homework we've done a whole new route so let's get to it ok so the big three injunction here should be vacated for multiple reasons first as we said in our brief this case involves the straightforward proposition that words mean disavow any implied agreement and that's exactly i'm glad you mentioned that because i'd like to draw your attention if i could to the january th letter and specifically the sentence with respect to arbitration the company will decide its obligation to arbitrate grievances on a case by case basis i know you're familiar with that a one billion times i wanted to parse that language with you know ask you to explain the intent behind those words the language the company will decide it obligation on a case by case basis we know that that language is drafted within the context of a legal principle that the parties are obligated to arbitrate in green matters that arose before the expiration of the contract you have to arbitrate those matters that's what the language of those cases teach the language as written here suggests that we're talking about a different category of things because we know you've said we know what we have to do under the law but this language seems to convey that we're talking about things that are outside of what our legal obligation is not is what will work hard to do based on events that arose before the expiration of the contract isn't it a fair reading of this language to say that the company will decide its obligations on a case by case to capture things that arose post expiration yes it refers to grievances that arise after expiration of the agreement and the reason it is framed this way is that agree this post expiration may arise post expiration or may arrive going to the collective bargaining agreement before expiration i'm speaking about events a understand your point and speaking out events that occurred after expiration of the events here  ts that arise after expiration would be captured by this language the company will decide on a case by case basis whether or whether operator arbitrary agreed those product that is correct and so that's so if that's how this language can be read it's not a complete this in value of the arbitration obligation it's it lets the reader now arbitration grievance could still take place what's changed would be the company on the side correct but what's the company's basis for deciding if you just follow the judge towards his logic and the question i have is by reading the sentence prior to the one that you just focused on one would think the distinction that the people is drawing is between what we are statutorily obligated to arbitrate and what we are contractually obligated to arbitrate and that  post march thirty one we are not going to arbitrate those matters that we are that we had previously been contractually obligated am i wrong about them i think there is no statutory obligation to arbitrate post expiration here the aim of the company was specifically isn't maintaining the status quo statutory obligations yes but not in the category of mandatory subjects that have to be as to which the status quo must be maintained that as a function of the duty to bargain or be law is that arbitration clauses like in the strike clause is one of the categories of mandatory subjects if addressed in the contract that falls away and has no further effect on contract expiration so does that mean that upon contract expiration upon april on or not taken on based on your view of the legal obligations think the view was that absent the sort of implied contract that loosens would contemplate which is language is intended to  then the question about grievances that arose post expiration would be subject to the supreme court's test under lytton which sets for three criteria for when a grievance arises under the expired collective bargaining agreement in which case there is an obligation to arbitrate or if they're not in those categories of recurrences that arose under the expired collective agreement in their their origin there any ology is soley post expiration there would be no obligation to arbitrat and so what this conveys is that a company is not completely disavowing its obligations arbitrary consistent with an r b i law and nd has grievances arise post expiration it will assess them according to the test and financial systems and if they are purely post expiration matters with no origin in the expired agreement they may well not be arbitral on the other hand if scenario where you have a grievance and a dispute that arises after expiration meaning if it the events occurred post expiration ok and the company ops to participate in agreements arbitration process to resolve that dispute with the with the company b and the union be following the step process that's in section ten of the collective bargaining  to continue the process we went over when you get to the arbitration step the end of the grievance procedure the n l r b law is that arbitration doesn't survive contract so merely because language conveys that arbitration would be a part of the process of resolution of whatever this dispute was in my correct depending on the case so let's take this case for a sec and this all just give me some guidance the record  gives just a little bit of information about the status of the grievances it's possible your answer may not may go outside the record not to let me know that but we know that a grievance was file it filed we know from an affidavit or declaration from a member of the union the union that the company's position was we will not proceed to the status quo we're not going to follow the status quo but there's nothing in there that says we're not going to allow the grievance arbitration process to believe the record reflects all i would agreed not expansive terms that the events giving rise to this whole dispute occurred not back in two thousand and seventeen but in two thousand and nineteen  exercise that doesn't take anybody anywhere but i think the pertinent issue here is that the grievance was filed a lawsuit was filed to enjoying a part of implied contract you standing you correctly participation in the grievance process is not inconsistent with this about correct because in your view participation in the grievance process is required outside the record you can't reach outside of the four corners of the document understand that intent that you're expressing so how is that in your mind objective and clear under the tests that guided contractual interpretation back to the that's a disavowal of the obligation that existed during the collective bargaining agreement it's mandatory during the term this is a clear expression that is not mandatory post expiration by making optional what was previously mandatory cases that attempt to achieve a goal of straight up this is how we are only we what we were only arbitrate that which were required by law a lot require someone to arbitrate that which is based on events that arose pretty expiration full s so that's that's why i for one have been very drawn by to this language because that's seems to convey a different message and in fact the way you've explained it it meant to convey a different language in different message than that other type of other example of language i use additional point here is but the district court below this was not an action to compel arbitration it was an action to enforce a specific term the grievance procedure by way of injunction this status quo let everybody employers pay him health benefits to get to the point of finding an implied contract that would cover the status quo provision that's not the arbitration clause the mr corbo had to find an entire implied in fact agreement and then find that this remains procedure was included in it but wasn't the status quo provision within the grievance arbitration provision in section ten which said wow we're attempting to come to a mutually  resolution of this through alternate dispute resolution we're not going to change things unless there's economic considerations that lead to the company's decision or discipline neither of those action exceptions apply so why did why was the district court if it  concluded there was an implied contract arbitrary in a party going to continue arbitrary to include within it that which is within the arbitration clause which is the status quo and i don't i don't read the district court's decision of imposing an to happen so here earlier and earlier in that january i'm letter of the companies that when the current agreement expires on march thirty one few thousands of t all contractual obligations all expire you know argue that included the status quo pre and stand thank you so let me ask you this you can always quibble about whether you could have said something more clearly but the question i have for you is is the fact that there are there is rather more than one reasonable interpretation of how to take a case by case language does that lead to the conclusion that there is not a clear disavowal so what i specifically want to know is judge schwartz has suggested to you a way of looking at that language and then as of course the way that you interpret the language is the fact that there are two reasonable interpretations of the language does that undermine the notion of the number one i would really redirect reiterate what i said a moment ago even if one might have said this with better magic words than saying we'll arbitrary post expiration on a case by case basis to me it still operates clearly as a departure from what was the obligation to arbitrate during the contract term and that's a mistake before we had to arbitrate during the term he said clearly post expiration it's our call will make a case by case that is far different than the obligation which is mandatory to arbitrate during the contract term so could have been worded differently perhaps do i think it's a disavowal i do the other part of it is that that the district court seemed to say that the mere fact of this particular sentence about arbitration was enough to entirely undercut the disavowal earlier in the letter of all the other contractual obligation other words just because the disavowal of arbitration in the district court's view was not as clear as it should have been that the basis for implying an entire implied in fact contract including portions of the grievance procedure and can one quibble about the arbitration clause to me the earlier part of the january th letter clearly disavows the rest of the contract implied back contract outside of the arbitration clause including that portion of the grievance procedure to take on the obligation to arbitrate agreements as well as your rights to expiration correct and it's on an event that arose after the expiration with the process that's being followed to address that dispute if following section ten grievance grievance are pick an arbitrator except would we be would you guys be looking to section ten because that seems to be what the course of conduct would have been in the past and is that a fair statement that we would look at section ask you this in the time since the expiration march thirty one two thousand and seventeen the record is generally not the arbitration process and people comporting themselves consistent the collective bargaining continued but my more specific relate to changes to a digital newspaper and the loss of jobs as a result of that occurring well after the expiration of the collective bargaining agreement it's hard to see how those host expiration  origins in the expired agreement back in two thousand and seventeen or senior position on that mike why it goes back to the the language where the company has take on the obligation to arbitrate grievances if if we're going to turn our attention to section ten to guide our activity as being the union in the companies within that is the status quo we're going to sprit strange things so why is that not a reasonable interpretation of the events of the way this would play out it is under essentially any unified i think it's all circumstances i have in my head for some reason and in all circumstances doesn't matter either those who do and we know that that's not possible because there are certain legal obligations that would preclude the paper from saying under all circumstances yet so we start with that so just one opening salvo before we get into the underlying so e way this case goes it would have to go back because the district court row lied on that fact to come to its grant of the plymouth injunction agree ok so another thing in this line of reasoning that the district court used was it said that the dues payoff and the union security were both contractual as opposed to statutory obligations and i think that the recent supreme court case at least on the dues payoff shows that it was in fact statutory and now maybe not so much but at the time of the january  if it was statutory right there was a improper basis for the district court to rely on right because you have a statutory obligation could've done different agree ok so here's the question i have for you union security it's it's not clear i mean obviously  rises from statute but how do you how do we apply union security there i understand how do pay off was an improper conclusion but i don't understand how we can say the same of union security i think without knowing the language here is this confusing for this reason typically in collective bargaining agreements to do just check require the employer to fire that employee and cited in our papers i think is the peerless careless case which says that that union security clause expires with the contract separate away from that the dues check off where the n l r b has gone back and forth about the obligation to check off dues but there's no doubt that the union security clause and when the contract ends what's been less clear is the n l r b shifted ground changing fifty years of precedent but that there was a statutory obligation to check off do both expiration and x changed again in december but i understand if you know security doesn't survive and the district court says that your persistence or your continuing compliance is evidence of a contractual obligation rather than  statutory obligation why isn't on that point the district court right because i think the district court was referring to or checking off dues but there's nothing in the record that writes it indeed the opinion reflects the separation two right it says dues pay off and union security i'm not so sure it differentiates them very clearly there's no evidence in the record for example about whether anyone was ever fired for failure to pay dues post expiration is simply not in the record with what but the district court said about this was the that the posters that did not dispute that it continued to check off dues well that was raised by the union in their response to were statutorily required to do it so it doesn't evidence and wide contract why i totally get that but let me ask a broader question because i am still confused by the security district courts point as i as i took it was there are certain actions that the paper has taken that are inconsistent with disavow and and for for right or wrong to stay off and union security are two of those action we don't need to discuss anything more about those pale totally get it right but if you're if union security is discretionary and you continue now now if you tell me that the district court's wrong as a matter of law and  get it but if it's discretionary then why isn't that avenue c e o sufficient to say ok they're engaging in things they're not obligated to that evidence that the disavow could have been as lovely we we write the opinion the way you want it to be britain where is it in the record that union security is an obligation so that there's the so so that we could say that the district court and its assumption with regard to that being discretionary or voluntary is wrong where would i look to for the site for that if you want to use another word for it but you know the meetings so even if you go back to the supreme court's looking decision the references to union security and dues chuckle sometimes spill over into each other spoken about together and what i i follow up on which you know i was talking about if if you if there if the record before us got the reasons just the record in front of us and demonstrates the district court did not clearly her in determining the union security component was still being respected therefore the union was still recognized it had a fact in front of it from which to infer there was a course of conduct are not always just doing grissom into the two pieces i did the record doesn't reflect whether any employee was fired after a contract expiration good morning good morning so you probably have watched the last few minutes and said wow i thought this was just going to be fifteen minutes well we'll see but i know that myself and my in order and maintenance of the status quo while the parties international dispute proceeded to arbitration where you could tell probably from the line of questions that we were all three of us were putting to your adversary it's behind fact the point that we've been interested in asking about a notice that there is no longer term a voluntary mutual agreement to proceed to arbitration and now it's a unilateral decision that stood by the company isn't that a significant disavowal of what had previously been a mutual agreement to proceed to return to dispute resolution what i think when the post is that said that it would arbitrary cases on a case by case basis in a sense that was just a recognition of disagreement i should say among the parties that if a series of facts arose before expiration there's an obligation to the to agree even arbitrate that consists of the terms of the collective bargain agreement we're now going to focus on the of dense that led to the dispute happened after the expiration so sometime after april st two thousand and seventeen according to this letter it seems to be it could be read to communicate that for such events we the company are going to decide that under a valid c b a that hasn't expired the company has to arbitrate cases on a case by case basis so the recognition that they have to post expiration arbitrary cases on a case by case basis is essentially the exhausted and it comes to the stage of the proceedings which should go to arbitration that the paper always has the discretion to engage in  example of something many employers regularly argue that they don't have to arbitrate something that does not allege a violation of the contract for instance they wouldn't be obligated to arbitrate that but something that were a violation the contract or alleged violation of a contract that is to you interpret that letter to be just saying what self evident which is when the grievance process runs its course and we get to the point where arbitration is supposed to even if you know your are doesn't view that as a reasonable reading there's nothing about that that serves as a specific repudiation arbitrating something on a case by case basis is not a repudiation of their obligation to arbitra opened but that sentence follows a general repudiation of the entirety of the contract right and so we read this in the context of the whole letter so help me understand why the greater doesn't include the less sure so if then goes on to carve out arbitration as something that it would continue to consider on a case by case basis so it's essentially carved out arbitration the arbitration procedure from those things that was repaired the best reading of this letter the coun you can ground me in some text that would give you that alternative meeting i think you've grasped that you know that the position that that we have which is that they carved out arbitration is an exception to their whole contractual  repudiation of other things in the contract and i also think it's worth noting that here are the obligation not to strike or engage in a sort of work stoppage generally the quick quid pro quo for a  agreement arbitrary that ensures that industrial disputes the union may have will be resolved while also giving the employer some assurances that they're not going to face a strike because of a disagreement here there's been no work stoppage there's been no economic action against the employer on behalf of the union i think that's further evidence that the arbitration provision has survived under lutes well look let's go further than january th for the moment ok ok i'm not quite sure you answered judge maybe's question let me let me let me sing why in asking you to take a look at the entire green and the ultimate question that we we all are grappling with is why isn't this a disavowal the paper says it's a clue or just about you say not and the specific question the judge judge media has to do is when you look at the preceding sentence talking about what obligations continue and what obligations don't that leads you to read the last sentence of the nd paragraph in a particular way right so it would be hopeful if you would say number one why is this when you when you look at the letter as a whole why isn't a disavowal now i understand your argument just looking at the last sentence that all it's saying is arbitration sometimes and not arbitration others but when you read as a whole when that paragraph is read as a whole is it that  it's confusing using just in your papers that there was a better way to say it and i guess part of my question is is there something confusing about about this so that your suggestion is the better way makes more sense i know those are a lot of questions but i think you understand the general parameters of what i'm trying to grapple with yes i mean i think well on the  point i think that when they say that all contractual when the post is that says all contractual obligations will cease and they will only are honor statutory obligations and then they go on to carve out as i was mentioned before they go on to carve out arbitration i think it's the union's perspective it was not i think there are a number of different things they could have said to repudiate you know part of the arbitration provision they could have said that they wouldn't continue to honor the status perception or perhaps a better way to say it from from your perspective and i think that's a great point because if it's in the former then grounded in ordinary principles of contractual interpretation we would have ambiguity and we need to resort to extreme zick evidence to understand it in and that takes a step but it's the latter then it really doesn't rise to the level of something that we in this posture can begin to really right so is it in  for some things they could have done and we wish they had and where do you see in the text one answer or the well i think to tell us why without saying cause it could have been written in a different way what makes this sentence ambiguous and i hate to go back to the same thing that but to us it is ambiguous because they state that they will arbitrate on a case by case basis that's not a full repudiation i think that's language that shows that there's another way they could have done it so are you saying that the case by case basis representation here says there's a willingness to continue to arbitrate despite the fact three lines earlier we said we're not going to work for all of the contractual obligations have expired that's correct post post march arbitrate are you referring to this this dispute or are now are moving forward  there is nothing that they have to arbitrate from a stat from statutory perspective correct ok so the only thing post march thirty one of twenty seven that you believe  arbitrary be appropriate is contractually correct i mean the union would still have other rights to pursue an unfair labor practice before the born about wouldn't be with respect to arbitration arbitration arises as a contractual is there any evidence in the record that the paper post march thirty one only seventeen engaged in arbitration with regard to contractual obligations that arose from the sepia is your question whether they've actually taken anything to arbitration since exploration is not what you're asking i thought my question was clear but obviously arbitrated an obligation that arose contractually i made their alerted states very specifically we're going to adhere to our statutory obligations and not our contractual so i wan know is there an instance where they are been traded something contractually the right something that they were contractually obligated to arbitrate and not statutorily obligated there's nothing in the record i'm not sure i understand the question i'm trying to figure out what what would woods what's clear about the question if we determine that the last unless we determine that the last sentence a paragraph or two is ambiguous right you lose yeah i think if you were to find that they had effectively disavowed their obligation arbitrate yes i think we would but that's that's we don't have that here that's like i i know that but what i'm trying to figure out is is your it is the crux of your argument that that sentence is inherently intrinsically ambiguous it's not a i'm not case law that talks about that the filler to continue to maintain the health care benefits could lead to irreparable harm but could you find any case law that says the failure to maintain employment status or wages is a re no there there's no cases that we've cited in our brief that says mere loss of wages i think you have an argument for that because it kind of goes back to is isn't it at a minimum as the district court's injunction overbroad by by requiring it continued employment and even a wages where that those circumstances are not good but they're not irreparable because they can be recompensed with money where the health care falls into a different category under  let's set aside the health care part because i think we think that is a record all reparable harm but sort of addressing the wages in the reinstatement issue i think the unions bases for an irreparable harm the is you know if the host is that is allowed to continue doing those sorts of things it would really create some serious negotiating leverage for them in an ongoing relationship and how is that a reputable i mean we're in equitable relief before united states district court how is that irreparable mean is it the court's role to even be insinuating itself in even considering a leverage that one side might have over another right and i do think it is tough it's you know it's sort of an extra couple be linked with the health care issue as well because you know they have health care through their employment with the post is that i understand i understand that they have that but if the injunction word tailored to read that the status quo needs to be maintained with respect to provision of health care benefits because the failure to provide it could lead to irreparable harm that's that's that's a record one hundred dollars but i still don't follow you on how lost wages are record but when when you can be valley hospital came down which was the decision the came down in december of two thousand and nineteen i was a board decision which overruled that decision and apply it apply retroactively to pending disputes and this dispute was pending so our position would be that ok so that the retroactive effect makes the nd decision by the district court that would then because valley hospital at that time would apply because  saying all contractual obligations expire the statement about arbitration farther toward the end of the letter is consistent with what is said earlier in the water that the company will observe its legal obligations but all contractual obligations expire and the problem is arbitration is different it expires there supreme court decisions about when post expiration grievances may or may not be considered and so the the statement is when when your adversary says in their papers that arbitrate only cases that the law d requires that that language is synonymous with the language that you've used in the last sentence of paragraph t you not see a significant difference that you know whitten post expiration the grievances post expiration grievances that are will arise under the contract that expired contract only where they involve facts or occurrences that arose before expiration where the post expiration action infringes upon her right the best of her accrued during that now expired collective bargaining agreement or were under normal principles of contract interpretation you can look at the expired agreement and see the contractual rights survive the expiration it's not in the record here there was a little letter was sent regarding the arbitr of the underlying grievance here taking the position is not in the record the amount of the that would that standard is not an arbiter of agreements  all i have thank you very much i thank you