've got to give a particular terminals or something like that we would have done it but what happened is is that the last one the court simply said the defendant argued while giving us the courts isn't enough and of course said i agree it's not enough in your dismissal of precious so we never had the opportunity to do that and so that's what we would have done if given that opportunity so you guys just before the move off yes so what's the remedy that you're seeking on that claim that would be damages and that as i understand it that was not a remedy a permitted under the constitution right it's not permitted under the constitution but since we can no longer enforce the constitution we have to resort to federal common law like if you entered into a contract let's just put aside the constitution united into a contract and we say that if either of us breaches it here are the remedies we can seek and they don't include damages i don't think if i breach it you can't sue me in court and then say hey i want to collect and that's going to limit it to what's in the contract that's correct your honor as long as the remedies available under the contract are still feasible and so the problem was we have  that under the constitution as long as the longshoreman were a member of the a f l cio we have legitimate remedies against them this is a left the a f l cio we don't but what is that and tell you to damage i guess and understand well that was it to do that would be a question under the federal common law and quite frankly your honor that issue is not addressed in the district court well i know but that's been raised as an alternative and it has been but it was not addressed in just a court so they just recorded an address and we didn't respond to it right but you have now and it's before us and i  had kind of struggling but you know why doesn't that preclude you know whatever remedy you're in now just seeking damages it seems to me that's not available to you well you're our position as a sense of we can no longer proceed under the constitution within the a f l cio framework required to allege that we have but the simple fact is we don't have two primary purpose is an affirmative defense eighty specifically provides for exceptions for the construction and construction industry in the garment industry the courts have imposed an exception for preservation the but those are all exceptions it's quite clear in the law that construction industry and garment industry are firms of differences there's no reason to treat primary purpose differently in fact the cases we've work preservationists the bokeh case that we cited but it wasn't at all rb bokeh that's an acronym b o c a and that's a case some time ago that talked about why work preservation would be considered right that's a that's a board decision right yes yeah i'm talking about circuit authority well the most recent case would be the connecticut iron workers case which recently came out and there the court said that the construction is you proviso is an affirmative defense yes ok and ok nothing from our circuit i gather nothing from the supreme  here so but again you know that's they've i cited anything but the idea was even if it isn't affirmative it's not even if it's part of our claim we've said that it's not a primary purpose it's not work preservation but  is work acquisition so we've alleged that yeah but you can't just say that and then that's it you've got to have on the other one factual content and we did we've alleged that they never did the work before that it was only after the p c l c d in two thousand and we specifically say they never did it grant you that but why isn't it still within the realm of work preservation if it's definitely true you're not disputing that it is they are trying to address the loss of jobs in the sector that the tribune i guess or if they are ok know they're just they're just trying to grab the work they're not they're not trying to preserve work they're trying to go grab work and this isn't a situation where they've lost work to technology and they're trying to say ok if you come out with a machine that does this work that our members used to do then we want to make sure that we get to operate the machines that would be work preservation here they simply said we lost work doing work a and so now we're going to go out and try to grab work b that's all it is and it's clear that that is not permitted under either labor law or they trust us now they can say well we're you know we said in our p c l c d that we're trying to do all this well first of all none of that is admissible with respect to the motion to dismiss and or even with respect to the motion for summary judgment but simple fact is that they have to be able to demonstrate that they're specifically trying to replace certain work that their employees or members actually performed and they can do it i mean even the district court below said there was no evidence to support finding the work preservation that's clearly not what the supreme court is set ok why why is that that your case because you're only entitled to go after a preserve work that your members have performed in you're now losing this difficult example is  that the employer says look i'm in this so expensive for me to let you guys do the work suddenly ship it out to a nonunion contractor and the courts say that is a question of work preservation as a mandatory subject of collective bargaining  circumstances you have to negotiate over that but that's what they're trying to do they're trying to reduce their cost that's what you're talking about into georgia tional case of work preservation but it's not the case where the union says look we've lost work  to technology so now we're going to go on trying to steal somebody else's work or c and then if i might just be clear about this we're not claiming we have the exclusive rights perform the work what we're saying is that we have the right to compete for the work in their contracts which say nope you can't do work with nine i o w contractors violates both the labor law and the i trust laws because there are a limited ating the possibility of competition that's what they're we've identified in the brave as the fact that they get a p m a knowledge that they did it at the i o w contractors do the work because what happened is that after the contract was entered and enforced the work had to go to the contractors well they didn't have anybody so they started just saying ok i'll do it i'll do it as always are signatories of the i l w u you can do it so one of their arguments is that hey look there's no adverse effect on competition here because i have a w membership stepped in to do it so those are the contractors that are doing the work obviously they would have been competitors of the point of contractors before two thousand and eight if they were able to do the work but the reason that they weren't active competitors is because they weren't qualified they weren't going to work but once they got the monopoly then they're guaranteed to work but as we discussed in our pre that's in for brand competition just one eye out w contractor please the court thomas peterson for sitting maritime association i'm going to take up to a maximum of eight minutes and then i'll yield the balance to morton who's here on behalf of the union and so i'm going to focus obviously on the antitrust claims which are the only p m a has not engaged in anti competitive conduct i'm nevertheless here asking you to uphold the judgment on the antitrust claims that was entered in favor of p m a and there's a whole series of reasons why you can do that at but before i get to that i'd like to start with jobs it's a question about the these maintenance companies in the brief there's all sorts of statements made about maintenance companies and that they somehow had a role in this but if you actually look at the third amended complaint the totality of the mention of maintenance companies is in paragraph nineteen which is in the excerpts it paid sixty four and all it says is that p m a is a multi employer association whose members include stevedore companies marine terminal operator carriers and maintenance companies there's no allegation anywhere in the complaint that the maintenance companies would in any way benefit from any of the provisions in this case with respect to the  the the this provision of the collective bargaining agreement and i'll get back in a minute to the to the up to the flaws in this case from a section one and section two point of view but i'd like to start which would what i think is the clearest path for this court to uphold in the light of its own recent precedent in the i t c s i case and that's the non statutory labor exemption as the court knows the i t c s i case involved the very same collective bargaining agreement that we're talking  and it involved a very similar type of claim which was that the shore workers union negotiating with p m a had secured rights to in that case reefer work which arguably had been done before by a different union but but that at least in part had been done by by the right that isn't that that's the main ground in which your opponents try to distinguish excuse to say that well in that case though the union have done so non statutory exemption and the reason is that this court's precedent not only in i t c s i but also in a judge kennedy's opinion in the richard's case makes clear that let's assume i'm sure miss morton is going to want to talk about how there's no credible aid evacuation claim here but even if we assume there was that is even if we were to assume that this work had not previously belong to this union it's immaterial to the application of exemption in other words even if there's a violation of eighty it does not preclude the application of the exemption that's what the court held both in the richards case and reiterated ninety c s i case if you look at the maquis factors the third one wasn't was this our agreement the product of arm's length bargaining it's the same contract and all you have to do is look at mr sundance declaration which was filed by the union which points out all the negotiations back and forth because of this technological change they were trying to address this is bargaining tradeoff second if you look at the second makea factor that is whether this is a traditional subject of collective bargaining work assignment as i t c s i kill tells us is a classic of any collective bargaining agreement is what is the work that will be done by the bargaining unit that's what i t c s i case says and that's what even the plaintiffs says in the reply brief page fifty four it is true that an employer may be required to bargain over whether to subcontract work if the union has a valid claim to pressing that work down again whether there's a valid claim or not in the east since it's not relevant to the application of the exemption based on this circuits precedent but it's clear that one of the things that you'd bargain about in the collective bargaining setting is what is the work that's going to be covered by the you know the unit now then then the third factor the third makea factor is live of the restraint primarily affects the parties subject of collective collective bargaining has an impact on others is not does not preclude the trigger of that fact that that element of the maquis test and if it makes a lot of sense because it's kind of his zero sum game after all if if there's an agreement a collectively bargained agreement that certain work is going to be assigned to a particular union well that means the work's not available for someone else to do and this court has sort of made that observation in other contexts as well the phoenix case schroeder sitting in the room that case also makes the point that the exemption the exception exemption rather applies in circumstances where the effect of the agreement is to take work away even though that has some sort of what i'll call the residual effect on those who are not able to do it in that context let me as is ours the i t c s i case and the first mackie act or whether or not it primarily affects parties to the collective bargaining agreement i mean there it was i t c s i was affected it was a p m a company correct yes whereas here the the agreement is affecting not a signatory to that agreement and not the contractor that the p m a company might hire but yet another level so are isn't it actually different th part of the factual scenario in i t c s i itself if you look particularly at the district court opinion at page ten eighty seven the court describes the fact that the allegations included that non p m a members were being were being adversely affected by the by this arrangement and there are some contracting rights were being adversely affected but let me just go back apart from the fact that factually the cases really do overlap i think you just have to go back again to the basic test which is laid out for the for the non statutory exemption there are there can be residual effects which which can impact others but so long as it is part of a collective bargaining agreement as to a legitimate subject of collective bargaining then that puts it within the exemption and you know for example this court in its dumptruck case made very clear that the way you distinguish cases like canal is that the agreements that ran afoul of the and i trust laws were agreements that were not in a collective bargaining agreement and and in canal for example the agreements were aiming at people who do union wasn't even trying to organize themselves they were i the courts analysis did not turn on who happened to be the entity complaining about the particular restraint that was being challenged in that case in that case it was i see c s i who was complaining but the entity that had previously performed the work w the port of portland the port of portland could have come to the court and made the same claim that the restraints that prevented them from doing the work in the required i c t aside to do the work was a restraint of trade in violation of the sherman act the fact that it was i i making the argument instead of the port was not a factor in the court's analysis nor should it have been and that shouldn't be a factor in the court's analysis in this case any sort of an agreement that is alleged to be a restraint of trade is going to affect multiple different parties and and the identity of the particular party that happens to come to the court to complain about it should not determine the analysis and and that's really the argument that th that addressed the identical collective bargaining agreement and the identical provision of the identical collective bargaining agreement there really is no daylight between the two cases here and in fact this case presents a stronger case for application of the exemption because we went through discovery on the non statutory labor exemption we moved for summary judgment on application of unknowns such a tour labor exemption and put in front of the court evidence about the bargaining that occurred resulted in this provision evidence that is in all material respects undisputed in the record there was you about the second circuit case that your opponent referenced because i read that case and it seemed to be quite on point and obviously came out in a way that's adverse to your your client's yours what what is your response are you asking with regard to the the labor law piece or the trust claim of trust and i trust point there is tension to be sure between the connecticut ironworkers case industries that were it is shoe in the two cases and the connecticut iron workers case we were dealing with the construction industry and in this case we're dealing with the waterfront industry where there is a very particular relationship both on the west coast and on the east coast between the unions that represent the workers and the employer groups as a matter of federal labor law from for the last eighty years the union has bargained with a multi employer group of employers who include carriers maintenance and repair companies stevedore companies terminal operators the national labor relations board has said that that is the appropriate bargaining relationship in the waterfront industry and this court has recognized that in other cases as well like the american presidents line case that we cite in our brief which adopt some of the reasoning of the bermuda container case in the second circuit in the context of this particular unique relationship where there is multi employer bargaining person went to an order of the labor board the entity that's charged with the principal authority for to regulating labor law bargaining in that han text when we're talking about the assignment of work to that bargaining unit simply falls outside of what antitrust law was intended to to regulate  if i may i want to use my time left to turn to the other claims against my clients first with regard to the breach of contract claim judge cept you asked counsel for the plaintiff what allegations they would add to the complaint what plaintiff described really only supports the argument that we have made all along which is really what they're trying to do with this breach of contract claim is obtain some kind of order about their general work or trade jurisdiction in the language of article twenty of the af l c i our constitution is clear members can use that  provision to obtain rulings about work at a specific location or work site where they have a history of historically performing that work here we don't have that we have entities like surf city who bid on jobs at multiple different locations they might get them they might not but it simply cannot be it but let me back up so under article twenty you can work regarding a specific location or work site it's clear under article twenty section twenty eight of that article that you cannot use that provision to obtain some sort of ruling about general work or trade jurisdiction and that is essentially what pla seeking here is that any time there is work performed with cranes on the waterfront that involves rigging at any marine terminal on the west coast it is ironworkers work and article twenty by its very terms precludes that sort of ruling we also have the issue of the remedies that they're seeking now plaintiffs say we did not raise that below in fact we did raise it below in our motion to dismiss the initial complaint an first amended complaint judge mcconnell agreed with us that plane was for precluded from seeking injunctive relief under article twenty and it appears based on counsel's representations today that they are in fact no longer seeking it but as your  question perhaps suggested judge watford plaintiffs also are not entitled to damages it's simply not a remedy that's available under article twenty let me speak of my minutes that i have left about the labor law clam if you look at the language of the collective bargaining agreement what it shows is that what the parties were doing here in p m a was trying to preserve work for the longshore union in the face of technological change evidentiary record prepared in the context of the non statutory labor exemption bears that out there's no evidence that there was some other motive counsel me ask you this on this clim is a bargaining association it's a multiplayer bargaining association its member companies have a relationship with the isle wu and when they perform work that's under the contract they have a choice in how they do it they can do it themselves or they can sub contract the work to an entity that is subject to the same agreement that is part of the same multi employer bargain in collective isn't that the no above their claim is that what they're saying that's the violation that is that is their claim that is that is their argument but that is the violation why is them wrong that it is wrong because if you look at the american presidents line case the bermuda container case and the aisle a cases from the supreme court what they explain is that in this industry when you're talking about primary versus secondary employer relationships the primary employer is the is the multi employer bargaining unit collective so it's the membership of analogous organization that exists in alaska to obtain certain work and american presidents line in that case the employer who the grievance was filed against said no this is a this is a no subcontracting provision this  eighty we don't do this work ourselves you're telling us we can't sub contracted to an entity that doesn't have a collective bargaining agreement with the i'll give you they brought that case to the n r bay the rb found no this primary this is the acting within its bargaining relationship a bargaining relationship created by the n l r b acting within its bargaining relationship to obtain work from its employer the collective and this circuit in the american president's line case agreed with that analysis adopting the similar analysis in the bermuda container case from the second circuit so it's simply it's simply apples and oranges when you look at cases in the construction industry where there is this sub contracting relationship and you don't have this multi employer group created by the n l r b whereas here we do if you go back and look at the  creation of this bargaining relationship in one nine hundred thirty eight it's the shipping association case that we we cite in our pleadings the n l r b talked about some of the unique features of this industry that make it appropriate for the union to bargain with the employer collective as a group so this isn't something that was created in two thousand and eight as a result of these contract negotiations or was created as a result of any contract it's not a creature of pan tract it's a creature of federal labor policy by the n l r b that has been and has guided this work on the waterfront for the last eighty years now plaintiffs say that  a cases and others that only secondary conduct violates it before which is a necessary predicate to a claim under section three and three and with that i'm out of time thank you on this agreement is it it's no longer in effect i assume the one that you all are fighting over it is ok because it it seemed like it was going to end at twenty fourteen but it was it was renegotiated and there's now a successor agreement in place basically the same essential to those provisions were you and i don't know from your point of tiger but first of all your honor the reference to p m a companies competing i set forth on page eighteen of our reply brief so that's obviously these companies compete because they are the ones now doing work and that was the whole purpose of the p c l c d was to grab this work and give it to the i don't even tractors who happen to be members of the p m a but neither counsel for the defendants has addressed the issue of the you know i trust violations on their face so i'm not going to spend time on that i'll go directly to the n s a i'll yank that nice actually labor exemption and the maquis test the first question is whether a primary effect that so the question is is that does the restrictive agreement result in for example wages that because they're higher it result in higher prices that would be the primary effect would be the wages the indirect effect or secondary would be the higher prices however if the union and the contractor enter into an agreement as to the prices of the product then that's a direct effect upon the private market and that's what you have here there is no indirect effect here the contract specifically says as in as a limited through the arbitration decisions that this is sub contract there that first this agreement only affects the parties it does not bar any union or nonunion sub contractors from competing with the signatory subcontractors for construction jobs but that's exactly what this agreement does it says you can't compete it doesn't say you can compete but you may have to face higher prices or you know lower prices from your competition who says you can't compete so if you have a contractor who is not signatory to the i l w u but can do a better job better quality at a lower price and provide better customer service this agreement prevents them from competing for the work and that's why it not only violates the of the trust laws but it also fails to satisfy the first requirement of macky that it does not primarily affect somebody other than the parties to the agreement the second part connecticut connecticut our workers is directly on point in that the course of this involves of contracting not work assignment despite the the man thinking that they want to play here it is clearly subcontracted and the issue there is sub contracting is not it's very clear it is not a mandatory subject of collective bargaining and less is done for purposes of work preservation and the evidence in this case is that it was not done for purposes prejudgment so what they want to do is try to produce all this so called evidence to support a motion to this best which they obviously cannot do they're bound by the allegations of the complaint we've explained why this is work accusation and not work preservation and so whether it's affirmative firm of offense or not in which we believe it is we've clearly allege that there's a secondary purpose moving back to the i trust claim is there evidence that this was mandatory no s contracting only work for work preservation and that if you move on to good faith they say well we were night upon this affidavit well that's not an undisputed fact at least come out differently on that issue when we in our previous case we said that  well i thought that we certainly made a determination of you made it terminations just like they made fermentation in phoenix but it really wasn't contested but what you have here is that keep in mind i c t s i did not involve subcontracting it only involved work assignment ok and so you can have agreement that's lawfully in force and some cases but not others and what you have in this case is that the effort to subcontract or the limits of contracting was not negotiating in good fa and secondly you have the p m a made us companies who are of course part of p m a who are standing to gain a lot of work from this restrictive agreement so what you have is is that one part of p m a is saying companies and the union reached in an effort to get the rest of the p m a to all go along with it so that they would now have not just an opportunity to compete for the work but they would have a monopoly on  just a matter of consent it changes the testimony has about seventy five eighty members and given year three five three or five members come in three five numbers come out this has nothing to do with there are b in terms of how the organization is constructed  and the fact is that you can have this agreement that is properly enforced as a sub contracting where it would be properly enforced asked the actual work