and arbitration procedures these procedures must st be exhausted and courts must water resort to the private settlement mechanisms without dealing with the merits of the dispute this case is a claim by cisco that local one hundred and twenty dollars violated the no strike clause of their collective bargaining agreement when its members refused to cross a picket line established by a different union local forty one that is a claim under this court's decision and val mack when the supreme court's decision in buffalo that clearly is arbitrary under the collective bargaining agreement and a claim that clearly had to be processed through the grievance procedure that was not done claim of exhaustion is either futility it would be useless to go through the procedure a claim cisco never made here or that the procedure is not available also a claim never made here because it clearly was available so that's what distinct concept we also did not participate in a protracted litigation this was eight months discovery finished early in the parties proceeded swiftly to dispositive motions  s case a short period of litigation the k b s was also eight months and one which concluded we had the party claiming that the case should go through the grievance procedure presenting that argument to the board was that ever raised before or was that the f where the union never raised the grievance arbitration procedure in a clearing immediately when this case was filed local one hundred and twenty raised exhaustion and it's not arbitration it's exhaustion of in this context your honor i would say no for example this court in a b f did not say that the union there had waived its right to go to the grievance procedure by having failed in that eight month period where they were litigating their their various motions but had failed to present a motion to compel and i would also point out that in in many cases where employees bring claims directly against employers that are subject to into arbitration before they have even filed a grievance and that would be a horrible rule for this court to have to condition waiver on a a compelled motion to proceed to arbitration early in a case that would have the effect of multiplying the cost of litigation for employers much as unions but for employers by a tremendous sum of money is not really a question then of whether you've acted inconsistently with that right i do agree with that your honor the the question here is was local one hundred and twenty trying to have it both ways and other words were we laying in the weeds on our defense that the grievance procedure was required to be exhausted hoping that we would you know hit the employer with lightning on a different defense and then only belatedly after we lost saying oh my gosh now we have to come up with an a new idea nothing like that happened in real life the therefore be dismissed we have arranged at the earliest possible point in the answer and then again in the rule twenty six f report that this was our intention along so it was not as if we were waiting and seeing or writing the fence and then belatedly trying to scramble to come up with a they new argument they policy judgment you are angling at your honor if i could guess is is that there should be a new rule one that didn't appear in peterson or would he or an a t f that if a party wants to assert that the collective bargaining agreements grievance in arbitration procedure is a political they have to bring in early  motion under the federal arbitration act and in order to force the other party to stay the litigation and moved directly to arbitration there's a problem with that of course in this particular case sysco the party with the obligation to file a sides or is it primarily a union used tool with the companies or not in does it matter that the procedure is i would i would just accept the language seems that the grievance is coming from the employees though there are specific references in a grievance group a procedure that show that both parties can file grievances one for example is in the section where the reply to the grievance must be given it says the reply i can be given by the employer of the union now that the union would never be replying to its own grievance or to an employee's grievance so that indicates that the employer can file grievances under the procedure and explicitly in step five of the procedure it allows either party the employer or the union to move the case to rd party binding neutral arbitration how to step one work under your theory so it says any employee must discuss it with his immediate supervisor and so would the employer as the employer's immediate supervisor that the employer would talk to at i think it's implied in that case that since the employer would be making a claim against the union and that is what it was language yet to read read some words into what i thank you i don't think so your honor lee it's not a big reach i mean remember that this language is virtually identical to the language in the drake bakery's case which the supreme court held did require an employer to bring a claim for strike damages under that language so if it is a an implication it's an obvious one not not an arcane reach which case that you just mentioned that supreme court case that dr bakeries that cited in our brief and if the employer couldn't get a grievance into the system how would the employer ever ask for arbitration as it says in step five so it's clearly the possibility that those cases will go up through that five step procedure when the lower court got to the merits it made serious errors of law concerning whether a strike is primary or secondary i want to point out again in this case conceded that the strike was not a secondary strike another words this is not an action that could have been brought under section three hundred and three of the labor management relations act because it's not secondarily that means it's a primary activity and that means it was protected by article twenty four dollars but at a very minimal local one hundred and twenty dollars was intitled to have an arbitrator chosen under the agreement make that determination and make that interpretation rather than have a united states district judge make that determination i want to reserve the rest of my time for rebuttal unless the court has for the questions thank you line outside of cisco minnesota's food distribution center in mounds view and shut it down for more than fifteen hours causing a ripple effect that prevented the company from servicing more than ninety percent of its customers for several days leading to a loss in profits of more than one million dollars we ask that the court affirm in all respects the judgment of the district court we have i'll address two points the waiver issue we exclaim to this court the union did not promptly seek arbitration it did not do all that it could do to ask a district court to stay or dismissed the case have to do all that it could do or could it simply do enough in terms of raising the issue before the court and its initial replies well your honor the union put in an affirmative defense in its answer to the complaint claiming exhaustion of remedies and so forth it raises the same point in the rule twenty six dollars f report which the parties put together with submitted to the court but contrary to what councils to guess it's not a self arbitration by filing a motion to dismiss the case or a motion to compel arbitration at an early date and as a matter of fact although the union cites a number of cases in its in its brief and i'll address  two or three cases that counsel just mentioned b f that was a case involving preliminary matters in that case the issue was whether or not there was a duly constituted a group of trust wrangling that took place in this court and in the lower court related to what we would call shape of the table issues about whether the employer could go to arbitration there was no decision the merits likewise drake bakeries in that case the supreme court in more or less a parallel version of the supreme court's decision in maddux which is republic steel which says that employees must exhaust  found in research has this happened automatically in every single case the party who desired arbitration filed a motion in the court and that is true enter a bank raise and that is true in if that's true in every single case what is the nature of the contractual agreement to use the grievance procedure what does what is the company's commitment to that procedure the company it's like any other contractual agreement parties can follow it or not follow it and if they don't follow it it's up to the other side to complain about it it's the same with any other provision of a collective bargaining agreement for example a management rights clause the employer can do something under the contract it can issue a rule it can discipline employees and if the union disagrees with the action it files agreements and it takes it up to the question that was asked is this the kind of grievance procedure where the employer can file a grievance we say it is not innocent matter of fact in the decades long history between the parties the employer has never filed a grievance in this case and it's brief the union omitted most of the paragraphs of article twenty two within five days of the discussion well that's at the step one stage what does that refer to the union says well that must refer to an employer grave it's not necessarily sometimes the grievances filed by employees are also against the union they can have a grievance against the union for example if they think that something improper was taken out of their paycheck for do struck off they can have a grievance against the union for example if they think that the seniority listing and correct so there are some occasions where most of the time the grievance of an employee is going to be against the employer but there are some instances where the grievance can be filed against the union and i think that's what that clause refers to party refuses to go to arbitration or says i want to exercise our rights to bring the alternative claim that congress has provided for under section three a want to hang if the other side wants arbitration  simple mechanism for doing that file a motion that is what has occurred in every single case that has been cited to this court the union's claim that somehow it could not pursue arbitration because the employer didn't file a grievance is incorrect if not even silly for example there are cases where an employer refuses to process a gr litigated the case extensively it was the st out of the box taking depositions and it took three or four depositions we served written discovery it responded to written discovery and at the clinic collusion of the discovery period instead of enough to simply put it in your answer you have to do something about we'll give you another example we have for example under title seven we know that it's a requirement that an employee  what if the employee doesn't file a charge usually they appended to their complaint when they file in federal court but if they don't does the case get dismissed because somehow the district court scrutinizes it union and nothing that the union has said should convince this court that it wasn't playing a game that it wasn't following a strategy to have it both ways as council court c exactly what the union did here on its plain language and i just want you to walk through and tell me what the employer's position is on that certainly are honored the union has made a distinction here between primary and secondary  a fairly it's a very detailed and somewhat or kane area of federal labor law but let me try to summarize the issue the picket line clause cannot apply to protect the conduct of the union that occurred at the home base the place of employment of the employees that's not the purpose of the picket line clause it will st of all the distinction between primary and secondary when it comes to a sympathy strike and whether or not sympathy strikes were waived by virtue of article either being protected or not protected included in the no strike clause or not included in the no strike clause to accept the unions argument would allow to get a work around a back door to  clause because oddly union would have to do is invite another teamster union from around the country that has a complaint with some other operating company of a large organization to say come here and put up a picket line where they could not the same employer the cases that it relies on and like morrell and standard concrete and so forth those cases don't involve the same company having contracts or different bargaining units with the same union for different plants each one of the cisco operating companies is separately incorporated separately managed has its own officers and more importantly it has its own collective bargaining agreement with the different unions there's no connection here whatsoever between local forty one in cisco minnesota as a matter of fact local forty one local forty one's business agent who organized who started the strike picket line admitted they don't have a beef with cisco minnesota there was no labor dispute point of view which is they thought the best way to exact concessions from their employer was to go after another cisco company and so that would seem to be a little different case than what you're talking about you're it's actually the same thing in the back when i think back in engineering is the it's circuits opinion they did not there's no evidence in the record at all all that these companies operate together that they have any common management they have common policy they don't have a common contract it's they're completely separate companies in their spheres that's how they operate and their fact that they are subsidiaries of an overall corporation does not make them quote unquote the same employer the allied akron applies largely to you for example struc work is being transferred from one company to another so that's really not i don't think the applicable point the union is attempting to introduce confusion here by saying it's either primary secondary that's really not the point the point is that local one  has a very solid brot no strike clause in its contract and it agreed not to go on strike throughout the entire case up until the moment of summary judgment the union claimed it wasn't on strike but this was they're delivering at a customer's location where there's a strike going on let's say at the restaurant the employees of the restaurant are on strike the truck driver wouldn't have to cross that picket line and there's a procedure for that you call ahead a manager of the customer comes out  gets the product you drop the product outside the picket line and then everybody's happy that's the way it works the other reason for the inclusion of the word primary is that they have to identify it as a primary strike at the other location because it would be a violation of section eight before the national labor relations act and possibly the hot cargo provisions of the act if someone refuses to go through a secondary picket line secondary activity is by and large outlawed under the national labor relations act council when we're looking at the meaning of the no strike clause in the collective bargain agree just john morel require us to go outside the language of the agreement to things like history of bargaining between the parties i'm not sure it requires it it permits that it says that you can look at that if it's unclear in this case we believe the district court got it exactly right the language is clear in unambiguous that strikes are prohibited and that it's bro enough to include sympathy strikes and i believe the judge magazine got it right on that score that's one point i did want to call to your attention lest i forget they any and makes a great big point of saying that there's some kind of agreements here and a talks this is what the union said at oral argument the district court regarding the grievance this is the only part of the record with the union says well there's a grievance here there was no grievance this is what was said in the district court but council the local union in this case filed a grievance about the company's instructions to our members contrary to article twenty four saying that they needed to report for work and cross local forty one's picket line this refers to a letter that the company sent out afterwards point of it is that the union claimed in its statement to the court that filing the grievance over the strike on the damages was not something that it had to do it's our problem there's nothing in the thing in the contract nothing in the federal law that would require the employer to file a grievance st before seeking its remedies under section three a one way or the labor management relations act it's up to the union to pursue arbitration at that point thank you pro your rebuttal thank you so i want to answer directly your question judge us about morale morale clearly says that a generic no strike clause such as the one contained in this contract without more does not waive sympathy strikes the court directed and morale that the lower court would examine the bargaining history the parties course of conduct an any other relevant information concerning the intent as to whether or not there was a waiver the employer is the one who bears the burden of proof on this they have to show by clear and unmistakable evidence that there is a waiver in this case this was there was no trial here that there were no factual findings by the lower court so was a motion for summary judgment where both parties presented what they thought the bargaining history was and the judge said it's inconclusive that you either go to trial or the party with the burden of proof loses what judge magnussen did instead was to go to the extreme opposite end say i'm going to find now that the language the circuit said couldn't be interpreted as a waiver can only be interpreted as a waiver that was plainly and our counsel could you address the argument that your interpretation of the no strike provision and particularly the  other interference clause that that would basically render that provision ineffectual the way that you interpreted if you would allow sympathy strikes notwithstanding that broad language i think that the answer to that is the record shows that in thirty years there have been true instances including this one as one of the two where a stranger picket has showed up at mounds view it's not something that happens frequently it's i mean it s a ghost story to think that unions are going to just randomly send out picketers to go and shut down companies for no reason i want to i'm not sure that he answered his question now because he's asking what is covered by any other what is it any other interference or that that i mean what would be covered other than a simple strike i think that was his question or at the very least that's what i'm interested in you mean under article twenty four under article twenty three right so it says  or any other interference with the operation of the business what is encompassed by that if it doesn't include sympathy strikes folk boycotting their customers informational picketing activities you know to embarrass their board of directors i mean there's all kinds of stuff that would be covered by that they they point regarding article twenty four dollars is that it simply says that employees have the right to refuse to cross quote where a union is on primary strike close quote that does not limit this to the locations other than the premise of cisco and again sco is the party with the burden of proof here if they were not able to establish an undisputed facts of the right to refuse to cross that is preserved in this article they shouldn't have gotten judgments we should have gone to trial and the trial should have been before a joint grievance committee and if necessary an arbitrator i want to just win in the moment i have left just to address that the claim that in all of these cases a motion to compel arbitration was required that is true only with respect to certain commercial and bankruptcy cases that have no grievance procedure and other words there was no preliminary procedure to go to so the party for example in  who is prosecuting a bankruptcy claim in the wall and case for example couldn't go to a grievance procedure and the court said you should not have litigated the proof of claim then the objection to the proof of claim and then finally  no case involving the grievance procedure has this court ever required a motion to compel if you look at a b s the case was simply dismissed out of hand if you look at the woody case the case was dismissed and likewise in peterson i