now please the court i'm self rawson represent appellate american parent president lines and i'd like to reserve five minutes of my time as your honors know this is the second time that a p l has had to come before you in connection with it so i'm are a section three zero three case against the and i suppose that's not entirely surprising because secondary boycott lawn general and section eighty in particular has been aptly described as one of the most complex areas of labor law in now its second attempt to grant summary judgment to the union so we submit the district court once again got its ruling wrong and we ask this court to again reinstate a peals action in the few minutes that i have available this afternoon without intending to abandon any of the other arguments made  brief i'd like to focus my remarks primarily on one grounded a p l raises in this case and that is that a tribal issue exists that as applied to sampson tug and barge the union urge in the arbitrator adopted an interpretation of the l a the master contract as a prohibited union signatory agreements and by so doing the union engage an unlawful secondary activity  that means prohibited you use signatories ok was clear that a signature union signatory agreement one which focuses on union affiliation and which prohibits an employer from sub contracting work to another employer who's not signatory to some union contract violates section eight this court recognizes much in its in its original panel decision and second that the unions pursuit of a grievance and arbitration to secure a union signatory interpretation of a collective bargaining agreement is considered coercive activity in violation of an all or a section eight before double  a l a under which sampson who's currently doing the disputed work could be considered a permissible sub contractor of a p l if it agreed to become signatory to an i o w union contract but critically and is there another agreement that a p l has signed not that a p l has side but what the arbitrator determined is that sampson be could be considered a permissible sub contractor i signed a union compliance agreement a compliance agreement is a separate and distinct union contract from the l a master agreement a compliance agreement is one where an employer agrees to conform to some but not necessarily all of the terms of a nother contract in this case presumably the l a but what the arbitrator said was that samson did not have to become signatory to the a l a didn't have to become an employer party to the l a it would be sufficient if it became signatory to this different union contract this would presumably be a contract between sampson in unit sixty for the work are correct that is correct and that contract might include a requirement that sampson pay a union wage scales and would have to make contributions to the pension depends on what that contract negotiated agreed to would include but there is no claim that that that sampson currently is not paying prevailing wages but would it also well i guess by the virtue of fact that it would sign a contract it would have to use i l w u longshorem myself in the mind of me but and what internal union agreements that they may have come to with respect to other areas that would be i realize it's not a party before us but that would on its face appear to be a breach of the implied well there and there are two different i'm sorry there are two different grounds a p l s raise for liability here one is the double a it would double i a argument which is the union signatory argument there's a second argument that we say that the union also violated a separate provision double i b which is whether or not the union acted with a cease doing business with objective as opposed to a work preservation object now that that issue has nothing to do with the it from is the answer to judge to schumer's question the disputed issue of material facts is over the question of whether a p l controls the work goes to whether a p l controls a work and it was considered in the double i'd be it's a two prong test right correct the first prong is whether or not it's fairly claimable work correct the second and the second clause prong is whether or not a p l is the employer controls that work that's correct but it seems to me your argument is before we even get to that that's correct under the that those always are those are arguments you're going to make second but your first argument is we don't even have to apply the factors that's correct because it's somehow illegal right what they did that's correct the minute i understand if you can signatory argument the double i a argument doesn't deal with those factors so under the union signatory argument sampson if it signs the separate union contract can be a permissible sub contractor if it doesn't sign this separate union contract the compliance agreement then it can't be a permissible subcontractor that's a classic union signatory agreement and  theoretically then a p l would not be able to continue using sampson to handle that work at seward under the arbitrators ruling that's correct unless unless samson agreed to sign this other  agree then a p l is going to find somebody else to do it or we're not challenging that the underlying arbitration agreement we're seeking our damages for the union forcing us to pay double right it seems to me that the argument against your argument you're now making and that's why i'm asking it is that you're approaching this from an employer's perspective rather than the union's perspective i think i'm applying it from the legal perspective well under in that i understand what your argument is but i was trying to understand their argument back to you maybe a lot of them make it and frankly i don't think the union has actually ever responded to our union signatory argument as it members or the individual members it doesn't matter with respect to the union signatory argument for sampson because sampson is not being asked to become a party to either the a m a multiemployer unit or the a l a a as the union argues is irrelevant with respect to the sampson because samples not being asked to enter into either one of those from the unions but it but as i understand it even as interpreted by the arbitrator the agreement would merely require if you will the loading and unloading of the containers owned by and they will a signatory to be performed by the labor but they arbitrator also says that sampson can continue to perform the work if it signs a compliance agreement which is not the a lay agreement if sampson signed a compliance agreement and hired i o w labor that i'll give you labor would be part of a samson  argand unit sampson and would have its own contract with the isles of you would be part of a samson bargaining unit that work would not be done under the lay if sampson chose to hire on a temporary basis on a particular job basis individuals out of the union hiring hall when they were dispatched out sampson to work under samson's compliance agreement they would be part of the sampson collective bargaining agreement if those same workers were dispatched out on other occasions to a l a members they would then be working under the a l a bargaining unit but that's but what the union is seeking to do here is its seeking to benefit its members generally yes the union signatory concept that they've advanced would probably provide an additional economic benefit to union members because it would give them additional work in the separate sampson bargain unit but the laws clear and this court's the ninth circuit's earlier decision in the pacific northwest chapter of associated builders and contractors makes clear that if the union is seeking to benefit its members generally as opposed to seeking to benefit its members in the primary bargaining unit the a l a bargaining unit that's unlawful and that's secondary and that's what we have here they're trying to create a separate bargaining unit and give their members additional work but that is an unlawful union signatory provision because the sampson doesn't agree to do that then they can't object in prosecuting its grievance of obtaining a compliance agreement and also that the arbitration awarded so ordered simpson and her compliance agreement both are contradicted by the undisputed record evidence in this case the sole evidence that a p l relies on to argue that the union had a object of obtaining a compliance agreement is that e r site five three three to thirty four this is testimony  charles went where he responds to a hypothetical question in which he was asked if sampson were an a o l a employer and hired longshoreman to perform the disputed work directly would the union have a law a claim for lost work against a p l notably this testimony is not about the union's object of the grievance it's not about interpreting the arbitration award and moreover is simply not about obtaining a compliance agreement rather it's whether it's considering whether sampson in this hypothetical scenario wasn't a lay employer and thereby consented both  alaska wide bargaining unit and to the provisions of the contract that require the assignment of all bargaining unit work to the out of you workforce cou yeah i thought i i read his language to support the argument that  to me is that your site seven thirty ok and i want to the arbitration award itself simply orders a p l to assign directly we know from the record that sampson was asked whether it would agree to do that and it refused to do so so doesn't why isn't that a union signatory clause that's illegal under the act it would be if the arbitrator ordered a p l if that were the only way that a p l could comply with its award here this section of the arbitration award is dicta and further it is actually an impossibility for him he says there are several ways this work he can and must be probably just in the future with longshore personnel what's dicta about that i read that as a direct order to a p o you've got three choices a b or c and if if it chooses a and samson refuses why isn't that a union signatory whatever reason it's not possible to have eagle marine do the work and i guess his client says i want to use samson so that they can use north star or  that a compliance agreement is available as set forth and e r s cite one seventy five to seventy six and one seventy eight this is evidence that a p l submitted opposition to summary judgment the parties abolished  not i mean a p l is is telling us we can't comply with a because it breaches the law you're saying well but earlier in the litigation they disclaim doing that why isn't that a contested issue materials that union had an unlawful object to obtain a union signatory interpretation here there is no evidence that the union had such an object as i just explained the testimony from mr went does not support issue does it not i mean i'll give you for my hypothetical the assumption that there was a legitimate objective to try and preserve work here but that's only the first prong isn't it well also has to establish that the employer controls the work right that is for the work preservation test that's correct right but for whether all three of these directive seven thirty look to me like they are directed to an employer who controls the work and it tells them here are three different ways that you can accomplish the work but it implicitly assumes that a p o is the employer who controls it when you say there can go ahead only threes and i ask you that question it seems like a p l's argument is not we do not control the work but it is whether we control it or not the very fact we have to do it violates the coke i mean they're saying even if we went and force sampson to do something or even if we did something else it's a violation nonetheless it doesn't seem to me they're arguing we don't control all they're arguing is even doesn't matter whether we control or not if you're going to force us to do this you here but in order for there to be a three o three claim there needs to be evidence in the record that the union had an object of obtaining the compliance agreement and there's simply no evidence in the record that the union had that object the brief which i just point does he suggest that one way that a p l could comply with the agreement would be to enter a compliance agreement and the fact that the parties agreed to abolish components and prohibit them makes it even an impossibility that the union could have had such an object i'm trying to get at this because i know this is a very difficult law will be fair for me to apply but it seems to me that bartender's illustrates a point which i am trying to understand the agreement in bartenders was that the case was found to be unlawful because it was a not altering the employer's labor practice but expanding the union to the employers legal lessees but we were still required under bar tenders to apply  factors as i understand it yes we do not dispute that bartenders set forth the legal standard for what when there's a union signatory agreement and i think what is important here is the workforce at issue we're not expanding the workforce to another we're not trying to reach out to another work force rather what we're doing here is this work that's currently being done by me but it is currently being performed by interpretation you need to look at the work of the bargaining unit and here that is a coastwise longshore bargaining unit not the work of others in fact in the cal cartage cases in order for the employers to comply with the work preservation agreements and also the island alec cases many employers were going to go out of business many a teamsters were going to lose jobs as a result of the transfer of the work but the supreme court caution that you cannot look at those losses to those  are obligated to interpret that award in a lawful manner and the reason for this is to promote the federal policy of encouraging labor arbitrations and also to avoid discouraging labor arbitrators from  writing that opinions the facts of that case i think are particularly helpful here for the problem that we were discussing earlier in that case a labor arbitration award had two possible interpretations one gave two reason for denying backpay to in effect an employee one was clearly lawful the other was clearly unlawful the board interpreted those reasons such as they were cumulative or in other words that the unlawful reason w backpay this court however rejected that contention and found that where an arbitration award has possible the two possible interpretations the burden and the obligation of the courts is to interpret it in a lawful way so how do i factor in an l r b versus hotel and restaurant employees and bargainers which i was saying bartenders when it says in general unions signatory agreements agreements that require using you good labor are generally viewed as an effort to expand the unions fear of influence by impermissible secondary pressure in that case there was a unit of employees who work directly for the employer and the employer subcontracted out i believe it was its coffee shop to another company and that right and so at that point the workers that the union was trying to affect were not the bargaining unit they were workers outside the bargaining unit here the traditional work which is set and the nature of the long show bargaining unit is such that the workers that we are trying to preserve jobs for are the same workers who work for a p l and work for all of the l a employers collectively this is not reaching out to another group of employers of employees this is the interpretation of the union sought here is the bargaining unit is covered by the contract as alaska wide so it includes fourteen ports and it includes yes all africa i mean this is sept fourth principle if you look at the alaska steamship case that we cite in our papers that set forth what the l a bargaining unit is and that is an r b unit clarification decision and they're the bargaining unit is clearly defined as the pool of longshoreman who perform work covered by the contract at any location covered by the jurisdiction of the l a so that is alaska or at the fourteen  ports that are covered by the contract conceptual point is while true a p l s bringing two claims one for a union signatory and one assist doing business the underlying facts that are supported by the district court got it right when it granted summary judgment for the union are overlapping in the analysis is overlapping and that is because the reason why this is not a union signatory interpretation but is rather a lawful no subcontracting interpretation is based on the nature of the longshore unit and because of the nature of this unit it includes the primary employer is not just a p l but rather is all a lame lawyer and that is set forth and particularly well it doesn't matter i thought that what matters it for the analysis of whether this is a union signatory agreement is who is the primary employer and here because we have the single integrated workforce there is one primary employer and that is all of  there two are part of an association and two are not part of an association that just basically defines who can sign a contract on their behalf they still bargain one contract and agree to one integrated bargaining unit they set up one system of registration that applies regardless of which i met am here yes that's the current association but there also are two other l a employers those are north star and southeast and that contention not all that those fundamental legal principles not only show that the district court was right on the union signatory interpretation but also showed at t that the district court was right in finding that the work was fairly claimable because what you need to look at for the family fairly claimable analysis is the work the traditional work patterns of the unit and you look at those based on a variety of factors including what work is covered by the contract and here we also have an interpreter and our temper taishan by the arbitrator of that the work at issue is covered by the contract as well as the alaska steamship decision and  e practice in the history of the performance of this work and here the undisputed record evidence shows that a p l hires longshoreman directly to perform the very same work loading and unloading of containers off of it's a definition of what longshore work is the loading and unloading work i don't argo see that as a i don't see any dispute over the nature of the work or i'm having a hard time following your argument is i read in the that a p l didn't enter the seward market and tell some time later i can't remember the date two thousand three thousand five something like that and at that at some point they they started using sampson as  connecting carrier from dutch harbor and samson has me by employees not you and i'm still maybe you can help me explain why why did me but disclaim this work if their employees were doing it on behalf of sampson again i can't testify or explain what was going on in their heads but i imagine it's because this is traditional longshore work and that th carriers are intimately associated with the employment of long shore labor and that's the case even though they typically subcontract work out to terminal operators a c force and also because of the unique relationship that carriers have as common carriers over their containers and these include that they own and lease their containers that they control the use of their containers that they provide for the loading and unloading of their containers and that they produce prescribe the conditions of release of their container thought i thought there was testimony from the general manager alaska operations that even though the containers may be painted with a peel flags on the side of the container that there were occasions where in essence they the word is least or allow their containers to be used by others and the containers would be filled with goods belonging to some other ship around and moved around  p l needed the container back what is your position that that when it is being used by another ship or let's say in seward that a p l still controls that work by whoever's stuffing the container empty containers sitting on the dock at seward that their frozen seafood customer can't use for the next month and so somebody else comes along and says we'd like to use those containers and  presumably a p l will for a fee let them do that and so is it is your position that at that point a p l still controls the work that is our position but i want to be clear that that testimony does not is true that i l w u longshoreman load and unload the containers in dutch harbor but once it is on samson's barge bound for seward it's sampson and its employees who handle the containers there yes so the power is a p l controlling the work in seward if it's sampson employees who are doing the work because a p l has the ability to choose to hire sampson or not and also to to set the terms and conditions of the use of their containers but against her own condition is  arbitrator ordered that you can only use sampson if it agrees to use i l w u labor why doesn't that violate the union signatory clause that is a possible or perhaps a possible interpretation of the arbitration award but to have a claim for section three o three there needs to be evidence in the record that the union had an object to obtain such a compliance agreement and is simply no evidence for a record the only thing we know for sure is that under the arbitrators award at the request of the aisle w a p l is now paying double they have to pay these time cards for all the work that understand a p l s position is the damage that a p l has suffered if there is liability under three of three that's correct ok and the only way that a p l can avoid continuing to incur that damage is to convince sampson to use i l w u employees or to do the work itself yes it's right it's to do the work itself it's not because the interpretation or the suggestion of a possible way to comply by the arbitrator is actually just false and it's further not something the union ever sought to obtain throughout the process of grievance relevant to the issue of whether e p o controls were a sigh which evidence the evidence that we're talking about with the time cards and here's how you avoid liability it is  evidence of that a p l has control and that's the fact that a p l has the ability they may not want to may not be in there they may think it's expensive or not in their business ventures that the cost of entering a contract they can hire longshoremen directly they can bring a manager or supervisor to seward too so that sub so that they can hire longshoremen directly to perform the work at issue how does bringing a manager to seward solve the problem you still have to as they don't have their own tug and barge fleet right so this would require a modification of its contract with sampson so that a p l would be able to perform the work directly itself that they don't want to do that has said they don't want to narrow view of the evidence when this suggests there's no evidence what the unions object was and i think that on a pointed out of mr once testimony and i would just direct the court's attention to go to the control issue is it a pos contention that say to sampson or whoever we need to do and do what you're suggesting even if we could doesn't matter you violated the agreement and you're right as well your honor and you're both right because you're talking here we're talking about two different it is so where is your evidence that you don't control them ok so we don't get the right of control as to find under an l a n l r e law is not the right of an employer to cease doing business with another contractor if that was the case then the second issue of the two fairly claimable right of control would simply mean an ability to a seed to the union cease doing business with intent that's not how it's applied and if you look nevins realty case explains it well i understand my only could suggest my only worry is i'm here on summary judgement so i've got to find if you will that evidence which is contradictory to the evidence in the record that you don't have control and the evidence is that the work that sampson's cargo handling employees who are currently me boom is the work that has been done has always been at the control and sufferance of sampson sampson was the one who decided back before two thousand and three before a p l even entered the seward market that it would use north star it later changed its mind sampson later changed its employment hiring practices to instead use its own directly employed workforce who are represented by meta sampson is the only party who has the ability to decide whether or not sampson will continue to use its me to represent employees or will go back to using northstar a p l cannot force sampson to change its employment practices the only control that a p l has here is an ability to cease doing business with  you're saying when she said well you know you can do the work yourself meaning the longshore work he's mistaken as a matter of law that we can i mean  isn't that right give amounts to the right to control the work we don't think that's of the right of control as defined by taking the world away from from an existing contract or we think that would be a seeding to the seas doing business with intent how do you do that that this all goes to the do i call the year i'll go work without taking it away from somebody well you could go without doing that an employer can control work if it which i now quote however severe the impact of primary activity on neutral employers it is not there by transformed into an activity with a secondary object if it's so i said to myself well based on that just because a p l asked to cease doing worth with sampson how does that offend eight before be little lie doesn't seem like it does so i'm having a tough time if you will swallowing your argument that just because you have to quit doing business with sampson that somehow been offended your honor if that was the case then the second requirement is a nonexistent requirement it simply says that if a union wants to force an employer to cease doing business the employer can always to see to the union and cease doing business and therefore has a right of control because it's been cowed by the union that's signatory issue where you've got an unlawful contract you've got a contract as interpreted as sop by the union which says sampson gets to be a permissible sub contractor if it signs this separate agreement but it doesn't if it doesn't sign the separate agreement that is a classic union signatory contract and this is a unitary summary judgment motion if part of it isn't proper the whole thing has to be sent back and you know also i would point out the union said again and raised apparently as an issue with belief that a p l containers were handled by north star before two thousand and three that is a material dispute if it's if the union can considers that to be important and it keeps mentioning it that is material disputed fact and indeed if you look at the district court's order granting summary judgment i believe it's footnote three it recognizes that the disputed issue and if unloaded at seward right where they know that no other product would the containers would come chafee's on trucks and be trucked from anchorage overland to seward there wouldn't be any water connection between dutch and and seward so the containers would go empty containers would go by truck from anchorage everything bridge to seward they would get loaded by the customer they would then get back on the track get truck back to anchorage and they would get shipped over by sea from anchorage to dutch harbor so seward as a port is no longer is used at all the shipping part of it would be from anchorage to dutch harbor and there's no dispute as to any of that work i think as the customers in seward is that it read the customer's product isn't so so it needs ok and so then barges would